1.1 We provide cloud based risk assessment, asset, site and personnel management, information storage and sharing software called Plant Assessor (the Software). The Software enables you to conduct machine specific risk assessments, pre-operational checks, share documentation with other users and manage machinery safety. While some of the features are free, other features attract a Fee as specified in the Features and Pricing Schedule. If you use the Software in any way, you do so on the basis of the terms of this Agreement and the disclaimers specified in the Software and any Reports. Please read these Conditions of Licence carefully. You are deemed to have accepted the terms of the Agreement by registering your Membership with us.
1.2 The agreement between us comprises these Conditions of Licence and the Features and Pricing
1.3 You are entitled to request amendments to the Agreement prior to registering your Membership. Should you wish to request an amendment, please contact at firstname.lastname@example.org. You acknowledge that we may charge you a fee associated with considering and/or approving a requested amendment (Amendment Charge). You will be notified prior to incurring an Amendment Charge and you may avoid that fee by withdrawing the requested amendment. We may approve or reject a requested amendment at our discretion.
2.1 We grant to you a personal, non-exclusive, Australia-wide, non-transferable, perpetual licence to use the Software and the Reports, on the condition that you accept the Conditions of Licence and Features and Pricing Schedule, pay our Fees in the way required by the Agreement, and otherwise subject to and in accordance with the Agreement.
2.2 The Licence begins on the day you register your Membership with us and ends in accordance
with the terms of the Agreement.
You agree and warrant that you will not:
(a) use the Software for any purpose or in any manner other than as set out in clause 2.1;
(b) use the Software in any way that could damage our reputation or the goodwill or other rights associated with the Software;
(c) permit any third party to use the Software;
(d) copy, reproduce, or otherwise modify or adapt the Software, the Documentation, the Reports or any of our Intellectual Property Rights or create any derivative works based upon the Software, the Documentation or the Reports;
(e) de-compile, disassemble or otherwise reverse engineer the Software or permit any third party to do so; or
(f) modify or remove any copyright or proprietary notices on the Software, the Documentation or the Reports.
4.1 If you order a Report, you acknowledge and agree that:
(a) A Report relates only to the specific Assessed Item.
(b) The safety hazards associated with the operation and maintenance of the Assessed Item have been identified by you by visual inspection, and that no physical testing has been conducted (including but not limited to rope tests, stress tests, structural/non-destructive tests, noise tests, vibration tests, brake tests, insulation tests etc) unless otherwise stated in the Report. Consequently, you acknowledge and agree that the Report may not identify faults that might be identified by more rigorous tests and inspections.
(c) The results of the Report will change through the use of the Assessed Item and with the passing of time.
(d) Any information relating to the standard features of the Assessed Item have been supplied to us by the manufacturer of the Assessed Item and other third parties, and such information should be used as a guide only. We disclaim responsibility for all information relating to the standard features supplied by the respective manufacturer and other third parties.
(e) The Reports you order are generated from the answers you provide to questions you answer. You warrant that the User has comprehensive knowledge of the Assessed Item and reasonable comprehension skills.
(f) You are solely responsible for the information included in the Reports arising from the answers you give to the questions; and
(g) We are not responsible for any mistake or omission that you make in comprehending or answering the questions.
5.1 Nothing in the Agreement constitutes a transfer of any Intellectual Property Rights.
5.2 You acknowledge that we own all Intellectual Property Rights in the Software, the Documentation and the Reports.
5.3 You are licensed to use our Intellectual Property Rights for the purpose of clause 2.1 only.
5.4 You must not directly or indirectly do anything that would or might invalidate or put in dispute our title in the Software, the Documentation or the Reports or any of our registered or unregistered trade marks.
5.5 You must comply with our reasonable usage guidelines and directions with respect to the Software as notified to you from time to time.
5.6 If we reasonably believe that you are misusing our Intellectual Property Rights, then without prejudice to any other rights we may have, we reserve the right to suspend your Membership.
6.1 You must pay us the Fees you incur through using the Paid Features. We will issue you with a tax invoice to your nominated email address on a periodic basis, and you authorise us to debit your Credit Card or alternative payment method for payment for the amount set out in our tax invoice.
6.2 You agree to pay us by Credit Card unless we otherwise agree in writing for you to make payment in some other way.
6.3 You are deemed to have accepted the Fees set out in our tax invoice if you do not within 30 days from the receipt of our tax invoice write to us setting out the basis on which you allege that our tax invoice is incorrect together with any other information or materials we ask for that we believe is relevant. We may arrange a refund at our discretion.
6.4 You must update your credit card details from time to time so that we have at all times during the term of the Agreement a valid credit card with sufficient funds on it to debit to meet the Fees.
6.5 If we are unsuccessful in debiting your credit card (or any other payment method that we have accepted in accordance with clause 6.2), then despite our rights arising from your default we will contact you to arrange another payment method. You acknowledge that we may at our absolute discretion suspend your Membership if we are unable to debit your Credit Card.
6.6 We may at our absolute discretion apply a credit limit to your Membership at any time during the term of the Agreement (Credit Limit). We will notify you of any Credit Limit. You acknowledge that we may suspend your Membership if outstanding Fees exceed the Credit Limit. You authorise us to debit your Credit Card once you reach the Credit Limit. You may apply to us to increase the Credit Limit, which we may approve or reject at our discretion.
6.7 Enterprise/Subscription Members acknowledge that the payment of the Minimum Monthly Fee entitles that Member to Limited Usage Rights as specified in their Membership. If an Enterprise/Subscription Member’s usage of the Features exceeds the Limited Usage Rights (Excess Usage), we reserve the right to invoice you and debit your payment method for the Fees associated with the Excess Usage, which shall be calculated at the rates set out in your Membership and Features and Pricing Schedule.
7.1 All amounts payable under the Agreement are expressed exclusive of GST.
7.2 In respect of any taxable supply, you must pay to us an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by you of a valid tax invoice.
8.1 You must permit us (or our nominated auditor) to audit the records and your premises at any time during the term of the Agreement and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming your compliance with the Agreement.
9.1 You must not, without our prior written consent, use or disclose our Confidential Information unless expressly permitted by the Agreement or required to do so by law or any regulatory authority.
9.2 You may:
(a) use our Confidential Information solely for the purposes of complying with your obligations and exercising your rights under the Agreement; and
(b) disclose the Confidential Information to your personnel or advisers to the extent necessary for them to know the information for purposes related to the Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
9.3 You must implement and maintain effective security measures to prevent unauthorised use and disclosure of our Confidential Information whilst it is your possession or control.
9.4 You must return, or at our option destroy, all of our Confidential Information in your possession or control, on the earlier of our request or on termination of the Agreement for any reason.
10.1 You agree that you indemnify us in relation to any cost (including legal costs on a solicitor-client basis), loss, liability, or damage that any of you, your employees, contractors, agents or a third party suffers:
(a) because you fail to obtain formal advice from a professional adviser concerning whether the Report you order is suitable for its intended purpose or is suitable for particular circumstances;
(b) because of the answers you provide to the questions asked when using the Software;
(c) because you do not answer all questions completely and accurately;
(d) because you modify the Report after it is provided to you;
(e) because you, your employee, contractor, agent or someone authorised by you infringes our Intellectual Property Rights; or
(f) because you breach these terms and conditions in some other way.
10.2 You agree that you continually indemnify us against any cost (including legal costs on a solicitor- client basis), loss, liability, or damage that we incur as a result of your use or misuse of our Software contrary to the terms of the Agreement.
10.3 Our liability to you for any matter related to the subject matter of the Agreement will not include any special, indirect, incidental or consequential damages or loss of profits, and we exclude all liability in respect of loss of data and interruption of business, and our total aggregate liability for all claims relating to the Agreement is limited to the Fees payable under the Agreement.
10.4 We do not warrant that the operation of our service will be uninterrupted or that our service is error free.
10.5 To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in the Agreement.
10.6 Either party’s liability for any claim relating to the Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
10.7 The Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim (including for our negligence) to, at our option:
(a) in the case of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of having the goods repaired, and
(b) in the case of services:
(A) the supply of the services again; or
(B) the payment of the cost of having the services supplied again.
10.8 In the event that you owe us money under the Agreement and those monies are outstanding for more than 14 days, then you are liable to pay interest to us at a rate of 10% per annum calculated from the day immediately following the day on which each liability is due for payment, at a daily rate, until the liability is discharged in full by payment. We may capitalise interest calculated up to the end of each calendar month.
10.9 You acknowledge and agree that we may charge any land owned by you as security for any unpaid Guaranteed Monies and that we may register a caveat against the title to any such land.
10.10 In respect of any claim made by us under or in connection with the Agreement, you agree that to the maximum extent permitted by law, the operation of Part 4 of the Civil Liabilities Act 2002 (NSW) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.
11.1 You acknowledge that Personal Information collected, used and disclosed by us may be used for a variety of purposes including:
(a) to supply the Reports;
(b) to monitor use of our products for the purposes of further development and to ensure they meet your needs and interests;
(c) to administer your Membership and to enforce the Agreement;
(d) for marketing purposes; and
11.3 You agree to advise us in writing if you do not want us to use Personal Information disclosed by you to us for marketing purposes.
11.4 You agree that if you provide us with Personal Information about another individual, you will ensure that that individual is aware:
(a) that you have supplied their Personal Information to us and the reason; and
(b) of the details in this clause 11 which apply to information we collect about them.
11.5 You are responsible for ensuring that if a third party is required to disclose Personal Information to us for the purposes of this Agreement on your behalf or at your request, such disclosure by the third party complies with the Privacy Act.
11.6 If you fail to provide any Personal Information requested by us, we may be unable to license the Software to you.
11.7 If you apply to us for credit terms we may give certain information about you including identity particulars to a credit reporting agency and we will tell you separately about other uses and disclosures of your Personal Information relevant to your application for, or our provision of, credit.
11.8 If we are required to retain any Personal Information by law:
(a) you warrant that you have taken all steps to ensure that we are permitted to do so; and
(b) on reasonable notice, and the payment of a reasonable charge, we will make such information available for inspection by you and your auditors.
12.1 A party may terminate the Agreement by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of the Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;
(b) an Insolvency Event occurs, other than an internal reconstruction with notice to the other party.
13.1 If the Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations that, by their nature, survive termination;
(b) each party retains the claims it has against the other;
(c) your right to use the Software immediately ceases and the licences granted under the Agreement terminates.
14.1 If we discover that we have lost revenue through your misuse of our service or your breach of these terms and conditions (including misuse of our Intellectual Property Rights), then you agree that we may recover from you each of the following:
(a) the revenue we have lost;
(b) our costs of discovering our loss and the extent of it;
(c) our costs of recovering the revenue (including legal costs on a solicitor-client basis); and
(d) default interest on any amount owing under this clause at a rate of 12% per annum.
14.2 Also, if we can show that we have lost revenue through your misuse of our service or breach of these terms and conditions, then you agree that we have the right to audit your operations (at your cost) to determine the extent of our loss.
15.1 You must not assign, sub-licence or otherwise deal in any other way with any of its rights under the Agreement without first obtaining our prior written consent. We may assign this Agreement at our absolute discretion.
15.2 Nothing contained in the Agreement creates any relationship of partnership or agency between the parties.
15.3 If a provision of the Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
15.4 Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
15.5 The Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in the Agreement, no party has relied on any representation made by or on behalf of the other.
15.6 We may vary the terms of the Agreement from time to time by providing you with prior written notice.
15.7 A provision of or a right under the Agreement may not be waived or varied except in writing signed by the person to be bound.
15.8 A party will not be responsible for a failure to comply with its obligations under the Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
15.9 You must pay all stamp duties and other government charges in relation to the Agreement, if any.
15.10 The Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.
15.11 To the extent of any inconsistency between these Conditions of Licence and the Features and Pricing Schedule, the terms of the Features and Pricing Schedule shall prevail.
Assessed Item means an item of plant, machinery, equipment, site or any other subject of a Report.
Commencement Date means the date on which you register your Membership with us.
Confidential Information means all information provided by us to you in connection with the Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of the Agreement, and
(b) information developed independently by a party.
Credit Card means the credit card details that you supply to us as part of your Membership registration or when otherwise required by us prior to accessing the Paid Features.
Documentation means any and all proprietary documentation made available to you by us for use with the Software, including any documentation available online.
Enterprise/Subscription Members means a Member who elects in their Membership to pay a Minimum Monthly Fee for Limited Usage Rights.
Features means the features provided by the Software as specified in the Features and Pricing Schedule.
Features and Pricing Schedule means the schedule which sets out the free and Paid Features of the Software (including the Reports) and the pricing structure for the Paid Features, as amended from time to time.
Fees means the fees incurred by you as detailed in the Features and Pricing Schedule.
Force Majeure Event means any event beyond the control of the relevant party.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Guaranteed Monies means all monies owing by you to us under the Agreement.
Insolvency Event means:
(a) The party ceases to, or is unable to pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
(b) A receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the party or any of its assets;
(c) The party enters into, or resolves to enter into, a scheme or arrangement, compromise or composition with any class of creditors;
(d) A resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the party;
(e) Anything having a substantially similar effect to any of the events specified above happens under the law applicable to the Agreement.
Intellectual Property Rights means all our intellectual property rights in connection with this Agreement (including but not limited to the Software, Documentation and Reports), and includes all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Limited Usage Rights means the right of an Enterprise/Subscription Member to use a limited number of Features per month as specified in the Membership.
Member means the person or entity specified in the Membership.
Membership means an account you register with us via the Website to access the Software.
Minimum Monthly Fee means the minimum monthly Fees to be paid by an Enterprise/Subscription Member for the Limited Usage Rights, as specified in the Membership.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of the Agreement or otherwise affect the interpretation of the Agreement;
(d) the term “includes” (or any similar term) means “includes without limitation”; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
Paid Features means those features of the Software (including the Reports), specified in the Features and Pricing Schedule, which attract a Fee.
Personal Information has the meaning given in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Reports means the reports, procedures and checks as specified in the Features and Pricing Report and made available through the Software, and includes (but is not limited to):
(a) Risk Assessment Report;
(b) Risk management reports;
(c) Safe operating procedures;
(d) Pre-operational/pre-start checks;
(e) Outstanding actions reports;
(f) Appraisal and condition report;
(g) Dashboard reports;
(h) Assessment Scheduling reports;
(i) Location management reports;
(j) Site risk assessment reports;
(k) Verification of competency reports.
Software means the Plant Assessor software owned by us and downloaded by you or accessed by you online pursuant to the Agreement.
User means the person entering data for the purpose of generating a Report.
We and Us means Online Safety Systems Pty Ltd ABN 96 109 565 273.
Website means www.assessor.com.au
You means the person or entity as specified in your Membership.