End User Licence Agreement
Version Date: 28 March 2022
Glow Technologies Pty Ltd ABN 44 645 413 207 ("Licensor", "we", "us") makes the Plant App (defined below) and the Services (defined below) available to the person downloading this App (you) subject to the following terms and conditions:
· this End User Licence Agreement (EULA); and
· the "Glow Technologies Licence Agreement" between the Customer (defined below) and Licensor (Head Agreement). Unless otherwise notified to you, the Head Agreement is in the form set out in the Annexure to the EULA.
The "Plant App" is Licensor's plant and equipment risk management application, which assists users in assessing the plant and equipment against certain criteria and applicable standards, and allows the user to generate reports for the plant and equipment that have been assessed.
The Head Agreement contains the broad terms applicable to the use of the "Plant App".
This EULA contain the specific terms applicable to the use by end users of the App, being the android or iOS versions of the Plant App.
Unless we agree otherwise in writing with you, the individual downloading this App is also the "Customer" and a "User" under the Head Agreement and agrees that they are bound directly by, and must comply with, the obligations of the Customer and User under the Head Agreement as well as the terms of the EULA and are liable for any fees associated with the use of the App and creation of any reports, as set out in the Head Agreement.
Where Licensor has agreed in writing that you are not the "Customer" under the Head Agreement and are accessing the Plant App as a "User" for and on behalf of another organisation or person (who is the "Customer") that has invited you to use the App (for example, your employer or a contractor), you agree that you are using the App for and on behalf of that Customer, you have read and understood the Head Agreement and will use the Plant App in accordance with the Head Agreement obligations applicable to a "User" and in a manner that ensures that the Customer complies with the Head Agreement.
In the event of any inconsistency between the Head Agreement and the EULA, the Head Agreement shall prevail to the extent of any inconsistency.
EULA TERMS AND CONDITIONS
|1.||Acceptance of EULA and amendments to EULA|
|1.1||The terms of this document ("EULA") govern the relationship between the licensee (you) and Glow Technologies Pty Ltd ABN 44 645 413 207 ("Licensor", "we", "us") in respect of your use of the App and the Services.
|1.2||By installing, using or accessing the App or Services, you agree to be bound by the terms of this EULA and the Head Agreement (in accordance with but subject to the terms of clause 5.2 ). If you do not agree with or otherwise do not wish to accept the EULA or Head Agreement, do not install, use or access the App and/or the Services.
|1.3||Licensor reserves the right to amend the EULA from time to time. We will notify you when you access the App for the first time following the change. The amendments will be effective 14 days after notification (effective date), unless Licensor is required to make the amendments effective earlier to comply with any Law (in which case the effective date will be the date of notification). If you do not agree to any amendments to the EULA, you may terminate this EULA in accordance with clause 11(c) . By accessing and using the App or Services after the effective date, you agree to be bound by the amended EULA on and from the effective date.|
In the EULA:
means the plant and equipment risk management application licensed by Licensor under this EULA.
means Apple Inc. of 1 Infinite Loop, Cupertino, California, USA.
Apple App Store
means the store operated by Apple through which it makes applications available for devices running the iOS operating system.
means a day on which banks are open for business in Sydney, Australia excluding a Saturday, Sunday or public holiday in that city.
means an organisation or person that has entered into a "Glow Technologies Licence Agreement" with us to use the Plant App (as further defined in the Head Agreement).
means a single device owned or controlled by you.
means Licensor's user instructions, manuals, policies, specifications and other documentation for the App, as updated from time to time.
means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange.
has the meaning given in clause 5.2(c) .
(a) any suggested amendments or improvements to the App that you submit to us; or
(b) any modifications, alterations or enhancements that you make to the App in any way; or
(c) any new plant or equipment templates, or modifications to existing Licensor-provided templates, that you upload to the App or otherwise submit to us.
means any and all present and future intellectual and industrial property rights anywhere in the world including copyright, know-how, designs, patents and trade marks, and any application or right to apply for registration of those rights.
means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time and includes the common law and equity as applicable from time to time, and any mandatory Australian and international standards.
has the same meaning as in the Copyright Act 1968 (Cth) and includes rights of attribution of authorship, rights of integrity of authorship, rights not to have authorship falsely attributed, and rights of a similar nature that exist, or may come to exist, anywhere in the world.
means a third party provider that provides you with access to the App. Examples of potential Providers include Apple and Google Inc.
means services offered by Licensor via the App from time to time, including those specified in clause 5.1(a) .
means an update supplied by Licensor that replaces or supplements the original App.
means content generated, created, made or otherwise brought about as a result of you using the App and/or the Services or uploaded by you to the App, but excluding any Improvements or Intellectual Property Rights in the App (including the report templates).
Subject to the terms of this EULA, Licensor grants you a non-exclusive, non-transferable licence to:
|(a)||use the App on a single Device as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (which can be viewed at http://www.apple.com/legal/itunes/au/terms.html), or such greater number of Devices as is provided for in Apple's Usage Rules or permitted under Apple Family Sharing or volume purchasing, if the App was acquired from the Apple App Store; or|
|(b)||use the App on a single Device, in all other cases.|
Subject to clause 11 , the licence granted to you in clauses 3.1 is granted for the duration you have the App installed on the relevant Device.
|(a)||use the App on a single Device as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (which can be viewed at http://www.apple.com/legal/itunes/au/terms.html), or such greater number of Devices as is provided for in Apple's Usage Rules or permitted under Apple Family Sharing or volume purchasing, if the App was acquired from the Apple App Store; or|
|(b)||use the App on a single Device, in all other cases.|
|Licensor and its licensors retain all right, title and interest to all Intellectual Property rights subsisting in the App, any Updates, and any part thereof.|
The EULA governs any Updates, unless such an Update is accompanied by a separate license supplied by Licensor, in which case the terms of that license will govern to the extent provided for.
You acknowledge and agree that Licensor:
|is under no obligation to provide any Updates;|
|(b)||can offer optional paid Updates;|
|(c)||can use Updates to add, remove, modify or otherwise alter features of the App at its sole discretion;|
|(d)||can require you to install Updates to the App in order to continue using the Services; and|
|(e)||can provide Updates in such a manner that the App is unable to be reverted to its previous state.|
|(a)||In order to use the App and/or the Services, or parts thereof, you will be required to create a user account.|
|(b)||Licensor may require personal information (including but not limited to your name, postal address, email address, mobile phone number and location data) to facilitate your use and access to the App and Services and your account|
|(c)||Licensor may obtain certain details about you which are held by the Provider in order to provide the information we require to create your user account.|
You must ensure that:
|(a)||you do not register multiple user accounts, as an individual is only permitted to have a single user account; and|
|(b)||you do not allow multiple people to use the same user account.|
|(a)||You are responsible for protecting the confidentiality of your password|
|(b)||You acknowledge and agree that you will be responsible for any activities engaged in using your account, whether or not access is authorised by you.|
|(c)||We may require that you change your password if we suspect the security of your account has been breached.|
|You must promptly update your account details if any of your contact details (including email address or mobile phone number) change. You will be liable for any unauthorised access or use of your account which results from your failure or delay to notify us of changes to your contact details.|
|You acknowledge and agree that:|
|(a)||the App and/or the Services may feature advertisements from us and/or third parties;|
|(b)||we may, at its sole discretion, introduce advertising into any App or Services that do not presently contain advertising;|
|(c)||we are not responsible for the content of any third party advertisements, nor the content of any website or other materials that may be linked to by third party advertisements, and you view such third party websites and materials at your sole risk; and|
|You warrant and represent that the following statements are true and correct:|
|(a)||you are not located in a country that is subject to an embargo by the governments of the United States of America or the Commonwealth of Australia or of a country that has been designated by the United States of America or the Commonwealth of Australia as a "terrorist supporting" country; and|
|(b)||you are not included on any list of prohibited or restricted parties by the governments of the United States of America or the Commonwealth of Australia.|
|8.2||Third party services and software|
|(a)|| you are not located in a country that is subject to an embargo by the governments of the United States of America or the Commonwealth of Australia or of a country that has been designated by the United States of America or the Commonwealth of Australia as a "terrorist supporting" country; and|
|(b)||you are not included on any list of prohibited or restricted parties by the governments of the United States of America or the Commonwealth of Australia.|
|(i)||we are not responsible for such third party services, software or updates;|
|(ii)||third party services and software (including any updates) may be subject to fees and separate terms and conditions, which we strongly recommend you review prior to implementing the third party services or software (or any update);|
|(iii)||you must comply with any applicable third party terms and conditions when using the App and/or Services;|
|(iv)||you are responsible for ensuring that your installation and use of the App and/or Services does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties; and|
|(v)||if you are unable or unwilling to obtain, access or install such third party services or software (including any updates), or do not agree to comply with the terms and conditions imposed by such third parties, you may be unable to obtain, install, update, access, use, or continue to access or use the App and/or Services.|
|(c)||The App and Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them.|
|By accessing and using our App and/or Services, you agree that you will:|
|(a)||provide current, true and accurate information (such as your location) and update us of any information that may be relevant to your use of our App and/or Services;|
|(b)||read, understand the Documentation and comply with the Documentation and this EULA when using the App; and|
|(c)||comply with all applicable laws regarding access to and use of the App and Services.|
You agree that you will not:
|(a)||attempt to disrupt the normal operation of the App or Services, or any infrastructure operated by us, or any of our other business activities;|
|(b)||attempt to gain unauthorised access to the App and/or the Services;|
|(c)||make any automated use of the App and/or the Services;|
|(d)||impersonate any other person in using of the App and/or Services;|
|(e)||upload or create any information or content which infringes third party rights (including Intellectual Property rights) or breaches any law; or|
|(f)||use the App and/or the Services in connection with the actual or attempted contravention of any applicable laws.|
|9.||Apple App Store|
|If you obtained the App from the Apple App Store, you and Licensor acknowledge and agree that (to the full extent permitted by applicable law):|
|(a)||this EULA is concluded between you and Licensor only, and not with Apple, and Licensor, not Apple, is solely responsible for the App and the content thereof;|
|(b)||the license granted to you for the App is a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such App may be accessed and used by other accounts associated with the purchaser via family sharing or volume purchasing;|
Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App, either under this EULA or applicable law;
|(d)||in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price to you. You acknowledge that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will the responsibility of Licensor in accordance with this EULA;|
|(e)||Licensor, not Apple, is responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including but not limited to:|
|(i)||product liability claims;|
|(ii)||any claim that the App fails to conform to any applicable legal or regulatory requirement; or|
|(iii)||claims arising under consumer protection, privacy or similar legislation including in connection with the App's use (if applicable) of Apple's HealthKit and HomeKit frameworks;|
|(f)||in the event of any third party claim that the App or possession and/or use of the App by you infringes that third party's Intellectual Property rights, Licensor, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such claim; and|
|(g)||Apple, and Apple's subsidiaries, are third party beneficiaries of the EULA and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary thereof.|
|Unless otherwise specified in this EULA or agreed pursuant to a separate written agreement between you and Licensor, Licensor will not be obliged to support the App or the Service, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the App or the Service by you.|
|11.||Termination and Suspension|
|(a)||This EULA can be immediately terminated by us in the following circumstances:|
|(i)||you are in material breach of any term of this EULA or the Head Agreement;|
|(ii)||you are in breach of any term of this EULA or the Head Agreement and you fail to rectify the breach within 7 days of written notice; or|
|(iii)||you become bankrupt, are wound up or become subject to administration or receivership or any similar thing under any law.|
|(b)||We may terminate the EULA if we decide to withdraw the App from the market (in which case we will endeavor to give you at least 14 days' notice before doing so).|
|(c)||You may terminate this EULA at any time by deleting the App from your Device.|
|(d)||Upon termination of this EULA, your license to the App immediately ends, and you must delete the App from your Device and any remaining copies of the App and any associated documentation or otherwise return or dispose of such material in the manner directed by us.|
|(e)||Termination pursuant to this clause will not affect any rights or remedies which a party may have otherwise under this EULA, the Head Agreement or at law.|
|(f)||We may suspend your access to the App or Services without notice to you where we reasonably believe your access should be suspended, including where:|
|(i)||necessary to comply with any law;|
|(ii)||we believe that there is a risk of fraud or security breach; or|
|(iii)||you have not accessed the App for a period of 6 months or more.|
|(g)||If we have the right to terminate the EULA pursuant to clause 11(a) , we may, instead of terminating the EULA, immediately suspend your access to the App and/or the Services.|
|(h)||Nothing in this EULA limits any right we may have pursuant to this EULA to modify the App by way of Update, including by removing or amending any features or functionality from the App, or to modify, suspend or cease offering the Services or any part thereof.|
|12.||Warranties and liability|
|12.1||Australian Consumer Law|
|(a)||In this EULA:|
|(i)||"Australian Consumer Law" means schedule 2 of the Competition and Consumer Act 2010 and any equivalent state or territory legislation;|
|(ii)||"Consumer" has the meaning given in the Australian Consumer Law; and|
|(iii)||"Consumer Guarantee" means a right or guarantee under Part 3-2 (Division 1) of the Australian Consumer Law that cannot lawfully be excluded.|
|(b)||The Australian Consumer Law provides Consumers with a number of Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in this EULA are therefore subject to, and will not apply to the extent that they limit or exclude any Consumer Guarantees that may apply to you if you are a Consumer. However where the Australian Consumer Law permits us to limit the remedies for a breach of such Consumer Guarantees we do so in accordance with clause 12.2 .|
|12.2||Exclusion of implied warranties|
|(a)||All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this EULA are excluded other than:|
|(i)||those set out in this EULA; and|
|(ii)||any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by agreement under applicable laws including the Consumer Guarantees under the Australian Consumer Law (Non-excludable Terms).|
|(b)||Our liability to you in connection with the EULA and the supply of any goods or the Services (including in respect of any breach of or failure to comply with any Non-excludable Terms, where it is permissible under applicable law to limit liability for such Non-excludable Term) is limited to (at Licensor's option):|
|(i)||in the case of goods, including the App (to the extent the App is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you; or|
|(ii)||in the case of services, including the Services – supplying the services again or paying the cost of having the services supplied again.|
|12.3||Disclaimer and exclusion and limitations on liability|
|To the maximum extent permitted by law and without limiting your rights and our obligations under the Australian Consumer Law (which are subject to clauses 12.1 and 12.2 ), you acknowledge and agree that:|
|(a)||given the nature of the App, the App and Services cannot be guaranteed to be error free, uninterrupted and available at all times;|
|(b)||the App and Services (including any information supplied therein) are provided on an “as is” and “as available” basis;|
|(c)||we will not be liable to you in connection with this EULA for:|
|(i)||any indirect or consequential loss or damage; or|
|(ii)||loss of profits, loss of revenue, loss of opportunity, loss of data or loss of reputation, that you suffer or incur, whether arising under contract, tort (including due to our or any other person's negligence), under statute or otherwise;|
|(d)||we do not accept liability for any claims, damages or loss (however arising, including due to our or any other person's negligence) you may incur arising directly or indirectly from:|
|(i)||a failure to provide the App or Service, or any part thereof;|
|(ii)||any incompleteness, inaccuracy or unavailability of information provided (or unable to be provided) through the App;|
|(iii)||corruptions to or loss of data, errors or interruptions occurring in the course of using, or as part of, any Service or the App;|
|(iv)||any interference or damage to Devices or your computer systems which arises in connection with use of the App and/or the Services;|
|(v)||any suspension or discontinuance of any Service, or any part thereof; or|
|(vi)||any use of the Services by other users, including any use of the Services by other users in manner which contravenes this EULA; and|
|(e)||our total aggregate liability to you for any loss, damage, liability or expense you suffer or incur in connection with this EULA and which is not excluded under sub-clauses (a) to (d) inclusive, whether arising under contract, tort (including negligence), under statute or otherwise, is limited to the sum of $100.|
|12.4||Indemnity for third party claims|
|You will indemnify Licensor against all liabilities, costs, losses and expenses which Licensor may suffer or incur in connection with any third party claims or allegations against Licensor that are caused by your breach of this EULA.|
|This EULA does not constitute a transfer or conveyance of any Intellectual Property owned by us as at the date of this EULA, including but not limited to all Intellectual Property associated with the App and the Services, and its functionality, features and content, or operate as a future transfer of any Intellectual Property owned by us any time thereafter|
|You acknowledge that the App and any materials provided in the course of the Services are protected by copyright and may also be protected as other forms of Intellectual Property owned by us or our licensors. You will not during or at any time after the termination of this EULA undertake or permit any act which infringes or attempts to infringe those Intellectual Property rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the App except as otherwise expressly authorised by this EULA.|
You agree that:
any Intellectual Property Rights in and to any Improvements are:
|(i)||owned by and hereby assigned by you to us immediately upon creation free of encumbrances; and|
|(ii)||deemed to form part of the App that is licensed to you under this EULA.|
|(b)||to the extent any of your pre-existing Intellectual Property Rights are incorporated in any Improvements or are required in order to exploit or use such Improvements, you hereby grant us a non-exclusive, perpetual, transferable, royalty free license (with the right to sub-licence) such Intellectual Property Rights to the extent required for us to use and exploit the Improvements for any purpose; and|
|(c)||we, our successors, assigns and any of their licensees may exercise all rights subsisting in the Improvements which are copyright works including but not limited to the right to use, exploit, copy, deal with, communicate, reproduce, transmit, publish, exhibit, publicly perform, alter, adapt and modify such copyright works in any media throughout the world:|
|(i)||with or without attribution of authorship to you;|
|(ii)||bearing our, or any of our successors, assignees, successors or licensees' name; and|
|(iii)||in any manner which would, but for this consent, otherwise infringe any Moral Rights you have in such copyright works.|
|To the extent that any Intellectual Property rights are contained in Your Content, you will retain ownership of such rights, and you hereby grant to Licensor a worldwide, perpetual, irrevocable, royalty-free, transferable and sub-licensable license to use, exploit and modify Your Content in any way and for any purpose, without compensation to you. You warrant that you have the right to grant this license and to upload Your Content and that our use of Your Content in accordance with this EULA will not breach any third party Intellectual Property rights and privacy rights. You further consent to us and our successors, assigns and licensees doing anything in respect of Your Content which would, but for this consent, infringe your moral rights.|
|(a)||Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information and keep your personal information confidential, we do not warrant and cannot ensure the security of any information transmitted to us by you. Accordingly, any information transmitted to us via the App is transmitted at the risk of the sender. Nevertheless, once we receive transmissions from you, we will take reasonable steps to preserve the security and confidentiality of your personal information.|
|(b)||You must take your own precautions to ensure that the process which you employ for accessing the App and/or the Services does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices or computing systems.|
|(c)||You must take all reasonable steps to protect the security of your Device, your data and computing systems, including by ensuring you don't have any viruses or other mechanisms capable of recording your passwords or access codes to the App.|
|(d)||If you suspect that there has been unauthorised access to your account or there is any other security breach or issue relating to the App, Services or your account, you must notify us immediately (see clause 17 for contact details) and change your account password.|
|15.||Privacy, data and geographical information|
|(b)||We may collect your personal information via the App, the Providers and Customer for the purposes of:|
|(i)||providing and allowing you to access and have the benefit of the Services and the App;|
|(ii)||ensuring your use of the App complies with this EULA and Head Agreement; and|
|(iii)||communicating with you, including via in App push notifications and electronic messaging such as SMS and email, by mail, by phone or in any other lawful manner,|
|(c)||The minimum information we need to provide basic App functionality is your name, email address and a password. We may also collect the following information:|
|(i)||your post code and phone number;|
|(ii)||details of the Services being sought;|
|(iii)||if you have GPS enabled Device and have this feature turned on, or if you allow us to access your location, we may collect your location information from third party services where you have enabled it and if you request a service that requires your location;|
|(iv)||information about the devices and networks that you use to access the App to help us develop and secure our App and Services (such as information collected via cookies); and|
|(v)||details of your use of the App and Services|
|(d)||We may disclose your personal information:|
|(i)||on a confidential basis to our employees, suppliers, contractors, service providers, professional advisers and related entities, in order to run our business, and to provide you with the App functionality and Services you request;|
|(ii)||to the Customer, including details of your usage of the App, your compliance with the EULA and so that any use of the Services which is subject to fees can be correctly calculated in accordance with the terms of the Head Agreement; and|
|(iii)||to any third parties to whom you have directed or permitted us to disclose your personal information, or where we are permitted or required to do so by law.|
|(e)||We may make disclosures of your personal information to recipients based overseas. The countries in which such third party recipients are located depend on the circumstances.|
|(f)||Unless you have previously instructed us otherwise, you consent to your personal information being used to contact you with special offers, news and information about our products, services and promotional offers, including contacting you via electronic messaging. You can opt out of receiving direct marketing communications by contacting us (see clause 17 for contact details).|
|(g)||If you don't provide the information we request, you may not be able to set up an account, use the App (or certain functionality and features) or be able to utilise the Services.|
|(i)||how you can seek access to the personal information we hold about you and seek the correction of such information; and|
|(ii)||how you can complain about a privacy breach and how we will deal with such complaints.|
Consent to the collection and use of your information
|16.1||Assignment and sub-contracting|
|(a)||You cannot assign, novate or otherwise transfer any of your rights or obligations under this EULA without our prior written consent (which can be granted or withheld in our absolute discretion). An assignment in breach of this clause is intended by the parties to be void and of no force and effect|
|(b||We can assign, novate or otherwise transfer any of its rights or obligations under this EULA at our sole discretion, on written notice to you. We may subcontract the performance of its obligations under this EULA to any person and without notice to you, but will remain liable to you for the performance of its obligations notwithstanding any such sub-contracting.|
|A party's rights or remedies under this EULA are not waived by it unless such waiver is in writing and signed by the party granting the waiver. No delay or omission of a party in exercising any rights or remedies shall operate as a waiver of such rights or remedies|
|If a provision in this EULA is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this EULA for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this EULA.|
|16.4||Governing law and jurisdiction|
|The EULA is governed by and is to be construed under the laws in force in Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with the EULA.|
|You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to the EULA and the transactions contemplated by it.|
|You acknowledge and agree that you have not relied on any statement by us which has not been expressly included in this EULA.|
|The EULA constitutes the entire agreement between you and Licensor regarding access and use of the App and Services and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.|
|16.8||Exercise of rights|
|(a)||Unless expressly required by the terms of this EULA, we are not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this EULA.|
|(b)||We may (without any requirement to act reasonably) impose conditions on the grant by us of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this EULA. You must comply with any such conditions when relying on the consent, approval or waiver.|
|16.9||Clauses that survive termination|
|Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination of this EULA, clauses 3.3, 3.4, 5.2, 5.3, 6.3(b), 8.3, 12, 13, 14, 15, 16.4 and this clause 16.9 survive the termination of the EULA.|
|Any notice required to be given to you under this EULA may be given by Licensor to you my an legal means, including notification via the App. Any notices required to be given by you to Licensor under this EULA must be sent by mail or email to the contact details set out in clause 17.|
In the EULA unless a contrary intention is expressed:
|(a)||a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);|
|(b)||other parts of speech and grammatical forms of a word or phrase defined in the EULA have a corresponding meaning;|
|(c)||a reference to a party to any document includes that party's successors and permitted assigns;|
|(d)||a provision of the EULA may not be construed adversely to a party solely on the ground that the party (or that party's representative) was responsible for the preparation of the EULA or the preparation or proposal of that provision;|
|(e)||the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in the EULA do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary;|
|(f)||if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;|
|(g)||if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and|
|(h)||if anything under the EULA is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.|
|In the event that you need to contact Licensor regarding the EULA, the App and/or the Services, please use the following details.|
|Glow Technologies Pty Ltd ABN 44 645 413 207|
|Postal address: First floor, 121 High Street, Kew, Vic 3101|
|Telephone: 1300 018 306|
|Email: [email protected]|
BETWEEN Glow Technologies Pty Ltd ABN 44 645 413 207 of First floor, 121 High Street,
Kew, Vic 3101 ("Licensor")
AND The customer identified in item 1 of Schedule 1 ("Customer")
A. Licensor is the operator of the technology platform described in item 2 of Schedule 1 (the "Plant App").
B. Customer has requested that Licensor, and Licensor has agreed, to provide Customer with a licence to access and use the Plant App, subject to the terms and conditions of this agreement.
Terms and conditions
|1.1||Capitalised terms used in this agreement have the meaning given to them in clause 22. Rules of interpretation for this agreement are contained in clause 21.13.|
|2.1||The agreement commences on the Commencement Date and continues until terminated in accordance with this agreement ("Term").|
|3.1||During the Term of this agreement, Licensor will:|
|(a)||provide the Customer with access to and a limited licence to use the Plant App in accordance with clause 5; and|
|(b)||provide the Customer with the Services,|
|subject to the terms of this agreement and in accordance with the Plant App Documentation.|
|3.2||The Customer acknowledges and agrees that:|
|(a)||the Plant App Documentation and necessary item 7 of Schedule 1 may specify minimum technical requirements and third party service components that are required in order for the Customer to access and use the Plant App. Licensor takes no responsibility for any third party products or services that the Customer uses in connection with the Plant App; and|
|(b)||the Plant App will evolve over time and Licensor reserves the right to change how the Plant App operates and its functionality, and update the Plant App Documentation from time to time. Any material changes will be notified to the Customer (and such notice may be given via email or within the Plant App) at least 14 days prior to the change coming into effect, unless such change is required to comply with applicable law or to secure the Plant App in which case it may be implemented immediately.|
|4.||Support Services, Training Services and additional services|
|4.1||The Licensor will:|
|(a)||during the Term, use reasonable endeavours to provide the Support Services so that the Plant App operates in material conformance with the Plant App Documentation; and|
|(b)||if and to the extent specified in Schedule 1, provide the Training Services to the Customer.|
|4.2||Customer will provide Licensor with access to such premises, personnel and resources as may reasonably be requested by Licensor to enable it to perform the Training Services.|
|4.3||At any time during the Term, Customer may request in writing that Licensor provide a quote for the supply of further services.|
|4.4||Licensor will consider any request for quote under clause 4.3 in good faith, and will respond to the Customer within a reasonable time of receiving the request. Licensor may accept or reject any request for quote in Licensor's sole discretion. For the avoidance of doubt, Licensor is under no obligation to provide a quote, or to offer a quote on any particular terms or prices.|
|4.5||Licensor is not obliged to provide (and Customer is not obliged to purchase) any additional services unless and until Licensor and Customer have agreed in writing to the scope, fees and any other relevant terms for the supply of such additional services.|
|5.||License to access and use the Plant App|
|5.1||Except as otherwise set out in this Agreement, all IP Rights in the Plant App and Plant App Documentation remain vested in Licensor or its licensors.|
|5.2||In consideration of the payment of the Fees, Licensor grants to the Customer a non-exclusive, non-transferable, revocable, limited licence to the Customer:|
|(a)||to access and use the Plant App for the Permitted Purpose during the Term (and to permit its Users to do so on its behalf); and|
|(b)||to use the Plant App Documentation for the Permitted Purpose during the Term,|
|which is subject to the terms and conditions (including any limitations or restrictions) set out in this agreement.|
|5.3||The Customer agrees to access and use the Plant App only in accordance with the terms and conditions of this agreement and the Plant App Documentation.|
|5.4||The Customer acknowledges and agrees that:|
|(a)||except as set out in this agreement, the Customer does not have any rights in the Plant App;|
|(b)||except as expressly set out in this agreement, Licensor will not be obliged to support the Plant App, whether by providing advice, training, repairs, error-correction, modifications, updates, new releases or enhancements or otherwise;|
|(c)||except as set out in clause 5, nothing in this agreement requires Licensor to supply the Customer with any equipment, or training and support in respect of the Plant App or Licensor's hardware or equipment that may be separately supplied;|
|(d)||the features and functionality of the Plant App may be modified by Licensor from time to time, and the Customer must use the most recent version of the Plant App that is deployed by Licensor at all times;|
|(e)||the Customer must not copy or use previously generated reports produced via the Plant App to conduct further evaluations of plant or equipment (e.g. by editing or changing an existing report);|
|(f)||the Customer must not disclose any report generated via the Plant App to any person except:|
|(i)||to Customer End Users if and to the extent permitted by clause 5.4(h);|
|(ii)||to those persons that need the report in order to operate or repair the plant or equipment the subject of the report;|
|(iii)||to occupiers of the facilities where the relevant plant or equipment is to be used where the report is required for occupational health and safety purposes;|
|(iv)||where the plant or equipment is leased, to the owner of that plant or equipment;|
|(v)||where the plant or equipment is sold or leased to a new lessee, to the new owner or lessee of the plant or equipment;|
|(vi)||to the Customer's legal advisors and insurers;|
|(vii)||if disclosure is required by law or a government authority; or|
|(viii)||otherwise with Licensor's prior written consent,|
|(collectively, "end user recipients") and provided any such end user recipients do not further disclose the report (unless permitted to do so under clause 5.4(g)) to any other person and the Customer must ensure end user recipients are aware of and agree to the Licensor's disclaimer set out in the report;|
|(g)||the Customer must not remove, obscure or modify any copyright, trade mark or other notices (including disclaimers) included in the Plant App or any reports generated via the Plant App, or any copies thereof, or permit any other person to do so; and|
|(h)||if Customer's Permitted Purpose expressly permits it to conduct assessments of plant and equipment for third party clients of the Customer (Customer End Users), the Customer:|
|(i)||may provide a copy of a report generated via the Plant App to the relevant Customer End User;|
|(ii)||must ensure that the Customer End User only uses such report for its own internal quality assurance and verification purposes and for no other purpose;|
|(iii)||must ensure that the Customer End User does not disclose any such report to any other person except in the circumstances contemplated in sub-clauses 5.4(f)(ii) to (vii); and|
|(iv)||must ensure that the Customer End User is aware of, and agrees to, the disclaimer in the report.|
|6.||Requirements for using the Plant App|
|6.1||The Customer must:|
|(a)||only use the Plant App in accordance with the normal operating procedures and instructions as notified by Licensor (including the Plant App Documentation);|
|(b)||ensure that it only uses, and ensures that its Users, only use and access the Plant App for the Permitted Purpose and for no other purpose;|
|(c)||pay any associated Fees, and otherwise be responsible and liable to Licensor for, any use of the Plant App:|
|(i)||by or on behalf of Customer or Users; or|
|(ii)||by or on behalf of Customer or Users; or|
except as contemplated by clause 6.1(b), not authorise any other party to exercise its entitlement to access and use the Plant App, or otherwise sub-license any of its rights under this agreement;
|(e)||ensure that all Users of the Plant App are aware of, understand, accept and comply with the Plant App Documentation and the terms of this agreement and the end user licence agreement (EULA) applicable to the Plant App. Any breach of the Plant App Documentation, the EULA or this agreement by any Users of the Plant App will be deemed to be a breach of this agreement by the Customer;|
|(f)||immediately notify Licensor if the Customer's actual or intended use of the Plant App exceeds the scope of any limitations or restrictions set out in this agreement or the Plant App Documentation;|
|(g)||comply with any security requirements, procedures or directions which may be notified by Licensor from time to time in respect of the access and use of the Plant App;|
|(h)||not access or use the Plant App after the Term has ended, and must ensure that its Users do the same; and|
|(i)||provide all necessary third party components referred to in item 7 of Schedule 1 so it can utilise the Plant App.|
The Customer must ensure that the Plant App is not used:
|(a)||for any unlawful activities; or|
|(b)||to upload any materials (or storing any content) that is unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.|
|6.3||The Customer is solely responsible for its use of the Plant App, and for supervising, managing and controlling use of the Plant App by its Users. Licensor may, but is not obliged to, monitor the use of the Plant App by Users to verify the Customer's compliance with this agreement.|
|6.4||Subject to clause 6.5, the Customer must not (and must ensure that its Users do not):|
|(a)||use, access, copy (except to the extent necessary to use the Plant App or report produced utilising the Plant App strictly in accordance with this agreement), distribute, disassemble, reverse-engineer, decompile, or recreate in any way the Plant App or a report produced using the Plant App or the source code of the Plant App;|
|(b)||adapt, modify or translate the Plant App or make derivative works of any kind of or utilising the Plant App or combine it with any other software (other than software prior approved by Licensor in writing);|
|(c)||use or copy any aspects of the Plant App for any purposes related to the development of other software or platforms with similar attributes, functions, features, or qualities, to those of the Plant App;|
|(d)||sell, rent, lease, license, sublicense, or resell the Plant App;|
|(e)||use the Plant App as a service bureau, or for the benefit of any third party, whether on a paid or unpaid basis, except the foregoing does not restrict Customer from using the Plant App with Customer End Users if and to the extent it is authorised to do so as part of its Permitted Purpose;|
|(f)||copy, export or extract data or other information from the Plant App (including individual templates) other than to the extent expressly authorised in this agreement or prior authorised in writing by Licensor;|
|(g)||use the Plant App to transmit any content or data, or conduct any transactions, that are unlawful or infringe any third party rights;|
|(h)||introduce any Harmful Code into the Plant App or Licensor's computer systems or networks;|
|(i)||interfere with or circumvent the security and integrity of the Plant App;|
|(j)||conduct penetration or security testing of the Plant App except to the extent explicitly authorised by Licensor in writing; or|
|(k)||allow or authorise anyone to do any of the foregoing.|
|6.5||The restrictions set out in clause 6.4 do not apply to the extent prohibited by applicable Law, or to the extent that applicable Laws do not permit Licensor to impose these restrictions on the Customer. To the extent permitted by law, the Customer must notify Licensor in writing that the Customer intends to not comply with the restrictions set out in clause 6.4 due to such Laws.|
|6.6||Licensor reserves the right, in its sole discretion and without liability, to restrict, suspend or terminate the Customer's access to part or all of the Plant App:|
|(a)||if the Customer (or any of its Users) are in breach of this agreement;|
|(b)||where permitted by the Plant App Documentation; or|
|(c)||if continued use may result in material harm to the Plant App or its users.|
|6.7||The Customer must promptly notify Licensor of any Defects in relation to the Plant App, in accordance with Schedule 2.|
|(a)||acknowledges that the Plant App is only a tool to assist with the assessment of plant and equipment, and is not a substitute for obtaining professional assessment of its plant and equipment for compliance with applicable Laws;|
|(b)||agrees that it is solely responsible for complying with all applicable Laws (including any work health and safety Laws and applicable Australian and international standards) in relation to any plant or equipment;agrees that it is solely responsible for complying with all applicable Laws (including any work health and safety Laws and applicable Australian and international standards) in relation to any plant or equipment;|
|(c)||agrees to, and will procure its Users to, check and verify each report created using the Plant App before utilising any report or submitting it to any Customer End User or any other end user recipients to ensure the control areas that they have selected within the Plant App have been correctly represented in the report and accurately represents the assessment they have carried out;|
|(d)||agrees that the accuracy of any reports of plant and equipment generated using the Plant App rely on the inputs provided by the User, and to the maximum extent permitted by law, Licensor is not liable for (and Customer releases Licensor from) any loss, damage or expense suffered by Customer or any other person in connection with any reports that are generated utilising the Plant App where:|
|(i)||the User is not qualified, or does not have the necessary experience, to inspect the relevant plant and equipment;|
|(ii)||the User has not attended any mandatory training provided by Licensor;|
|(iii)||the User has input incorrect details into the Plant App;|
|(iv)||the User has not utilised the correct or most up to date template for the relevant plant or equipment;|
|(v)||the User has used a template to assess the plant or equipment that has been modified by the Customer or User, or the template or the Licensor's website contains a warning that the relevant template may be out of date;|
|(vi)||the User uses the Plant App to assess plant or equipment located outside the Territory;|
|(vii)||the User fails to conduct a review of the report as required by clause 7.1(c); or|
|(viii)||there have been changes to Laws or standards after the currency date of the relevant template;|
|(e)||must promptly notify Licensor via the Help Desk if it believes any Plant App template contains an error or is out of date, and not use such template to assess any plant or equipment pending investigation by Licensor;|
|(f)||warrants to Licensor that the Customer will (and ensure that its Users will) use the Plant App only for lawful purposes and comply with all applicable Laws in its use of the Plant App; and|
|(g)||acknowledges and agrees that it has in place appropriate professional and public liability insurance in relation to its plant and equipment.|
|7.2||While Licensor will use reasonable commercial endeavours to proactively review relevant Laws and standards in the Territory on a quarterly basis and to update templates accordingly, each template is only current with Laws and standards in the Territory in effect as at the date indicated for that template within the Plant App (currency date). As Laws and standards continually change, it is the Customer's and each User's responsibility to check whether there have been any changes to the relevant Laws or standards for the plant or equipment following the currency date for the template and to factor this in to any assessment of the relevant plant or equipment. Once the Licensor is aware a change to a Law or standard impacts plant or equipment templates it will use reasonable commercial endeavours to promptly flag that the template is out of date within the Plant App or on the Licensor's website. The Plant App has not been designed for compliance with Laws and standards applicable outside the Territory and any use outside the Territory is entirely at Customer's sole risk.|
|8.1||Subject to clause 8.2, Customer acknowledges that it is responsible for all Customer Data stored or produced using the Plant App, and that Licensor will process the Customer Data through the Plant App on the Customer's behalf.|
|8.2||Licensor will implement reasonable security measures to protect the Customer Data from unauthorised access, disclosure or loss while it is stored in the Plant App.|
|8.3||Customer acknowledges and agrees that security measures are not absolute, and Licensor does not guarantee that the Customer Data will not be subject to unauthorised access, disclosure or loss. Licensor is not responsible for any unauthorised access, disclosure of loss of the Customer Data that:|
|(a)||arises due to a breach of this agreement, or any negligent act or omission, of Customer, its Personnel or any Users; or|
|(b)||was not (or would not have been) prevented by Licensor implementing reasonable security measures in accordance with this clause 8.2.|
|8.4||Customer must ensure that all Customer Data or other information provided to Licensor:|
|(a)||is accurate, complete and up to date;|
|(b)||does not infringe (and can be used by Licensor as contemplated by this agreement without infringing) any Laws, including Privacy Laws, or the IP Rights (or any other rights) of any person; and|
|(c)||is not misleading, deceptive, unlawful, fraudulent or defamatory.|
|8.5||Customer grants Licensor a non-exclusive, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, transmit, display and store the Customer Data during the Term to the extent:|
|(a)||required for Licensor to operate the Plant App;|
|(b)||necessary for Licensor to perform its obligations, and exercise its rights, under this agreement; and|
|(c)||permitted or required by Law.|
|8.6||Customer grants Licensor an irrevocable, perpetual, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, adapt, display, store, exploit, and commercialise information relating to Customer's usage of the Plant App (usage data) for Licensor's external business purposes, including via the provision of reports and services to third parties that are based on or utilise the relevant information, provided that when using the relevant data for such purpose, any materials utilising or reproducing any relevant information that is provided to a third party must not reference or identify the Customer or any Users without their prior written consent.|
|8.7||The Customer acknowledges and agrees that is solely responsible for:|
|(a)||doing all things necessary (including by providing any notices and obtaining all consents that are required under applicable Laws) to ensure that:|
|(i)||Customer's access and use of Personal Information provided by, or on behalf of the Customer, or its Users, via the Plant App; and|
|(ii)||does not infringe any Laws or third party rights; and|
does not infringe any Laws or third party rights; and
maintaining its own back-ups of any Customer Data that is stored in the Plant App.
|8.8||Licensor is under no obligation to retain any Customer Data, including following termination or expiry of this agreement, and the Customer acknowledges that the Customer Data may be irrevocably deleted by Licensor without notice to the Customer.|
|9.||Customer improvements and templates|
|9.1||If the Customer, its Personnel or Users:|
|(a)||notify Licensor of any suggested amendments or improvements to the Plant App; or|
|(b)||modify, alter or enhance the Plant App in any way; or|
|(c)||create new plant or equipment templates or modify existing Licensor provided templates that are uploaded to the Plant App or are otherwise submitted to Licensor,|
|(collectively, Improvements) all IP Rights in and to such Improvements are:|
|(d)||owned by and hereby assigned to Licensor immediately upon creation free of encumbrances; and|
|(e)||deemed to form part of the Plant App that is licensed to the Customer under this agreement.|
|9.2||If requested by Licensor, the Customer must do all things and sign all documents to give effect to the assignment of the Improvements to Licensor and procure its Users and Personnel to do so. To the extent any pre-existing IP Rights of the Customer are incorporated in any Improvements or are required in order to exploit or use such Improvements, the Customer hereby grants Licensor a non-exclusive, perpetual, transferable, royalty free licence (with the right to sub-licence) such IP Rights to the extent required for Licensor to use and exploit the Improvements for any purpose.|
|9.3||The Customer consents (and agrees to procure the consent from any Users or Personnel of Customer involved in creating any Improvement) to Licensor, its successors, assigns and any of their licensees exercising all rights subsisting in the Improvements which are copyright works including but not limited to the right to use, exploit, copy, deal with, communicate, reproduce, transmit, publish, exhibit, publicly perform, alter, adapt and modify such copyright works in any media throughout the world:|
|(a)||with or without attribution of authorship to the Customer Personnel or User that was the author of the Improvement;|
|(b)||bearing Licensor's, or any of their successors, assignees, successors or licensees' name; and|
|(c)||in any manner which would, but for this consent, otherwise infringe the Customer Personnel or User's Moral Rights in such copyright works.|
|9.4||Customer is not liable to the Licensor if the Licensor adopts any Improvements in its Plant App and those Improvements are inaccurate. Licensor will review and approve any Improvements prior to making them generally available for use by other users.|
|10.1||Nothing in this agreement:|
|(a)||transfers ownership in any IP Rights in the Plant App to the Customer; or|
|(b)||grants the Customer any rights to use any IP Rights of Licensor, except as expressly stated in this agreement.|
|10.2||Licensor and its licensors own all IP Rights in, and associated with, the Plant App, including all modifications and improvements made to it in connection with this agreement or otherwise.|
|10.3||As between Licensor and the Customer:|
|(a)||ownership of all rights in the Customer Data remains with the Customer; and|
|(b)||ownership of all rights in the Plant App including all Improvements vests in Licensor.|
|10.4||The Customer agrees:|
|(a)||not to do any act or thing which might invalidate or be detrimental to the IP Rights of Licensor and its licensors in the Plant App;|
|(b)||not to assert or represent that it has any proprietary or Intellectual Property rights, title or interest in the Plant App, or register or attempt to register any such rights;|
|(c)||not to use (or allow any third party to use) the Plant App (or the Plant App Documentation or any other materials or information provided by Licensor) in connection with the development of any software or technology platform that competes (or could reasonably be used to compete) with the Plant App; and|
|(d)||to bring to the immediate attention of Licensor:|
|(i)||any actual, suspected or threatened infringement of the IP Rights in the Plant App; or|
|(ii)||and to provide Licensor with reasonable assistance in such a claim.|
|and to provide Licensor with reasonable assistance in such a claim.|
|10.5||The Customer agrees that Licensor may publicly identify the Customer as a customer of Licensor and user of the Plant App, and may include the Customer's logo and trade marks on its website and marketing materials (subject to complying with any brand guidelines issued by the Customer in relation to the use of its trade marks). If requested by Licensor, the Customer will provide a brief profile of itself and its use of the Plant App which may be used by Licensor for promotional purposes.|
|11.1||Each party (receiving party) must keep confidential, and not disclose, any Confidential Information of the other party (disclosing party) except:|
|(a)||as permitted under this agreement;|
|(b)||where the receiving party has obtained the prior written permission of the disclosing party;|
|(c)||to the receiving party's Personnel, professional advisers, auditors, and insurers who have a need to know the Confidential Information and agree to keep it confidential on terms consistent with this agreement;|
|(d)||to the receiving party's Related Bodies Corporate;|
|(e)||to the receiving party's auditors; or|
|(f)||where the receiving party is compelled to do so by Law or the rules of a stock exchange, provided that where possible it gives the disclosing party written notice prior to disclosure.|
|11.2||Each party must only use Confidential Information of the other party to the extent required to exercise its rights and perform its obligations under this agreement.|
|11.3||Except as permitted under clause 10.5, each party must not make any public statement or issue any press release concerning or relating to this agreement or its relationship with the other party without the prior written consent of the other party.|
|11.4||On termination or expiry of this agreement, on request from the disclosing party, the receiving party must return or destroy all copies of the Confidential Information of the disclosing party in its power, possession or control. The foregoing does not require Licensor to return or destroy any materials, information or data for which it has an ongoing perpetual licence to use pursuant to clause 8.6 or 9.2.|
|12.||Records, monitoring and audit rights|
|(a)||maintain current, complete and proper records relating to the performance of its obligations under this agreement; and|
|(b)||provide Licensor with access, on reasonable notice, to the Customer's records relating to the Plant App in electronic or paper form as Licensor reasonably requires in order to enable Licensor to review an audit the Fees charged to the Customer.|
|12.2||Without limiting clause 12.1, the Customer agrees:|
|(a)||that Licensor may remotely monitor the usage of the Plant App by Customer and its Users, including to ensure the correct calculation of Fees and compliance by the Customer with the terms of this agreement; and|
|(b)||to submit to, and provide all reasonable co-operation in relation to, any audit of the Customer's compliance with this agreement and usage of the Plant App that is requested by Licensor.|
|12.3||If any usage monitoring or audit establishes that the Customer has been undercharged, the Customer shall pay the sum undercharged within 14 days together with the costs of any audit incurred by Licensor.|
|13.1||The Customer must pay Licensor the Fees. Licensor may update the Fees from time to time and published within the Plant App or notified in writing to Customer.|
|13.2||Unless otherwise agreed by the parties, the Customer must pay any invoices issued by Licensor at the time of making an order or request for Services (or reports).|
|13.3||If the Customer fails to pay a correctly rendered invoice by the date required under clause 13.2 then, without limiting any other rights or remedies that Licensor may have in relation to the Customer's payment default, the Customer must pay interest of 5% per annum calculated daily in relation to the amount of the unpaid invoice.|
|13.4||Subject to clause 14, the Customer is responsible for payment of all Taxes that arise as a result of or in connection with the Agreement.|
|14.1||In this clause 14:|
|(a)||words and expressions which are not defined in this agreement but which have a defined meaning in GST Law have the same meaning as in the GST Law; and|
|(b)||GST Law has the same meaning given to that expression in A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|14.2||Unless otherwise expressly stated, all Fees or other sums payable or consideration to be provided under this agreement are exclusive of GST.|
|14.3||If GST is payable by a supplier or by the representative member for a GST group of which the supplier is a member, on any supply made under this agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply.|
|14.4||The recipient will pay the amount referred to in clause 14.3 in addition to and at the same time that the consideration for the supply is to be provided under this agreement.|
|14.5||The supplier must deliver a tax invoice or an adjustment note to the recipient before the supplier is entitled to payment of an amount under clause 14.3. The recipient can withhold payment of the amount until the supplier provides a tax invoice or an adjustment note, as appropriate.|
|14.6||If an adjustment event arises in respect of a taxable supply made by a supplier under this agreement, the amount payable by the recipient under clause 14.3 will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier or by the supplier to the recipient as the case requires.|
|14.7||Where a party is required under this agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:|
|(a)||the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled; and|
|(b)||if the payment or reimbursement is subject to GST, an amount equal to that GST.|
|15.||Warranties and indemnities|
|15.1||Each party represents and warrants to each other party that:|
|(a)||it has capacity unconditionally to execute and deliver and comply with its obligations under this agreement;|
|(b)||it has taken all necessary action to authorise the unconditional execution and delivery of, and the compliance with its obligations under, this agreement;|
|(c)||this agreement constitutes its valid and legally binding obligations and is enforceable against it by any other party in accordance with its terms; and|
|(d)||its unconditional execution and delivery of, and compliance with its obligations under, this agreement, do not contravene:|
|(i)||any law to which it or any of its property is subject or any order or directive from a government body binding on it or any of its property; or|
|(ii)||its constituent documents, any agreement or instrument to which it is a party or any obligation to any other person.|
|15.2||To the maximum extent permitted by law (but subject to clause 16), the Customer acknowledges and agrees that:|
|(a)||Licensor may, as part of the Support Services, release updates, patches, error corrections, modifications, enhancements and new versions of the Plant App (updates) at Licensor's absolute discretion from time to time, and the Customer agrees to utilise all such updates as they are made available to the Customer;|
|(b)||Licensor is not obliged to provide any updates, support, advice, or training, in relation to the Plant App, or in relation to the Customer's use of the Plant App, except as expressly specified in Schedules 1 and 2;|
|(c)||Licensor is unable to analyse or confirm the accuracy of the inputs provided by the Customer (or its Users) which impacts the reports produced by the Plant App, and accordingly, the Licensor does not warrant or guarantee that the use of the Plant App (and associated templates) will correctly assess the plant or equipment for compliance with applicable Laws, and the Licensor is not liable for the accuracy of, or the Customer's use or reliance on, such reports;|
|(d)||unless prior agreed by Licensor in writing, the Customer is not permitted to, and the Licensor is not liable for, any use of the Plant App to assess plant or equipment utilised in high risk activities. For the purposes of this clause, high risk activities means activities and applications where the failure or malfunction of the relevant equipment or plant may reasonably foreseeably cause significant personal injury, death or catastrophic physical or environmental damage, including aircraft navigation and control, air traffic control, mass transportation, life support machines, fire fighting, police and military operations, power plant operations, hospital and medical operations; and|
|(e)||the reports from the Plant App do not constitute legal, financial or other professional advice, and the Customer acknowledges and agrees that Licensor has not designed the Plant App in a way that ensures that the reports identify non-compliance of plant and equipment with any particular Laws.|
|15.3||To the maximum extent permitted by law (but subject to clause 16), the Licensor is not liable for any breach of this agreement, any issues with the Services or for any failure of the Plant App to conform to the Plant App Documentation:|
|(a)||if the Plant App is not used by the Customer, its Personnel or any User in accordance with the Plant App Documentation and this agreement; or|
|(b)||if the non-conformity or issue is caused by an act or omission of Customer or its Personnel or Users, by any third party product or service, or by any matter that is outside of Licensor's reasonable control.|
|15.4||Customer indemnifies Licensor, its Related Bodies Corporate and each of their officers, employees and agents (those indemnified) from and against any claim, action, demand, loss, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with:|
|(a)||the Customer's or the Users' use of the Plant App in breach of any applicable Law;|
|(b)||any personal injury, death or property damage caused by any plant or equipment that is assessed using the Plant App which is later found to not comply with applicable Laws (including where caused by incorrect use of the Plant App by the User), whether or not the report for the plant or equipment identified the non-compliance;|
|(c)||the Customer's breach of this agreement (including any warranty);|
|(d)||any wilful or negligent act or omission of Customer, Users or Customer Personnel in connection with this agreement;|
|(e)||any claim or allegation by any Customer End User or any other end user recipients against those indemnified in connection with this agreement, including in connection with any such person's reliance on any reports generated via the Plant App; or|
|(f)||any claim or allegation by any Customer End User or any other end user recipients against those indemnified in connection with this agreement, including in connection with any such person's reliance on any reports generated via the Plant App; or|
|15.5||Customer warrants that it has obtained all authorisations and consents required by Law (including all Privacy Laws) and from any third parties in relation to the Customer Data and any other materials provided to Licensor by or on behalf of Customer that are required for Licensor to exercise its rights, and perform its obligations, under this agreement.|
|15.6||Licensor indemnifies Customer for any damages awarded or settlement agreed as a result of any claim against Customer by a third party that the Plant App or Services infringe a third party's IP Rights, provided that:|
|(a)||Customer notifies Licensor promptly of any such claim;|
|(b)||Licensor is given sole control of the defence and/or settlement of the claim; and|
|(c)||Customer fully co-operates and provides all reasonable assistance to Licensor in the defence or settlement.|
|15.7||Licensor shall have no obligations to indemnify under clause 15.6 to the extent that a claim is based on:|
|(a)||the combination, operation or use of the Services or Plant App with other data, products, software, processes, materials or services not provided or authorised by Licensor, if such infringement would have been avoided in the absence of such combination, operation or use;|
|(b)||any unauthorised use of the Services or Plant App, including use of the Services or Plant App by or on behalf of Customer or a User in any manner inconsistent with the agreement;|
|(c)||modification of the Services or Plant App by a party other than Licensor; or|
|(d)||the Customer Data or Improvements.|
|16.||Australian Consumer Law|
|16.1||In this agreement, "Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of state and territory fair trading legislation and the terms "Consumer" and "Consumer Guarantees" have the meaning given to them in the Australian Consumer Law.|
|16.2||The Australian Consumer Law provides Consumers with a number of Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in this Agreement are therefore subject to, and will not apply to the extent that they limit or exclude any Consumer Guarantees that may apply to the Customer if it is a Consumer. However, where the Australian Consumer Law permits Licensor to limit the remedies for a breach of such Consumer Guarantees, Licensor's liability to Customer in connection with a breach of or failure to comply with a Consumer Guarantee is limited as set out in clause 17.2(b).|
|17.||Exclusions and limitations of liability|
|17.1||All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this agreement are excluded other than:|
|(a)||those set out in the terms of this agreement; and|
|(b)||any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by agreement including those under the Australian Consumer Law (Non-Excludable Terms).|
|17.2||To the maximum extent permitted by law (but subject to clause 16):|
|(a)||Licensor does not warrant that the Plant App will be error free, or that Customer's use of the Plant App will be uninterrupted, or that the Plant App will meet the Customer's requirements or be fit for any particular purpose;|
|(b)||if Licensor is liable for a breach of a Non-Excludable Term, where it is permissible to limit liability for such Non-Excludable Term, Licensor's liability is limited (at its option, acting reasonably) to:|
|(i)||in relation to goods, replacing or repairing the goods, or paying the costs of replacing or repairing the goods; or|
|(ii)||in relation to services, the re-supply of services or the payment of the cost of having the services resupplied; and|
|(c)||Licensor excludes all liability arising under or in connection with this agreement (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) for any loss of profit, revenue, data, contracts, goodwill or business, or any interruption to the business of the Customer or any of its Related Bodies Corporate, or any consequential, indirect, special, punitive or incidental damages.|
|17.3||To the maximum extent permitted by law (but subject to clause 16), with the exception of:|
|(a)||any liability that Licensor may have under a Non-Excludable Term; and|
|(b)||any liability that Licensor may have under an indemnity or for fraud,|
|Licensor's maximum aggregate liability to the Customer under or in connection with this agreement (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) is limited to the lower of $1,000 and the Fees paid by the Customer during the 6 month period preceding the event giving rise to the claim.|
|18.1||Licensor can terminate this agreement with immediate effect by notice in writing to the Customer where:|
|(a)||the Customer ceases business, or threatens to do so;|
|(b)||the Customer breaches a term of this agreement which is capable of remedy, but does not remedy the breach within 14 calendar days of notice in writing issued by Licensor, identifying the breach and requesting remedy;|
|(c)||the Customer breaches a term of this agreement and that breach is incapable of remedy; or|
|(d)||an Insolvency Event occurs in respect of the Customer.|
|18.2||Either party may terminate the agreement for convenience on 7 days written notice to the other party. If Licensor terminates the agreement pursuant to this clause, it will refund any amounts paid by the Customer in advance (if any) that relates to the period beyond the effective date of termination. If Customer terminates pursuant to this clause, to the extent permitted by law and unless otherwise agreed by Licensor, the Customer forfeits any credits to prepare reports which had been paid for but not used as at the effective date of termination.|
|18.3||The Customer can terminate this agreement with immediate effect by notice in writing to Licensor where:|
|(a)||Licensor ceases business, or threatens to do so;|
|(b)||Licensor materially breaches a term of this agreement but does not remedy the breach within 14 days of notice in writing issued by the Customer, identifying the breach and requesting remedy; or|
|(c)||an Insolvency Event occurs in respect of Licensor.|
|19.||Consequences of termination|
|19.1||Immediately upon expiration or termination of this agreement for any reason, the Customer must:|
|(a)||cease using the Plant App;|
|(b)||comply with clause 11.4;|
|(c)||if requested by Licensor, certify in writing to Licensor that the Customer has complied with paragraphs (a) and (b); and|
|(d)||pay to Licensor all outstanding amounts owing to Licensor.|
|19.2||Immediately upon expiration or termination of this agreement for any reason, Licensor may use remote or other means to limit or disable the Customer's and its Users' access to, or use of, the Plant App.|
|19.3||Without limiting clause 8.8, Licensor is under no obligation to continue to store or provide the Customer with access to any Customer Data, reports or other material stored in or generated by the Plant App.|
|19.4||Any termination of this agreement shall not affect any accrued rights or liabilities of any party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.|
|20.1||A party will be relieved from performance of its obligations under this agreement to the extent that it is unable to perform those obligations due to a Force Majeure Event.|
|20.2||If a Force Majeure Event persists for a period of more than 10 days, Licensor may terminate this agreement (without liability) by giving written notice to the Customer.|
|20.3||For the avoidance of doubt, this clause 20 does not apply to the Customer's obligations under this agreement to pay amounts that are due and payable to Licensor.|
|Clauses 6.1(h), 6.4, 8.6, 9, 10.4, 11, 15.4, 15.6, 15.7 16, 17 and 19, and any other provisions of this agreement which, by their nature, are continuing, survive the termination or expiration of this agreement.|
|The parties are independent contractors and nothing in this agreement gives rise to any relationship of agency, partnership, employment or otherwise.|
|This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.|
|If any provision of this agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.|
|21.5||Assignment and subcontracting|
|(a)||Licensor may assign, novate or transfer any of its rights and obligations under this agreement at any time on written notice to Customer.|
|(b)||Customer must not assign, novate, transfer or subcontract any of its rights under this agreement without the prior written consent of Licensor.|
|(c)||Licensor may subcontract any of its obligations under this agreement to any person.|
|No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. A single or partial exercise or waiver by a party of a right relating to this agreement does not prevent any other exercise of that right or the exercise of any other right.|
|Except as expressly stated otherwise in this agreement, the rights of a party under this agreement are cumulative and are in addition to any other rights of that party.|
|Except as contemplated by clause 3.2(b), no variation of this agreement is effective unless made in writing and signed by each party.|
|21.9||Costs, expenses and duties|
|Each party must pay its own costs and expenses in relation to the negotiation, preparation, execution, variation and performance of this agreement.|
|This agreement is governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.|
|This agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.|
|Any notices under this agreement must be given in writing and by post, email or any other lawful means. The particulars for delivery of notices are initially, in relation to the Customer, as set out in item 1 of Schedule 1 and, in relation to Licensor, post: First floor, 121 High Street, Kew, Vic 3101; email: [email protected]. A party may change their particulars for delivery by notice to the other party.|
(a) headings are for convenience only and do not affect the interpretation of this agreement;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(e) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or any part of it; and
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a party includes its successors, permitted assigns and permitted persons substituted by novation;
(iii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(iv) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes email transmissions;
(v) a right includes a benefit, remedy, discretion or power;
(vi) time is to local time in Melbourne, Australia; and
(vii) a monetary amount is in Australian dollars.
In this agreement:
Commencement Date means the date this agreement is executed by the last party.
Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is:
(a) in the public domain other than through a breach of confidence;
(b) independently developed by the receiving party; or
(c) is received by the receiving party from a third party who is not bound by obligations of confidence in relation to that information.
Customer End Users has the meaning given in clause 5.4(h).
Customer Data means all data that is uploaded by the Customer to the Plant App and any reports generated by the Customer through its use of the Plant App, excluding any Improvements or IP Rights in the Plant App (including the report templates).
Fees means the amounts payable by the Customer under this agreement, as initially set out in Schedule 1 and subsequently varied in accordance with this agreement.
Force Majeure means an event or circumstance over which a party could not reasonably have exercised control including, but not limited to, an act of God; fire; lightning; explosions; flood; subsidence; insurrection or civil disorder or military operations; sabotage; pandemic; telecommunications infrastructure or network failures; expropriation, prohibition, intervention, confiscation, embargo or restraint of property by or under the order of any government or government authority; strikes; lock-outs or other industrial disputes of any kind.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time.
GST Law has the meaning given to it in the GST Act.
Harmful Code means any computer code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data including viruses, worms, spyware, adware, keyloggers, trojans, and any new types of programmed threats that may be classified.
Improvements has the meaning given in clause 9.1.
Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.
IP Rights means all existing and future copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time and includes the common law and equity as applicable from time to time, and any mandatory Australian and international standards.
Moral Rights has the same meaning as in the Copyright Act 1968 (Cth) and includes rights of attribution of authorship, rights of integrity of authorship, rights not to have authorship falsely attributed, and rights of a similar nature that exist, or may come to exist, anywhere in the world.
Permitted Purpose has the meaning given in item 4 of Schedule 1.
Personal Information means:
(a) 'personal information' as defined in the Privacy Act 1988 (Cth); and
(b) any other information that is regulated by, or under, any applicable Privacy Law.
Personnel means employees, directors, agents, contractors and subcontractors, including employees and contractors (who are individuals) of subcontractors.
Plant App means the application described in item 2 of Schedule 1. Unless the context expressly indicates otherwise, a reference to Plant App in this agreement includes all equipment and plant templates made available via or in connection with the Plant App.
Plant App Documentation means Licensor's user instructions, manuals, policies, specifications and other documentation for the Plant App, as updated from time to time, including the documents specified or referenced in item 3 of Schedule 1.
Privacy Laws means the Laws relating to the protection of Personal Information, including the Privacy Act 1988 (Cth), the Australian Privacy Principles under that Act, and any other laws relating to privacy, data protection, direct marketing or the handling of personally identifiable information or data by which either party is contractually or legally bound to comply with.
Related Body Corporate has the meaning defined in the Corporations Act 2001 (Cth).
Services mean the services provided by Licensor to the Customer under this agreement, including the Support Services and Training Services.
Support Services means the support services described in schedule 2 (Support Services).
Taxes means all taxes, levies, rates, charges, duties, imposts of any kind whatsoever, including withholding tax.
Tax Invoice has the meaning given in the GST Act.
Term has the meaning given in clause 2.1.
Territory means Australia.
Training Services means the training services described in item 3 of Schedule 1.
User means an individual who accesses or uses the Plant App using Customer's account or login credentials or otherwise with the authorisation of the Customer.
1. Customer details
The "Customer" name, ABN (if applicable), address and contact details will be as specified at the time of registering for the Plant App within the app itself or at www.plantriskssessment.com.au (as applicable).
2. Description of Plant App
The "Plant App" is Licensor's plant and equipment risk management application, which assists Users in assessing the plant and equipment against certain criteria and applicable standards, and allows the User to generate reports for the plant and equipment that have been assessed.
3. Plant App Documentation
The documentation describing the Plant App functionality, specifications and how to use Plant App is specified within the Plant App and / or via the Licensor's website at www.plantriskssessment.com.au.
4. Permitted Purpose
The Plant App and Plant App Documentation may be used and accessed by the Customer and its Users for:
(Internal use) - Reviewing and assessing plant and equipment owned by or leased to the Customer or its Related Bodies Corporate. (An example of this type of use would be if the Customer has a team of employees that will be using the Plant App as a tool to review and conduct assessments of the Customer's own plant or equipment, whether owned or leased by the Customer or its Related Bodies Corporate.)
(External Use) Reviewing and assessing plant and equipment owned by or leased to a clients of the Customer (see definition of Customer End Users). (An example of this type of use would be if the Customer is a professional assessor of plant or equipment and wishes to use the Plant App as a tool to conduct assessments for its third party clients.) The foregoing does not permit the Customer to permit direct use of the Plant App by Customer End Users, but it is permitted to provide the reports generated to the Customer End Users (see clause 5.4 for further details).
5. Training Services (clause 4 )
The Training Services available are described at www.plantriskassessment.com.au.
6. Fees (clause 13 )
a) Training Fees
The Training Fee applicable for Training Services is as specified within the Plant App or as otherwise agreed by the parties in writing.
Licensor may invoice the training fee immediately on the earlier of the Commencement Date or the date the Licensor orders the Training Services.
b) Licence / Usage Fees
Fees are on a per report basis for each report generated by the Customer or its Users. The fee applicable is specified within the Plant App or as otherwise agreed by the parties in writing
c) Support Services Fees
No additional fees for the support services specified in Schedule 2 applies unless the Plant App has been customised for the Customer. Where additional support beyond that contemplated in Schedule 2 is requested, additional fees may apply and such fees will be made known to the Customer at the time prior to them agreeing to proceed.
d) Additional and out of scope Services
Any additional or out of scope services that are requested by Customer, and that Licensor agrees to provide pursuant to clause 4 , will (unless otherwise agreed by Licensor) be provided on a time and materials basis at Licensor's then current time and materials rates as specified within the Plant App or notified to the Customer from time to time.
7. Minimum requirements for Customer equipment and third party software
The Customer is responsible for obtaining and maintaining at its cost all third party software licences, equipment and telecommunications access required to utilise the Plant App and for arranging to have any support and maintenance arrangement in place for such third party components.
Without limiting the foregoing, as at the Commencement Date, the third party components that the Customer requires in order to utilise Plant App are as follows:
- each User will require a device that has a minimum disk space of 200MB available or such higher amount of memory as specified when new functionality is added (Approved Device)
- - each Approved Device must have an active internet or WI-FI connection and the following operating system installed: iOS 13+ or Android 9+
- - the Customer will require the following equipment and third party software to access the administrative back-end of the Plant App (where the Customer can access the reports generated by Users and other management/administration functionality):
A desktop, laptop, Tablet or mobile device with internet connection with minimum:
· Processor: Minimum 2 GHz Dual Core
· RAM: 2 GB
Internet browser required to access. Currently supported browsers are:
· Google Chrome version: 81+
· Firefox version 78+
· Microsoft Edge version 88+
· Samsung Internet version 13+
· Safari version 11+
Licensor does not provide support for any third party software or devices, or for any issues caused by Customer supplied items, unless expressly agreed in writing by Licensor.
The minimum requirements to utilise the Plant App may be updated by Licensor from time to time on written notice to Customer, including by issuing updated Plant App Documentation or release notes with any updates for the Plant App.
1. Scope of Support Services
Licensor will provide Support Services consisting of the operation of a Help Desk as described in section 4 below.
The Customer acknowledges and agrees that Licensor is not responsible for resolving faults caused by software, hardware or other components that are outside of their networks or beyond their reasonable control (or which are due to scheduled outages).
In this schedule:
Defect means a failure of the Plant App to materially comply with the requirements of the Plant App Documentation, or any other material defect, error or problem with the Plant App.
Help Desk means a telephone and email help desk facility, as further described in section 4 below.
3. Reporting Defects
The Customer's Personnel may report any Defect of which the Customer becomes aware to Licensor by contacting the Help Desk.
4. Help Desk
Licensor will, during the Term, make a Help Desk available during business hours to the Customer to enable the Customer's Personnel to:
(a) report Defects to Licensor; and
(b) seek answers to technical and User questions relating to the Plant App.
Licensor will use reasonable endeavors to:
(c) respond to emails from the Customer's Personnel to the Help Desk; and
(d) answer technical and user questions relating to the Plant App,
as soon as practicable.
The email address for the Help Desk is [email protected]; to contact the Help Desk via phone for urgent issues please call 1300 018 306.
Business hours are between 8AM and 6PM on weekdays (other than public holidays) in Melbourne, Victoria.