SafetyPro Limited

End-User Licence Agreement for Clients

NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE LICENSED PRODUCT ACCOMPANYING THIS AGREEMENT. ACCESSING, OR USING THE LICENSED PRODUCT, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

1. 1. INTERPRETATION

2. 1.1. The Agreement and any additional agreements entered into between the Licensee and SafetyPro Limited, c/- Harts, Chartered Accountants, Level 1, 320 Ti Rakau Drive, East Tamaki, Auckland, 2013, New Zealand (the Licensor), represents the entire Agreement between Licensor and the Licensee.

3. The parties agree as follows:

4. 1.2. Definitions:

5. Account means the type of customer account nominated by the Licensee either via an online sign up process or (as the case may be) in completing the Costing Page. Those customer accounts are:

6. (a) Foundation Edition website version being an account offering a competent level of health and safety compliance or as otherwise described in the Material;
7. (b) Distinction Edition website version being an account offering a best practice level of health and safety compliance or as otherwise described in the Material; and
8. (c) Enterprise Edition website version being an account offering a customisable best practice level of health and safety compliance or as otherwise described in the Material or as otherwise agreed between the parties.

9. Agreement means this End-User Licence.

10. Effective Date means the date the Licensee accepts the terms of the Agreement.

11. Copyright shall mean the property rights which exist in any Copyright Work.

12. Copyright Work shall mean:

13. (a) a work of any of the types described in Section 14 of the New Zealand Copyright Act 1994; and/or
14. (b) a work in which copyright exists; and
15. (c) which relates to the Website and Licensed Product.

16. Content means any and all images, photos, videos, text, templates, sound recordings and other content accompanying this Agreement and provided by Licensor.

17. Confidential Information means any information which Licensor (including all trade secrets, know-how, software and other financial, business or technical information of Licensor or any of its suppliers that is disclosed by or for Licensor in relation to this Agreement) has disclosed to the Licensee, unless that information is:

18. (a) on receipt, in the public domain or that subsequently enters the public domain without any breach of this Agreement;
19. (b) on receipt, already known by the party receiving it; or
20. (c) at any time after the date of receipt, received in good faith from a third party independently developed by Licensee without reliance on such Confidential Information.

21. Costing Page means the signature page to which this Agreement is attached (if any) and if such a page exists, the parties agree that its terms are imbedded into this Agreement by reference.

22. Currently Active means a personal identity of a Worker, registered within the Licensed Product, who has not been archived and/or for whom an expiry date has been allocated where such date has yet to pass.

23. Customisation means any component of the Website customised specifically for the Licensee, subject to any applicable payment for the customisation as agreed between the parties.

24. Documentation means any user guide, help information and/or other documentation provided by Licensor with the Licensed Product.

25. Failure means that:

26. (a) A core, normally working function of the Licensed Product has stopped working; or
27. (b) The Licensee is prevented from a using the Licensed Product for its Purpose.

28. Intellectual Property means Copyright, patents, designs, the Trade Mark and any unregistered trade mark, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property.

29. Improvements means the variation, Customisation, addition and/or improvements to the Website.

30. Licensee means the user, together with the business or other entity for which the Licensed Product are obtained.

31. Licensed Product means, collectively, Content, Improvements, Updates, and all related Documentation in the Website based on the Account nominated by the Licensee pursuant to clause 2.2.

32. Material means the publication material available to the Licensee via the Website from time to time describing the Accounts and other elements of the Licensed Products in detail.

33. Monthly Licence Fee means the monthly fee allocated to the Account nominated by the Licensee or selected at the costing page.

34. Purpose means the purpose of the Licensed Product being to enter, store and retrieve health and safety data inputted by the Licensee.

35. Set Up Fee means the initial fee allocated to the Account nominated by the Licensee or set out in the Costing Page payable by the Licensee to the Licensor to initially set up the Licensed Product.

36. Support Hours means the hours during which Licensor will be available to provide the Support Services to the Licensee which are normally between 08:30 and 17:00 (New Zealand Time) on any Working Day.

37. Suspension Date means the date that the Licensor suspends the Licensee’s access to the Licensed Product for non-payment of Fees.

38. Trade Mark means Trade Mark No. 670794.

39. Updates means, if applicable, any patch, update or new version of the Software delivered to Licensee pursuant to the Support Services.

40. Website means www.safetybase.co.nz and all versions, including customised, altered and amended version of the Website.

41. Worker means a Currently Active personal identity (being a contractor, employee or similar of the Licensee) identified to the Licensor (either via the Costing Page or the Account nominated by the Licensee) and registered within the Licensed Product as a user or non-user.

1. 2. LICENCE

2. 2.1. Licensed Product

3. The Licensee has, in completing the online sign up process or (as the case may be) in completing the Costing Page, nominated its preferred type of Account. The Licensor agrees to grant to the Licensee the Account nominated by the Licensee.

4. The Licensor agrees to license to the Licensee a:

5. 2.1.1. Non-exclusive;
6. 2.1.2. Non-transferable; and
7. 2.1.3. Non-sublicensable licence to the Licensed Product, without modification, in accordance with the terms and conditions set out in the Agreement.

8. 2.2. Service Package

9. Licensor will provide the Licensee with:

10. 2.2.1. An Account;
11. 2.2.2. Initial training for the Licensed Product;
12. 2.2.3. A secure hosting of the Licensed Product using the SSL protocol for encrypting information over the Internet;
13. 2.2.4. Independent hourly backup and daily server backups by the hosting provider;
14. 2.2.5. Security Scanning and protection of your data to a commercial website standard;
15. 2.2.6. Helpdesk support as per the Support Hours provided that the Licensee agrees that the Licensor does not guarantee that it will be available during the Support Hours (due to demand levels for Support Services or unavailability for other reasons).

16. 2.3. Access conditions

17. 2.3.1. Licensee must ensure that all usernames and passwords required to access the Licensed Product are kept secure and confidential.
18. 2.3.2. Licensee must immediately notify Licensor of any unauthorised use of Licensee passwords or any other breach of security and Licensor agrees to reset any Licensee password as required.
19. 2.3.3. Licensee must take all other actions that Licensor reasonably deems necessary to maintain or enhance the security of Licensee’s computing systems and networks and Licensee’s access to the Services.

20. 2.4. Communication Conditions

21. 2.4.1. Licensee is responsible for any communication posted on the Licensed Product.
22. 2.4.2. Licensee agrees only to use such communication tools for lawful and legitimate purposes. Licensee must not use any such communication tool for posting or disseminating any material unrelated to the use of the Licensed Product, including (but not limited to, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Licensed Product, or material in violation of any law including material that is protected by copyright or trade secrets which Licensee does not have the right to use).
23. 2.4.3. When Licensee makes any communication on the Licensed Product, Licensee represents that Licensee is permitted to make such communication. Licensor is under no obligation to ensure that the communications on the Licensed Product are legitimate or that they are related only to the use of the Licensed Product. As with any other web-based forums, Licensee must exercise caution when using the communication tools available on the Licensed Product.
24. 2.4.4. The Licensor in its sole discretion is permitted to access the Licensee’s Licensed Product and remove any material it sees fit.

25. 2.5. Limitations

26. 2.5.1. The Licensed Product may only be used for Licensee’s internal business purposes for the number of Workers for which all Monthly Licence Fees have been paid to the Licensor by or on behalf of Licensee, unless Licensor expressly permits a greater number of Workers.
27. 2.5.2. Use of any copy of the Licensed Product shall otherwise comply with the terms and conditions in the Agreement.

1. 3. SUPPORT SERVICES

2. 3.1. Licensor will use commercially reasonable efforts to provide Licensee with maintenance and support for the Licensed Product during the Support Hours but makes no guarantee regarding availability and turnaround times for support.
3. 3.2. Requests for Support Services may be either be in writing, using the email address supplied to the Licensee, or via the Website, using the provided link on each web page, or by telephone.
4. 3.3. The Licensee agrees that the Licensor may charge in accordance with its then current policies for any support services (Support Services) resulting from:
5. 3.3.1. Problems, errors or inquiries relating to any unsupported hardware, system, service or other content or software;
6. 3.3.2. Customisations or alterations to the Licensed Product that are expressly requested by the Licensee, unless, at the Licensor’s sole discretion, the Licensor offers the customisation or alteration without charge.
7. 3.3.3. Any support that requires a face to face meeting, or background work, or research, where that background work or research is not directly related to the satisfactory functioning of the Licensed Product. (On-screen remote assistance, telephone or email support directly related to the satisfactory functioning of the Licensed Product is not normally chargeable).
8. 3.4. Where the Licensee requests the Licensor to provide services as set out at clause 3.3, the Licensee agrees to reimburse the Licensor for any out of pocket expenses it incurs in providing these Support Services, including without limitation travel and accommodation expenses and any expenses incurred in collecting Licensor’s fee for the Support Services.

1. 4. UPDATES

2. 4.1 The Licensor will provide the Licensee with any Update that it makes generally available to its other licensees. The Licensee agrees that the Licensor may update the Licensed Product at any time, in order to maintain currency with legislative compliance, introduce new functions and features, and generally to ensure the Licensed Product continues to provide a competitive market presence.

1. 5. CHARGES AND PAYMENT

2. 5.1. This Agreement is between Licensee and Licensor solely. Licensee will pay (or cause to be paid to) Licensor the Set Up Fee and the Monthly Licence Fee for the nominated Licensed Product Account.
3. 5.2. The Licensee must pay the upfront Set Up Fee and the initial Monthly Licence Fee to the Licensor Prior to the Effective Date.
4. 5.3. Once the Set Up Fee and initial Monthly Licence Fee has been paid to the Licensor, the Licensee will receive the Licensed Product.
5. 5.4. The Licensor will send invoices to a billing contact provided by the Licensee via email. The Licensee must continue to make payment of any ongoing Monthly Licence Fee one month in advance.
6. 5.5. Payments by Licensee must continue until this Agreement is terminated in accordance with clause 13.
7. 5.6. The Licensee must pay or arrange payment of all amounts specified in any invoice within 30 days of the invoice date. If Licensee fails to make a payments within 30 days from the invoice date, the Licensor reserves the right to charge interest at a rate of 12% (per annum) on the amount which has not been paid on time.
8. 5.7. All fees paid to Licensor are non-refundable except as expressly permitted from time to time by the Licensor in its sole discretion.
9. 5.8. The Licensor may terminate this Agreement and invalidate Licensee’s Licensed Product if the billing or contact information is false, fraudulent, or invalid. Licensee will pay all taxes, including GST, customs fees, import duties, and any other similar taxes and duties, including penalties and interest.
10. 5.9. If the Licensee fails to pay any amount due, the Licensor, in its sole discretion, may (without prejudice to its other rights) temporarily suspend the Licensee’s access to the Licensed Product until any amount due is paid. Reconnection following a suspension of no more than three months from the Suspension Date will incur a fee equal to the Monthly Licence Fee of the Licensee. Any reconnection made more than three months from the Suspension Date will be subject to payment of a new Set Up Fee.

1. 6. PROTECTION OF INTELLECTUAL PROPERTY

2. 6.1. The Licensor is the sole owner or holder (where it is a licensee) of all rights (including Intellectual Property rights) in the Licensed Product supplied under this Agreement. For the avoidance of any doubt this also includes any Improvements or Updates to the Licensed Product.
3. 6.2. The Licensee must not, nor may it permit any other person to:
4. 6.2.1. Tamper, obscure or remove any trademarks, any patent or copyright notices, or other proprietary right or legal notice in relation to the Licensed Product or packaging; or
5. 6.2.2. Do any act not otherwise permitted by this Agreement that would or might invalidate or be inconsistent with Licensor’s Intellectual Property rights.
6. 6.3. The Licensee acknowledges that any Intellectual Property subsisting in the Licensed Product, Content or Documentation is the property of the Licensor.
7. 6.4. The Licensee must notify the Licensor of any actual, threatened, or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the Licensed Product infringes any rights of any other person, as soon as that infringement or claim comes to its attention. The Licensee shall do all such things as may reasonably be required by Licensor to assist Licensor in pursuing or defending any proceedings in relation to any such infringement or claim.
8. 6.5. The Licensee indemnifies Licensor against any loss, costs, expenses, demands or liability, whether direct, indirect or consequential or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to:
9. 6.5.1. Use of the Licensed Product in combination by any means and in any form with Licensed Product or equipment not specifically approved by Licensor or in a manner or for a purpose not reasonably contemplated or authorised by Licensor; and/or
10. 6.5.2. The Licensee’s breach of clause 6.2.
11. 6.6. The Licensee agrees not to compete with Licensor in respect of the Licensed Product (including developing, selling or distributing software that is the same or similar to the Licensed Product).

1. 7. CONFIDENTIALITY

2. 7.1. The Licensee recognises and acknowledges the confidential nature of the Confidential Information.
3. 7.2. The Licensed Product is Licensor’s Confidential Information.
4. 7.3. Except for the specific rights granted by this Agreement, Licensee shall not:
5. 7.3.1. Possess;
6. 7.3.2. Use; or
7. 7.3.3. Disclose any Confidential Information without Licensor’s prior written consent.
8. 7.4. Licensee shall use reasonable care to protect the Confidential Information.
9. 7.5. Licensee shall be responsible for any breach of confidentiality by its Workers.

1. 8. RESTRICTIONS

2. 8.1. Except and only to the extent expressly specified in this Agreement, Licensee shall not:
3. 8.1.1. Use any Confidential Information to create any software, content or documentation that is similar to any Licensed Product;
4. 8.1.2. Disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Licensed Product;
5. 8.1.3. Encumber, lease, rent, loan, sublicense, transfer or distribute any Licensed Product;
6. 8.1.4. Copy, adapt, merge, create derivative works of, translate or otherwise modify any Licensed Product;
7. 8.1.5. Use the Licensed Product in an automated process;
8. 8.1.6. Use the Licensed Product, or allow the transfer, transmission, export or re-export of all or any part of the Licensed Product or any product thereof; or
9. 8.1.7. Permit any third party to engage in any of the foregoing proscribed acts.
10. 8.2. Licensee shall not use the Licensed Product for the benefit of any third party without Licensor’s prior written consent, at its discretion.

1. 9. NO IMPLIED LICENCE

2. 9.1. Except for the limited rights and licence expressly granted hereunder, no other licence is granted, no other use is permitted.

1. 10. THIRD PARTY SOFTWARE

2. 10.1. The Licensed Product may operate or interface with software or other technology that is in-licensed from, and owned by, third parties (Third Party Licensors).
3. 10.2. Licensee agrees that:
4. 10.2.1. No Third Party Licensor makes any representation or warranty to Licensee concerning the Licensed Product;
5. 10.2.2. No Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the Licensed Product;
6. 10.2.3. The Licensor provides no warranty on the workability of the third party software or service.

1. 11. WARRANTY DISCLAIMERS

2. 11.1. The Licensor promises to use its best endeavours to provide the Licensee with a Licensed Product suitable for the Purpose, but the Licensor does not warrant that the Licensed Product or Support Services will be uninterrupted or error-free. Provided that in the event of a Failure, the Licensor, in its sole discretion, promises to use its reasonable endeavours to provide remedies for the Failure upon receiving notification from the Licensee.

1. 12. SAVINGS

2. 12.1. Subject to clause 11, in no event shall Licensor (or its suppliers) be responsible, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any:
3. 12.1.1. Matter beyond its reasonable control;
4. 12.1.2. Loss or inaccuracy of data, loss or interruption of use or cost of procuring substitute technology, goods or services; or
5. 12.1.3. Indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits or goodwill.
6. 12.2. In no event shall Licensor’s liability arising out of or related to this Agreement exceed the Set Up Fee and Monthly Licence Fee paid by Licensee to Licensor for the Licensed Product or Support Service that gave rise to the claim during the prior 3-month period, even if Licensor has been advised of the possibility of such damages.

1. 13. TERM AND TERMINATION

2. 13.1. This Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein.
3. 13.2. Licensee may terminate this Agreement with one month’s written notice to Licensor.
4. 13.3. Full payment of contract by Licensee to Licensor will be due upon termination.
5. 13.4. This Agreement shall automatically terminate without further action by any party, immediately upon any material breach by Licensee.
6. 13.5. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that:
7. 13.5.1. All obligations that accrued prior to the Effective Date of termination (including without limitation, any payment obligation) and any remedies for breach of this Agreement shall survive any termination;
8. 13.5.2. The provisions of sections 5 (Charges and Payments), 7 (Confidentiality), 6 (Intellectual Property), 11 (Warranty Disclaimers), 12 (Savings), 13 (Term and Termination), 15 (General Provisions) shall survive.
9. 13.5.3. At any time during the currency of the Licenced Product, and for 3 months following closure of the account, the Licensee may request all data associated with their current Licenced account(s), to be supplied in an agreed electronic medium and/or device. Such data supply will be subject to the charging of reasonable fees related to the costs of data extraction, copying or transmission. This clause shall not apply, if, in the sole discretion of the Licensor, the aggregated data is implicated in any action associated with the use of Clause 13.4, and in particular any breaches associated with Section 8 of this Licence Agreement.
10. HEALTH AND SAFETY
11. 13.6. The Licensed Product does not in any way provide legal or professional advice on health and safety laws or issues.
12. 13.7. The Licensed Product was developed to manage health and safety matters and store data relating to health and safety.

1. 14. GENERAL PROVISIONS

2. 14.1. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement.
3. 14.2. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought.
4. 14.3. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
5. 14.4. Any notice or communication hereunder shall be in writing and either personally delivered or sent via recognized express delivery courier or certified or registered mail, prepaid and return receipt requested.
6. 14.5. Notices shall be delivered to the address specified by Licensee when the Licensed Product is ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice.
7. 14.6. Consents and approvals required under this Agreement may be provided electronically, if they are provided in a jurisdiction that recognises electronic signatures as enforceable under the particular circumstances.
8. 14.7. All notices shall be in English, effective upon receipt or, if refused, three (3) business days after being sent as set forth above.
9. 14.8. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect.
10. 14.9. The Licensor may assign this Agreement to any third party without the Licensee’s consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
11. 14.10. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12. 14.11. Both parties recognise and agree that the warranty disclaimers and liability and remedy limitations are materially bargained-for on the basis of this Agreement and that they have been taken into account by both parties and reflected in determining the consideration to be exchanged between the parties hereunder and in the decision to enter into this Agreement.
13. 14.12. Licensee acknowledges that:
14. 14.12.1. Licensee has read and understands this Agreement;
15. 14.12.2. It has had an opportunity to have its legal counsel review this Agreement;
16. 14.12.3. This Agreement has the same force and effect as a signed agreement,
17. 14.12.4. Licensor requires identification of the Workers before issuing this licence granted by this Agreement; and
18. 14.12.5. Issuance of the licenses granted under this Agreement does not constitute general publication of the Licensed Product or any other Confidential Information.
19. 14.12.6. The Licensor reserves the right to update the terms of the Agreement without notice to Licensee but that the Licensor will use its best endeavours to notify the Licensee via the email address provided by the Licensee to the Licensor.