3D Safety Subscription Licence Agreement

1 Application and scope
1.1 These terms and conditions set out the terms on which 3D Safety Systems Pty Ltd (ACN 118 606 303) of 27 Sir Joseph Banks St, Botany NSW 2019 (“3D Safety”) provides the 3D Safety Web Application (which provides project and contractor management) (“SaaS”) to the Customer (and its Authorised Users) in respect of the Project (“agreement”).
1.2 The Customer is deemed to have accepted and agreed the terms of this agreement, and is bound by this agreement, if:
(a) any Personnel of the Customer completes the online registration for the SaaS and acknowledges the Customer’s acceptance of this agreement;
(b) the Customer returns to 3D Safety a completed payment authority to which this agreement is attached; or
(c) any Authorised User of the Customer accesses or uses the SaaS.
2 Term
2.1 This agreement commences on the date it accepted and agreed by the Customer in accordance with clause 1.2 (“Commencement Date”) and continues:
(a) for 12 months; or
(b) if, on the Commencement Date, the Customer already has another SaaS agreement with 3D Safety in relation to a project, location or premises other than the Project (“Other SaaS Agreement”), until the date on which the term of that Other SaaS Agreement is set to end (which, for the avoidance of doubt, will be a date earlier than the date in 2.1(a)),
(“Term”).
2.2 This agreement can be renewed by agreement between the parties, if the Customer either:
(a) notifies 3D Safety at least 30 days before the end of the Term;
(b) renews the subscription in relation to the Project; or
(c) re-registers for the SaaS in relation to the same Project by following the applicable online registration process.
3 General obligations
3.1 The Customer must:
(a) follow 3D Safety’s reasonable directions in connection with the use of the SaaS by the Customer or its Authorised Users;
(b) use the SaaS in accordance with all applicable laws, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles; and
(c) only use the SaaS, and ensure that its Authorised Users only use the SaaS, in accordance with this agreement.
4 Access and use of the SaaS
Licence
4.1 Subject to the Customer paying the applicable Fees in accordance with this agreement and complying with the terms of this agreement, 3D Safety grants the Customer a non-exclusive, non-transferable right and licence for the Term to:
(a) access and use the SaaS; and
(b) allow the Customer’s Authorised Users to access and use the SaaS,
for the Customer’s internal business purposes only.
Requirements
4.2 The Customer is solely responsible for:
(a) ensuring that its network and systems comply with any Systems Requirements; and
(b) procuring and maintaining compatible internet accesses and connections that comply with any applicable Systems Requirements and that are suitable so that the Customer and its Authorised Users are able to access and use the SaaS in accordance with this agreement.
5 User Credentials
5.1 Each Authorised User is entitled to have a single login and password (which may change from time to time) to access and use the SaaS (“User Credentials”).
5.2 The Customer must:
(a) not allow any set of User Credentials to be used by more than one individual Authorised User;
(b) ensure that all User Credentials are kept secure and confidential, and take all steps necessary to ensure that User Credentials are not disclosed, provided or made available to, or otherwise accessed by, any person who is not an Authorised User;
(c) if an Authorised User ceases to be an Authorised User (including where they cease to work for the Customer), ensure that the relevant User Credentials are blocked, disabled or changed as soon as practicable; and
(d) notify 3D Safety immediately after becoming aware that any User Credentials have been disclosed, provided or made available to, or otherwise accessed by, any person who is not an Authorised User.
6 Restrictions
The Customer must not, and must ensure that its Personnel do not:
(a) resupply, resell, sublicense or otherwise allow any other person to access or use the SaaS;
(b) decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the SaaS, including any source code, object code, algorithms, methods or techniques used or embodied therein;
(c) use the SaaS:
(i) to engage in any fraudulent or unlawful behaviour, or to defame, menace or harass any third party;
(ii) to gain unauthorised access to or interfere with any online resources or systems of any third party, including by any form of hacking;
(iii) to distribute unsolicited emails to third parties, including bulk unsolicited emails;
(iv) in any manner that is likely to result in 3D Safety’s systems, or that of any other person, being affected by any virus, worm, Trojan or similar computer program;
(v) in a way that infringes the Intellectual Property Rights or any other rights of any person;
(vi) in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of 3D Safety or its third party service providers or other customers;
(vii) use any data mine, scrape, crawl, email harvest or any other process that sends automated queries;
(viii) for the purposes of accessing, storing, distributing, providing (including to 3D Safety) or otherwise transmitting any information, data, Material or content that:
(A) infringes the Intellectual Property Rights of any third party;
(B) is unlawful, misleading, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(C) promotes unlawful violence;
(D) depicts sexually explicit images; or
(E) is discriminatory or promotes discrimination based on race, gender, colour, religious belief, sexual orientation or disability; or
(ix) in any other manner that is otherwise unacceptable to 3D Safety (acting reasonably).
7 Acknowledgements
(a) to the extent permitted by applicable law and subject to clause 12.4:
(i) 3D Safety makes no representation or warranty that the SaaS will be free from defects, errors or faults, or that it is fit for any particular purpose;
(ii) the SaaS may not be available from time to time, and 3D Safety makes no representation or warranty in relation to the availability of the SaaS; and
(b) 3D Safety may but is not obliged to provide the Customer with any update or upgrade to, or any new version of, the SaaS;
(c) use of any third party product, content or service by the Customer or its Authorised Users as part of or in connection with the SaaS may be subject to separate terms and conditions, whether imposed by 3D Safety or by the relevant third party (and the Customer must comply, and must ensure that its Personnel comply, with such third party terms and conditions);
(d) the Customer is responsible for any data, information or other Material or content that the Customer or its Authorised Users:
(i) provide to 3D Safety through the SaaS; or
(ii) upload or input into or through the SaaS; and
(e) the SaaS may not be fully compatible with the mobile device or operating system of the Customer or its Authorised Users.
8 Fees, payment and taxes
Fees
8.1 The Customer must pay the Fees to 3D Safety in accordance with this agreement.
Invoices
8.2 3D Safety will invoice the Customer for the Fees on or around the Commencement Date and, if applicable, on or around the date on which this agreement is renewed in accordance with clause 2.2.
Payment
8.3 The Customer must pay any invoice issued by 3D Safety within the timeframe specified on that invoice or, if no timeframe is specified, within 30 days of the date of that invoice.
Interests
8.4 The Customer must pay 3D Safety the applicable Interest on any amount that is overdue by the Customer.
Taxes
8.5 The Fees are exclusive of all applicable Taxes and the Customer agrees to pay any applicable Tax in addition to the Fees. 3D Safety may invoice the Customer for the amount of any applicable Taxes and the Customer must pay that amount to 3D Safety in accordance with the relevant invoice.
9 Intellectual Property
3D Safety IP
9.1 3D Safety (or its licensors, as applicable) owns all Intellectual Property Rights in the 3D Safety Materials (“3D Safety IP”). All modifications and enhancements to the 3D Safety Materials are also to be treated as 3D Safety Materials. If the Customer modifies or enhances any 3D Safety Material (or causes any 3D Safety Material to be modified or enhanced) in any way, the Customer assigns to 3D Safety all Intellectual Property Rights in those modifications or enhancements immediately from creation.
Customer IP
9.2 Subject to clause 9.1, the Customer retains all Intellectual Property Rights in its Customer Materials and any modification or enhancement to the Customer Materials (“Customer IP”).
9.3 The Customer grants 3D Safety for the Term a non-exclusive, sub-licensable licence to use, reproduce, modify, disclose and transmit to third parties the Customer Materials and the Customer IP for the purpose of operating, and allowing the Customer to access and use, the SaaS.
10 Confidentiality and Privacy
Confidentiality
10.1 Each party must:
(a) keep the other party’s Confidential Information secret and confidential;
(b) only access, use, disclose or reproduce the other party’s Confidential Information for the purpose of this agreement or otherwise as permitted under any other provision of this agreement; and
(c) take all steps reasonably necessary to safeguard the other party’s Confidential Information from unauthorised access, use or disclosure.
10.2 A party must not disclose the other party's Confidential Information to any person except:
(a) as permitted or authorised by any other provision of this agreement;
(b) to its Personnel on a "need to know" basis provided those persons are bound by confidentiality obligations similar to those set out in this agreement;
(c) with the other party's written consent; or
(d) if required by law.
Privacy
10.3 The Customer must:
(a) comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in relation to any Personal Information that forms part of the Customer Materials;
(b) obtain all required consents, and make all required disclosures and notifications, to ensure that:
(i) the Customer has the right to provide and disclose to 3D Safety all Personal Information that forms part of the Customer Materials; and
(ii) 3D Safety has the right to use and disclose all such Personal Information for the purpose of providing, and as required to provide, the SaaS to the Customer and its Authorised Users.
11 Changes to this agreement or the SaaS
Changes to this agreement
11.1 The Customer acknowledges and agrees that, subject to clause 11.2, 3D Safety may amend or vary this agreement (including any applicable Fees) at any time by written notice to the Customer, which may be by notice on 3D Safety’s website, by electronic mail, through the SaaS or by other electronic means.
11.2 If any proposed amendment or variation to this agreement under clause 11.1 is likely to have a detrimental impact on the Customer or on the Customer’s business (“Variation”), then:
(a) 3D Safety will notify the Customer directly in writing before implementing the Variation;
(b) if the Customer does not agree with the Variation, the Customer may terminate this agreement by written notice to 3D Safety within 30 days of the notice contemplated in clause 11.2(a). If, within 30 days of the notice contemplated in clause 11.2(a), the Customer does not notify 3D Safety that the Customer does not agree with the Variation and wishes to terminate this agreement, then the Customer will be deemed to have accepted the proposed Variation to this agreement; and
(c) the Customer may be presented with an updated version of this agreement the next time the Customer (or its Authorised users) uses the SaaS, in which case the Customer (or its Authorised Users) will be required to accept the updated version of this agreement to continue using the SaaS.
Changes to the SaaS
11.3 The Customer acknowledges and agrees that, subject to clause 11.4:
(a) 3D Safety may change or refine any feature or functionality of the SaaS, or substitute an alternative for any part of the SaaS, provided that the SaaS retains at least its basic functions, and that the overall performance of the SaaS is not detrimentally affected; and
(b) all inclusions and functionality of the SaaS are otherwise determined by 3D Safety from time to time.
11.4 If 3D Safety makes any change to the SaaS that is likely to:
(a) have a material detrimental impact on the Customer or on the Customer’s business;
(b) detract from a core function of the SaaS; or
(c) detrimentally affect the overall performance of the SaaS in a material way,
then:
(d) 3D Safety will notify the Customer of that change; and
(e) the Customer may terminate this agreement by written notice to 3D Safety within 30 days of the notice contemplated in clause 11.4(d). If, within 30 days of the notice contemplated in clause 11.4(d), the Customer fails to notify 3D Safety that the Customer does not agree with the change and wishes to terminate this agreement, then the Customer will be deemed to have accepted the proposed change to the SaaS.
12 Liability and indemnity
Liability
12.1 Subject to clauses 12.2, 12.3 and 12.4, 3D Safety’s liability to the Customer in any Contract Year for any loss or damage that the Customer suffers or incurs in connection with this agreement is limited to the Fees paid by the Customer in connection with that Contract Year.
12.2 Subject to clause 12.4, 3D Safety is not liable for any Consequential Loss howsoever caused that the Customer suffers or incurs in connection with this agreement.
12.3 The Customer is responsible and liable for, all access to or use of the SaaS through any of the Customer’s User Credentials. 3D Safety has no responsibility or liability to the Customer in that regard.
Australian Consumer Law
12.4 If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by 3D Safety in connection with this agreement and 3D Safety’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 12.1 and 12.2 do not apply to that liability and instead 3D Safety’s liability for such failure is limited to (at 3D Safety’s election):
(a) in the case of a supply of goods, replacing the goods or supplying equivalent goods or repairing the goods; or
(b) in the case of a supply of services, supplying the services again or paying the cost of having the services supplied again.
Indemnity
12.5 The Customer is liable for, and indemnifies 3D Safety from and against, all loss or damage (including reasonable legal costs) that 3D Safety incurs or suffers in connection with:
(a) any breach of clauses 6 or 10 by the Customer or its Personnel;
(b) any wilful misconduct, or fraudulent or illegal act or omission by the Customer or its Personnel; or
(c) any claim by a third party arising in connection with 3D Safety’s use (or any use by 3D Safety’s Personnel) of the Customer Materials in connection with the SaaS or this agreement.
13 Suspension or termination
Termination
13.1 If:
(a) the Customer fails to pay the Fees in accordance with clause 8; or
(b) 3D Safety believes (acting reasonably) that the Customer or its Personnel have committed a breach of clause 6; or
(c) 3D Safety receives a request or notice from a third party, and 3D Safety determines that such request has merit and is not vexatious, or from a regulatory body requiring 3D Safety to cease providing the SaaS to the Customer,
then 3D Safety may terminate or suspend (at 3D Safety’s option) this agreement or the Customer’s access to the SaaS by written notice to the Customer, in which case this agreement will terminate (or access to the SaaS will be suspended, as applicable) on the date specified in that written notice or, if no date is specified, immediately.
13.2 If:
(a) a party commits a material breach of this agreement that is not remedied within 14 days of receiving written notice of that breach from the other party; or
(b) an Insolvency Event occurs in relation to a party,
then the relevant other affected party may terminate this agreement by written notice to the other party, in which case this agreement will terminate on the date specified in that written notice or, if no date is specified, immediately.
After termination
13.3 On termination or expiry of this agreement:
(a) accrued rights or remedies of a party are not affected;
(b) any right or licence granted to the Customer under this agreement ceases immediately, and the Customer and its Authorised Users must stop using the SaaS. It is the Customer’s responsibility to extract and retrieve any Customer Material from the SaaS before this agreement is terminated or expires; and
(c) the Customer must deliver to 3D Safety any of 3D Safety’s Confidential Information, and any other property and materials.
Survival
13.4 Termination or expiry of this agreement will not affect clauses 9, 10, 12, this clause 13.4 and any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination or expiry.
14 General
14.1 A party will not be:
(a) in breach of this agreement as a result of; or
(b) liable to the other party for,
any failure or delay in the performance of its obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event.
14.2 The laws of New South Wales (Australia) govern this agreement, and each party irrevocably submits to the jurisdiction of the courts of that place and courts competent to hear appeals from those courts.
14.3 A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
14.4 The Customer acknowledges and agrees that 3D Safety may use subcontractors to provide the SaaS to the Customer under this agreement.
14.5 Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
15 Definitions and interpretation
Definitions
15.1 In this agreement, the terms set out below have the following meaning:
3D Safety has the meaning given to it in clause 1.1.
3D Safety IP has the meaning given to it in clause 9.1.
3D Safety Materials includes:
(a) the SaaS and any Material that 3D Safety provides or makes available to the Customer; and
(b) any Material the Customer accesses or uses in connection with the SaaS.
Authorised User means any Personnel of the Customer whom the Customer authorises to access and use the SaaS.
Confidential Information of a party means:
(a) information of a confidential nature relating to or developed in connection with the business or affairs of the party which is disclosed to, learnt by, or which otherwise comes to the knowledge of or into the possession of, the other party; or
(b) information designated by that party as confidential; or
(c) information regarding clients, customers, employees, contractors of or other persons doing business with that party,
but does not include information that:
(d) is or becomes generally available in the public domain, other than through any breach of confidence;
(e) is rightfully received by the other party from a third person other than as a result of a breach of confidence; or
(f) has been independently developed by the other party without using any other Confidential Information of the first party.
Consequential Loss includes any indirect, special or consequential loss (being a loss that does not arise naturally, that is, according to the ordinary course of things, whether or not the parties were aware of the possibility of such loss), or any loss of revenues, loss or corruption of data, loss of reputation, loss of profits, loss of bargain, loss of actual or anticipated savings, or lost opportunities (including opportunities to enter into arrangements with third parties).
Contract Year means the Initial Term or any Subsequent Term.
Customer means the business, organisation, entity or person that registers or requests access to the SaaS in accordance with clause 1.2, and to whom 3D Safety has agreed to provides the SaaS on the terms of this agreement.
Customer IP has the meaning given to it in clause 9.2.
Customer Materials includes all data, information and any Material (other than the 3D Safety Materials) the Customer provides to 3D Safety through or in connection with its use (or its Authorised Users’ use) of the SaaS.
Fees means:
(a) the fees notified to the Customer during the online registration or renewal process or otherwise agreed between 3D Safety and the Customer for the SaaS, which are invoiced and payable in accordance with clause 8.; and
(b) any other amount payable by the Customer to 3D Safety under this agreement.
Force Majeure Event means any occurrence, event or omission outside a party’s control and, and includes any of the following: a physical natural disaster including fire, flood, lightning or earthquake; war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law; epidemic or quarantine restriction; ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel; confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency; law taking effect after the date of this agreement; disruption or unavailability of the internet; strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors; and failure of any of 3D Safety’s third party service providers to provide services, including hosting services.
Initial Term has the meaning given to it in clause 2.1.
Insolvency Event in the context of a person means any of the following: a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth)), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person; the person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth); the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth) or is presumed to be insolvent under the Corporations Act 2001 (Cth); the person ceases to carry on business; or an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, patent, registered or unregistered trade mark, registered or unregistered design, rights in any trade secret, knowhow, trade or business or company name, or right of registration of such rights.
Interest means interest on any payment owing under this agreement calculated:
(a) at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law; and
(b) daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant interest.
Material includes software, firmware, tools, documentation, reports, data, diagrams, procedures, plans and other materials.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Personnel of a party include its employees, contractors, directors, officers and agents.
Project means the specific project or worksite in relation to which the Customer uses the SaaS, as identified by the Customer during the registration process or agreed between the parties in writing.
SaaS has the meaning given to it in clause 1.1.
Subsequent Term has the meaning given to it in clause 2.2.
Systems Requirements means all system, network and internet requirements for the SaaS, as notified by 3D Safety to the Customer from time to time.
Tax means any tax, levy, impost, deduction, charge, rate, duty or withholding which is levied or imposed by a government authority (local, State, Federal or otherwise) from time to time, including any stamp, value added, goods and services or transaction tax, duty or charge, excluding taxes on profit or capital gains.
Term means the term of this agreement, as contemplated in clause 2.
User Credentials has the meaning given to it in clause 5.1.
Variation has the meaning given to it in clause 11.2.
Interpretation
15.2 In this agreement:
(a) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
(b) this agreement is not to be interpreted against the interests of a party merely because that party proposed this agreement or some provision in it or because that party relies on a provision of this agreement to protect itself;
(c) a reference to this agreement includes the agreement recorded by this agreement;
(d) a reference to a party is a reference to 3D Safety or the Customer, and a reference to the parties is a reference to both 3D Safety and the Customer;
(e) Australian dollars, dollars, A$ or $ is a reference to the lawful currency of Australia.
(f) a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(g) the singular includes the plural and vice versa;
(h) a word which suggests one gender includes the other gender;
(i) clause headings are for convenient reference only and have no effect in limiting or extending the language to which they refer; and
(j) terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended.