1.1 Donesafe Pty Ltd ACN 165 144 767 provides the Donesafe web & mobile system (Donesafe).
1.2 Donesafe is an occupational health and safety compliance and management solution for use by employers and their staff, as more fully described in items C.1 of these Terms of Service.
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
B.2 In addition to any other express or implied consents, by using Donesafe the User accepts and agrees to the terms of:
C.1 The Employer agrees and accepts that:
C.2 Donesafe may enable a Employer to:
C.3 The Employer agrees and warrants that:
C.4 Any person who registers as an Employer in Donesafe warrants that he or she is an authorised representative of that Employer with the requisite authority to bind the Employer to this Agreement.
C.5 Where an Employer pays Fees to an Authorised Reseller, any claim or request for service pursuant to this Agreement must me made to the Reseller in the first instance.
D.1 An Individual’s access to Donesafe may be created, limited and cancelled by their Employer at the Employers discretion. Such access may include such features as described in item C.2 (a) to (k) as the Employer enables for the Individual.
D.2 The Individual agrees and accepts that:
E.1 Fees apply as advertised to the use of Donesafe, and the terms of those Fees are set out in the General Conditions.
E.2 Where a Fee is paid for a particular term of access to Donesafe, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Donesafe within that term.
F.1 The User agrees that when it provides any consent, authority or agreement through Donesafe it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
F.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through Donesafe as an electronic transaction shall be sent directly from its email address.
G.1 The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.
G.2 The Company does not guarantee the validity of any electronic transaction.
H.2 Limitations on Use.
J.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:
K.1 Deleting Donesafe does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that Donesafe has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
K.2 The User agrees and accepts that deletion of Donesafe may result in loss of data for which the Company is in no way liable.
L.1 The User acknowledges that Donesafe:
L.2 The User agrees that the Company shall not be responsible or liable in any way for:
M.1 Governing Law. New South Wales, Australia
M.2 Reference City. Sydney.
1.1 The following definitions apply in this document:
1.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
2 APPLICATION OF THIS AGREEMENT
2.1 This Agreement applies to use of and access to Donesafe.
2.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using Donesafe.
3 THE DONESAFE PRODUCT
3.1 Donesafe is the product described in the Important Terms
3.2 Donesafe is only accessible to the User for the term set out in the Important Terms.
3.3 The User agrees and accepts that Donesafe is:
3.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter Donesafe. The Organisation will be notified of any major changes that impact known integrations 30 days beforehand.
3.5 The Company shall not exercise its rights under clause 3.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Donesafe to the User, other than in accordance with the terms of this Agreement.
4.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use Donesafe for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
4.2 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
4.3 The Company may revoke or suspend the User’s license(s) if they breach the terms and conditions in this contract. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
5.1 The User agrees that it shall only use Donesafe for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
6 AUTHORISED USERS
6.1 The User shall authorise users to access Donesafe in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
6.2 The User is solely responsible for the security of its username and password for access to Donesafe.
6.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Donesafe account.
7 CUSTOMER DATA
7.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
7.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
7.3 Despite clause 7.1 the Company shall be authorised to permanently delete User Content 30 days after this contract is terminated.
7.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Donesafe).
8.3 The Company makes no warranty as to the suitability of Donesafe in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether Donesafe is appropriate for the Organisation’s circumstances.
9.1 The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
9.2 The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
9.3 The Company may revoke or suspend the User’s license to access Donesafe for unpaid Fees without liability, unless in dispute.
9.4 Where the Company:
9.5 All transactions are processed in Australian dollars and conversion rates may apply for foreign currencies.
9.6 GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
9.7 No refunds of Fees are offered other than as specified in this Agreement or as required by law.
10.1 The Company or an Authorised Reseller shall issue the User a Tax Invoice for all Fees for which GST applies.
10.2 The terms of payment set out in the Fees shall apply.
10.3 Should the User dispute a Tax Invoice, the User must notify the Company or Authorised Reseller that issued the invoice of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
10.4 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
11.1 Security. The Company takes the security of Donesafe and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
11.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
11.3 Storage. The Company may limit the amount of data that the User stores in Donesafe, and shall advise the User of such. Data that is stored with Donesafe shall be stored according to accepted industry standards.
11.4 Backup. The Company shall perform backups of Donesafe in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company will ensure it us able to recover all backups when requested by the Organisation.
12.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to Donesafe to the best of its abilities, however:
12.2 Users may prepare for unscheduled unavailability of Donesafe by:
13 INTELLECTUAL PROPERTY
13.1 Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
13.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Donesafe.
13.3 The Donesafe Application. The User agrees and accepts that Donesafe is the Intellectual Property of the Company and the User further warrants that by using Donesafe the User will not:
13.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Donesafe.
13.5 Code Base: If The Company ceases trading and can no longer meet its obligations under this contract then the Organisation will be provided access to a third party code repository containing an up to date version of the Donesafe application.
14.1 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information
14.2 Each party acknowledges and agrees that:
14.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
14.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
15 LIABILITY & INDEMNITY
15.1 The User agrees that it uses Donesafe at its own risk.
15.2 The User acknowledges that Donesafe does not provide occupational health and safety, or compliance advice.
15.3 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
15.4 The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
15.5 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Donesafe, including any breach by the User of these Terms.
15.6 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Donesafe or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
15.7 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
16.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
16.2 Where a party issues a compliant Breach Notice in accordance with clause 16.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
16.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
17.1 Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
17.2 Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
17.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
17.4 The rights and obligations under the relevant provisions of clauses 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 20 and 20.6 survive termination of this Agreement.
18.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
18.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
19 FORCE MAJEURE
19.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
19.2 Following a notice of Force Majeure in accordance with clause 19.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
19.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
19.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
19.5 The term of this Agreement will not be extended by the period of Force Majeure.
20 ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
20.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
20.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
20.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
20.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
20.5 Notices must be sent to the parties’ most recent known contact details.
20.6 The User may not assign or otherwise create an interest in this Agreement.
20.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
21.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
21.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
21.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
21.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
21.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
21.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
21.7 Governing Law. This Agreement is governed by the laws of the state set out in item M of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
21.8 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END GENERAL CONDITIONS