Terms and Conditions
Online WHS Service End User Licence
GLOBAL SAFETY SYSTEMS PTY LIMITED
(ACN 625 139 479)
THE PARTY MORE FULLY DESCRIBED IN THE AGREEMENT DETAILS
This Online WHS User Licence Agreement (Licence) is a legal agreement between End User and GSS for the provision of the Service by GSS to the End User. End User agrees to be bound by the terms of this Licence effective upon (a) End User’s acceptance of GSS’s Agreement Terms and (b) End User’s payment of the Fee as set out in the Agreement Detail (the “Effective Date”). No access online, installation, or other use of the Online WHS Service will occur until the foregoing conditions have been met. When used in this Licence, the term “Party” refers to either GSS or End User and the term “Parties” refers to both GSS and End User.
1.1 The End User agrees to pay all invoices received from GSS for payment of the Licence Fee that are correct and issued in accordance with the provision of the Services, in the time period stated in the Agreement Details.
1.2 If the End User is paying the Licence Fee by instalments, GSS reserves the right to terminate online access to the Service if an instalment is not paid on time. Any failure by GSS to terminate access is not a waiver of GSS’s rights under this clause.
1.3 The End User will provide GSS with Client Materials and reasonable assistance including, where relevant, instructions and or decisions on queries, to enable GSS to perform its obligations in the delivery of the Service. The obligation to complete, correct and provide accurate Client Material is the sole responsibility of the End User and GSS accepts no responsibility or liability in relation to incomplete, incorrect, inaccurate provision of Client Material or any failure on the part of the End User to provide Client Material.
1.4 The End User will take responsibility for and pay for any costs and expenses incurred by GSS for unanticipated expenses such as third party code licences, domain name registration, that are required to complete the Service.
1.5 The End User must pay for any enhancement to the Service beyond the agreed Specifications, as requested by the End User and agreed by GSS by email from time to time after the Service commences.
1.6 The End User represents and warrant that that its use of the Service does not violate any applicable law or regulation, and agrees to abide by the entirety of the Agreement, these Licence terms and any Policies and Procedures made by GSS in relation to use of the Service, as specified in the Agreement Details, and which are incorporated by reference into this Licence.
2. GRANT OF LICENCE
2.1 Subject to acceptance of the Agreement and payment of the Fee, GSS hereby grants to the End User a non-exclusive, non-transferable licence terminable in accordance with the Licence terms to Use (defined below) the Service and the Documentation (Licensed Materials) by way of online access in accordance with the terms and conditions of the Agreement including this Licence.
2.2 The End User irrevocably agrees that it must read the Documentation provided (regardless of media) prior to using the Service. If the End User does not understand the Documentation it must contact GSS prior to using the Service and inputting Client Material.
2.3 End User acknowledges that any and all right, title and interest to the Intellectual Property in the Licensed Materials is and remains the sole property of GSS or its licensors and End User will not at any time dispute such ownership.
2.4 Except as provided in this Licence, End User must not do any of the following:
(a) use or permit the Service or Licensed Materials to be used other than in connection with its own internal business purposes;
(b) remove or alter any copyright or other proprietary notices, labels or markings on any of the Licensed Materials or fail to reproduce such notices, labels or markings on any permitted copies of the Licensed Materials;
(c) reverse engineer, reverse compile or disassemble, or permit the reserve engineering, reverse compiling or disassembling of, the Software providing the Service, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Software;
(d) modify, adapt or translate the Licensed Materials, either directly or indirectly;
(e) create derivative works of the Licensed Materials;
(f) rent, transfer or grant any rights to any person in, or permit use or distribution over a network of, the Licensed Materials in any form without the prior written consent of GSS;
(g) take any action that jeopardises the proprietary rights of GSS or its licensors in the Licensed Materials;
(h) acquire or seek to acquire any ownership interest in or to the Licensed Materials;
(i) export or re-export the Licensed Materials or any copy thereof in violation of any applicable laws or regulations; or
(j) distribute, license, transfer or assign the licensed materials to any third party, except as specifically agreed by GSS in writing.
2.5 End User must not copy the Licensed Materials in whole or in part (except as expressly permitted by the terms of this Licence) without the prior written authorisation of GSS.
2.6 The End User acknowledges and agrees that despite GSS’ best endeavours the Service may not be available on a continuous basis, and may be unavailable from time to time, due to illness, or other supervening reason. The End User releases GSS, and agrees to keep it released, from all Claims arising as a result of the Service being unavailable for any period.
2.7 Losing your data is something GSS engineers against and seeks to avoid, however, GSS is unable to unconditionally warrant and guarantee that this will not occur. The End User hereby irrevocably covenants and agrees and hereby releases and agrees to keep GSS released from and indemnified against all Claims that may arise as a result of any loss of data.
2.8 The End User acknowledges and agrees that GSS is neither responsible for the availability of, nor the content located on or through any non authorised third party locations.
3.1 End User hereby expressly acknowledges that the Licensed Materials contain Confidential Information of GSS and its licensors.
3.2 End User must:
(a) notify GSS immediately if End User becomes aware of any unauthorised use, or attempted use, in whole or in part, of the Software providing the Service, or the Licensed Materials by any third party; and
(b) in the event of End User’s breach of its obligations under this Licence, without prejudice to the foregoing, take all such other steps as GSS may reasonably require, as is from time to time necessary, to protect the Confidential Information and the Intellectual Property of GSS in the Licensed Materials.
3.3 Without prejudice to any other rights or remedies which GSS may have, End User acknowledges and agrees that, in the event of any breach or threatened breach of this Clause or GSS is, without proof of special damage, entitled to apply for an injunction or other equitable remedy for such breach or threatened breach, in addition to any damages or other remedies to which it may be entitled.
4. NUMBER OF LICENCES
4.1 The Licensed Materials are licensed, and the Licence Fee calculated, on the basis of the number of employees, or contractors, in the employ or engagement of the End User.
(a) Minimum Licence terms are for 12 months.
(b) Fees are charged on an annual or monthly basis.
(c) If, during the term the number of employees or contractors exceeds the number stated at the commencement of the annual
licence period then the Fee charged will be varied by GSS proportionally.
4.2 Users may not share Use of the Licensed Materials with any other individual or organisation with the exception of the GSS supplied QR Code which may be made public if that option is selected by the End User when completing the Client Materials.
4.3 Any additional Use of the Licensed Materials beyond that expressly provided in this clause 4 requires the purchase of additional Licences.
5. GSS WARRANTIES
5.1 GSS represents and warrants it has the right, title or authority to grant the Licence(s) hereunder.
5.2 GSS agrees to provide the Service, complying with any Specifications on the Service or Deliverables, and complying with any applicable standards, awards, laws and regulations.
5.3 GSS does not warrant, guarantee or represent that: (a) the Licensed Materials will meet End User’s requirements; (b) operation of the Software will be uninterrupted or error-free; or (c) installation, access or operation of the Software will not affect other software or systems of End User.
5.4 GSS’s entire liability and End User’s exclusive remedy for defective Licensed Materials or media, including under the Australian Consumer Law, will be the repair or the replacement of such Licensed Materials or media by either GSS or its agents or contractors, or, if such Licensed Materials or media fail to be repaired or replaced, termination of this Licence.
5.5 The End User acknowledges and agrees that information provided via the help section or in any other format does not constitute
professional advice and GSS is not liable for this information.
The content in the help section demonstrates how to use a part of the Licenced Material, and may not work if other items within the system are not configured correctly.
6. END USER WARRANTIES
6.1 The End User represents and warrant to GSS that it has the legal capacity to enter into the Agreement and be bound by the terms of this Licence;
6.2 The End User further warrants that:
(a) no use of the Service by the End User or authorised Users is to be in breach of any law; and
(b) no Client Material provided by the End User (regardless of medium) will infringe the copyright of third parties.
7. LIMITATION OF LIABILITY
7.1 Except as expressly stated herein, to the fullest extent permitted by law (including under the Australian Consumer Law) GSS disclaims all warranties, representations, indemnities and guarantees with respect to the Licensed Materials and all components thereof, all service releases, error corrections, upgrades and releases for the software, whether express or implied, arising by law, custom or prior oral or written statements made by GSS, its representatives, agents or other third parties or otherwise, including the warranties of merchantability and fitness for a particular purpose, other than those set in the Agreement including this Licence.
7.2 Any liability attributable to GSS is limited to the remedies contained in the Australian Consumer Law (Cth). If such legislation applies, to the extent possible, GSS limits its liability in respect of any claim to, at its option:
(a) in the case of goods, provided by GSS in the provision of the Services:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) repair of the goods;
(iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) payment of having the goods repaired, and
(b) In the case of services, the:
(i) supply of the services again; or
(ii) payment of the cost of having the services supplied again.
7.3 Neither GSS, nor any of GSS’s directors, employees agents or affiliates will be liable for any Claim, indirect, special, incidental or consequential damages, including, personal injury, property damage, lost profits or other economic loss arising in connection with the Licence and the provision of the Services, and without limiting the foregoing whether arising in respect of loss of data or interruption of business, or any action brought by a third party, even if it has been advised or should have known of the possibility thereof.
7.4 If a number of events give rise substantially to the same loss they are regarded as giving rise to only one claim under this Licence.
7.5 Nothing in this clause 7 confers any right or remedy upon End User to which it would not otherwise be legally entitled, whether at law or in equity.
7.6 All timeframes estimated by GSS and communicated to the End User are estimates. GSS will endeavour to provide the Services within estimated timeframes. However, GSS is not liable for any penalties, monies or hardships otherwise incurred by the End User if the Services cannot be provided within the estimated timeframe.
7.7 GSS does not accept losses or damages arising from software defects or other errors in the provision of the Service.
7.8 Notwithstanding any clause to the contrary contained herein, the maximum monetary amount payable by GSS in respect of any and all Claims may by the End User in any annual licence period, including a claim made under the Australian Consumer Law, is limited to the total Fee paid by the End User during the annual licence period during which such Claims were made.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 GSS will defend End User against any loss, costs, expenses or liability, whether direct or indirect, arising out of a claim by a third party that Use of the Licensed Materials in accordance with the terms of this Licence infringes any Intellectual Property of that third party; except to the extent that the alleged infringement arises out of or is related to: (a) use of the Software in other than its specified operating environment or in combination with any equipment, devices or software not specified in the Documentation as suitable for such use; (b) use of the Software in a manner for which it was not intended; (c) modification of the Software by anyone other than GSS; or (d) use of other than the most current release of the Software if the alleged infringement would have been prevented by the use of such release.
8.2 End User agrees to:
(a) give notice to GSS in writing of any claimed infringement as soon as practicable upon becoming aware of the same;
(b) give GSS the sole conduct of the defence to any claim or action in respect of any such claim and all negotiations for its settlement and must not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise such claim or action except with the written consent of GSS (such consent not to be unreasonably withheld or delayed); and
(c) act in accordance with the reasonable instructions of GSS and to give to GSS such assistance as it reasonably requires (at the cost and expense of GSS) with respect of the conduct of such defence including, without prejudice to the generality of the foregoing, the filing of all pleadings and other court process and the provision of all relevant documents.
8.3 In the event of an infringement claim, GSS is entitled at its own expense and sole option (but without prejudice to any of End User’s rights) and within a reasonable time either to:
(a) procure the right for End User to continue using the Licensed Materials;
(b) make such alterations, modifications or adjustments to the Licensed Materials as will render them non-infringing without incurring a material diminution in performance or function;
(c) replace the Licensed Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; or
(d) terminate this Licence.
The foregoing remedies constitute End User’s sole and exclusive remedies and GSS’s entire liability to End User with respect to any infringement claim.
8.4 End User defends and indemnifies GSS against any loss, costs, expenses or liability, whether direct or indirect, arising out of a claim by a third party arising from: (a) compliance with End User’s instructions; (b) claims by customers of End User related to End User’s use of the Software; or (c) End User’s failure to comply with any material provision of this Licence.
9. TERM AND TERMINATION
9.1 This Licence commences on the Effective Date and continues until the Expiry Date specified in the Agreement Details or until terminated in accordance with the provisions of clause 9.2 below.
9.2 This Licence may be terminated:
(a) by GSS, effective immediately upon notice, if End User fails to pay any sum due to GSS within fourteen (14) days of the date such sum is due, regardless of whether End User has received a written notice that such sum is overdue;
(b) by GSS if End User breaches any of GSS’ Policies and Procedures, which breach is not rectified within a reasonable time requested by GSS, except in the case of a breach which in the sole opinion of GSS is not capable of being rectified, in which case the termination is effective as at the date shown on the notice.
(c) by either Party, effective immediately upon notice, if the other commits any material breach that is not capable of being remedied, or a material breach of any term of this Licence (other than one falling within clause 9.2(a) above) which is capable of being remedied and has not been remedied within thirty (30) days of a written request to remedy the same; or
(d) by either Party, effective immediately upon notice, in the event the other Party becomes subject to any voluntary or involuntary bankruptcy, insolvency, re-organisation or liquidation proceedings, makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts when due.
9.3 For the purposes of clause 9.2(b) “material breach” means a breach (including an anticipatory breach) which is serious in the widest sense of having a serious effect on the benefit which an innocent party would otherwise derive from this Licence in accordance with its terms.
9.4 Termination of this Licence is without prejudice to any rights or obligations which have accrued prior to such termination.
9.5 On termination of this Licence, all rights to Use the Service immediately terminate. Data entered into the Service System can be exported by GSS at the request of the End User in either an CSV file or PDF document prior to termination. However, any export after termination will be subject to a further fee. No export will be permitted after the expiration of 30 days from the termination of the Licence.
9.6 All provisions which expressly or by implication have effect after the termination or expiration of this Licence (including clauses 1.1,3, 5 and 7) remain in force in accordance with their terms, notwithstanding the termination or expiration of this Licence.
9.7 Within seven (7) Business Days of the termination of this Licence, End User must, at GSS’s sole option, either return all copies of the Licensed Materials in its possession or control or destroy all copies of the Licensed Materials in its possession or control and a duly authorised officer of End User must certify in writing to GSS that End User has complied with this obligation
10. ASSIGNMENT AND SUBLICENSING
10.1 End User is not entitled to assign, charge, hold on trust for any third party or otherwise transfer this Licence or any of its rights or obligations hereunder except as expressly provided herein, without the prior written consent of GSS, such consent not to be unreasonably withheld.
10.2 Notwithstanding clause 10.1, either Party is entitled to assign or otherwise transfer this Licence and any of its rights or obligations hereunder to any third party as part of any merger, reorganisation, restructuring, amalgamation or reconstruction of the firm or the group of companies of which it is an affiliate or as part of the sale of all or substantially all of its assets to a non-competitor of the other Party. Further, GSS may assign this Licence or any of its rights or obligations hereunder at any time to any affiliate of GSS.
11. SERVICE RELEASES
For the avoidance of doubt, GSS’s sole obligation pursuant to this Licence is with respect to the Service Release of GSS Software which GSS, in its sole discretion, regards as the then-current Service Release.
12. CLIENT MATERIALS
Ownership of all Client Material, including Property Rights in the Client Materials remains vested at all times in the End User. GSS will keep safe and secure any Client Materials it has been given for the purpose of this Service. GSS will copy and reproduce Client Materials only for the purpose of the provision of Service.
13. PRIVACY STATEMENT
We are committed to protecting your privacy. Authorised employees within the company on a need to know basis only use any information collected from individual customers. We constantly review our systems and data to ensure the best possible service to our customers. Parliament has created specific offences for unauthorised actions against computer systems and data. We will investigate any such actions with a view to prosecuting and/or taking civil proceedings to recover damages against those responsible
14. FORCE MAJEURE
(a) Neither party is liable for any breach of its obligations under this Agreement to the extent that the breach resulted from a Force Majeure Event provided that it:
(i) promptly notifies the other party (with appropriate details); and
(ii) takes all reasonable steps to work around or reduce the effects of the Force Majeure Event.
(b) If a Force Majeure Event continues for more than 14 days or continues beyond the Service Period, GSS may terminate this Agreement with immediate effect.
15. GOVERNING LAW AND JURISDICTION
This Licence is governed by and construed in accordance with the laws of New South Wales, Australia and End User irrevocably consents to the exclusive jurisdiction and venue of the courts of New South Wales, Australia.
16. EXCLUSION OF THIRD PARTY RIGHTS
This Licence is binding upon and inure to the benefit of the Parties hereto, and their successors and permitted assigns. Except as expressly set forth herein, nothing in this Licence is intended, nor is deemed, to confer any benefits on any third party, including any customers or Users of End User, nor will such person or entity have any right to seek, enforce or recover any right or remedy with respect hereto.
17.1 A waiver of any term, provision or condition of, or consent granted under this Licence is effective only if given in writing and signed by the waiving or consenting Party and then only in the instance and for the purpose for which it is given.
17.2 No failure or delay on the part of any Party in exercising any right, power or privilege under this Licence operates as a waiver thereof, nor does any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
17.3 No breach of any provision of this Licence can be waived or discharged except with the express written consent of the non-breaching Party.
17.4 The rights and remedies herein provided are cumulative with and not exclusive of any rights or remedies provided by law.
Any notice, demand or other communication given or made under or in connection with the matters contemplated by this Licence must be in writing and personally delivered or sent by fax or email or prepaid first class mail to the registered office or primary address of the relevant Party and is deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery;
(b) if sent by first class mail within Australia, two (2) Business Days after the date of posting;
(c) if sent by air mail from outside Australia, five (5) Business Days after the date of posting; and
(d) if sent by fax or email, when dispatched unless sender receives a transmission failure or for an email a rejection notice from recipients systems
provided that if, in accordance with the above provision, any such notice, demand or other communication would otherwise be deemed to be given or made after 5.00 p.m. such notice, demand or other communication is deemed to be given or made at 9.00 a.m. on the next business day.
19. INVALIDITY AND SEVERABILITY
19.1 If any provision of the Agreement, including this Licence is or becomes (whether or not pursuant to any judgment or otherwise) invalid, illegal or unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision,
is not affected or impaired in any way thereby.
19.2 If any provision of the Agreement, including this Licence, is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, such provision will be divisible from the Agreement or this Licence and deemed to be deleted from the Agreement or Licence and the validity of the remaining provisions are not affected. In the event that any such deletion materially affects the interpretation of the Agreement or Licence then the Parties will negotiate in good faith with a view to agreeing to a substitute provision which as closely as possible reflects the commercial intention of the Parties.
20. ENTIRE AGREEMENT
20.1 The Agreement and this Licence embody and set forth the entire agreement and understanding of the Parties and supersedes all prior oral representations (including negligent representations) or written agreements, understandings or arrangements with respect to the subject matter hereof. Neither Party is entitled to rely on any agreement, understanding or arrangement which is not expressly in the Agreement and this Licence.
20.2 The Agreement and these Licence terms may be amended only by a written document signed by both of the Parties.
21. DISPUTE RESOLUTION PROCEDURE
The Parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Licence promptly through negotiations between the respective senior executives of the Parties who have authority to settle the same. If the matter is not resolved through negotiation, the Parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (“ADR”) procedure. If the matter has not been resolved by an ADR procedure within sixty (60) days of the initiation of such procedure, the dispute may be referred to litigation. Nothing in this Clause 20 limits either Party’s ability to seek injunctive relief or other emergency relief.
22.1 Meaning of words
Words used in this clause but not defined in the Agreement or this Licence have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
22.2 Amounts exclusive of GST
Unless otherwise expressly stated in this Agreement, all amounts payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
22.3 Payment of GST
The recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
(a) the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
(b) if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply, such that after the other party meets the GST liability, it retains the net amount.
23. DEFINITIONS AND INTERPRETATION
In this Licence, the following words and expressions have the following meanings:
“Agreement” means the Online WHS Software Agreement, comprising Agreement Details, Agreement Terms, the Online WHS Software Licence End User Agreement, and all annexures, schedules thereto, and including without limitation all GSS Policies and Procedures, updates and GSS Service Releases, as may be varied and modified from time to time.
“Agreement Details” means that section of the Agreement which sets out the description of services to be provide, the licence fee payable, schedules, annexures or attachments.
“Agreement Terms” means that section of the Agreement which sets out the agreement of the parties and the acceptance by the End User of the Agreement, including all its terms and conditions.
“Claim” means means any present or future, actual or contingent, right remedy, entitlement, demand, proof of debt, action, suit or proceeding for damages, loss, debt, costs (including legal costs and expenses), restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy, whether by original claim, cross claim or otherwise, whether arising at common law, in equity, under statute, or otherwise arising out of or in connection with the facts or matters referred to or alleged in or concerning this Agreement.
“Client Material” means data, user-submitted content, documents, images and other material provided by the End User to GSS for use in the delivery of the Service.
“Confidential Information” means the terms of this Licence and all information, which is not publicly known, relating to the business, customers or financial or other affairs of GSS, Reseller or any GSS affiliate or licensor.
“Documentation” means the instruction manuals, user guides and other documentation and technical information with respect to the Service to be made available from time to time during the term of this Licence to End User in either printed or machine readable form.
“Fee” means the Licence Fee GSS charges the End User for the provision of the Service as set out in the Agreement Details.
“Force Majeure Event” means any event which is outside the reasonable control of the affected party and could not have been prevented by that party taking all reasonable steps.
“Intellectual Property” means patents, rights in design, utility models, trademarks, service marks, trading, business or domain names and email addresses, copyrights (including any rights in arrangements, web sites, or software in source, object or other form), rights in inventions, know-how, trade secrets and other confidential information, rights in databases and all other proprietary rights of a similar or corresponding nature which exist now or in the future in all parts of the world, whether registered or not, and any applications to register, or rights to apply for registration of, any of the foregoing.
“Licensed Materials” means the software and other proprietary and technical know how inherent in the software providing the Service, including the Documentation.
“Policies and Procedures” means each and all of the documents referred to in the Agreement Terms, as varied and modified from time to time, and any additional policies and procedures made during the term of the Agreement.
“Service” means the Online WHS Service as more particularly specified at – https://www.whssystems.com.au/safety-modules/.
“Service Release” means any generally distributed update to the Software underlying the Service which is identified by a Service Release (SR) number, including corrections (e.g., GSS Version 3.1 SR 1).
“Specifications” means the functionality of the Service as set out at: https://www.whssystems.com.au/safety-modules/.
“Software” means those GSS proprietary software programs used by GSS to provide the Service to the End User and includes any Service Release, version upgrades, corrections, point upgrades, adaptations, modifications, localisation and changes thereto.
“Use” means use of the Service solely in connection with the internal business purposes of End User and solely for the number of employees or contractors for which End User has purchased Licence(s).
“User” means any individual within End User’s organisation authorised by End User to Use the Service.