SAFETY TRACKER PTY LTD t/a Digi Clip
SOFTWARE SERVICE AGREEMENT
TERMS AND CONDITIONS
1.1These Terms and Conditions (Terms) form the agreement (Agreement) between Digi Clip Pty Ltd ABN 65 169 314 363 (referred to as “Digi Clip”, “we” or “us”) and the user (referred to as “the User” or “you”), collectively referred to as the Parties or each a Party.
1.2Digi Clip owns the
software (Software) which is accessible at www.digiclip.io (Site) or www.safetytracker.net.au (Site) and by downloading the Digi Clip application on smart devices (App).
1.3The User wishes to use the Software.
1.4This Agreement sets out the Terms upon which Digi Clip has agreed to grant the User a right to use the Software. These Terms are binding on any use of the Software and apply to the User from the time that Digi Clip provides the User with an account to access and use the Software (Account).
1.5By using our Software and subscribing on our Site or App, you acknowledge that you have read and understood these Terms and you have the authority to act on behalf of any person or entity for whom you are using the Software, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software.
1.6Digi Clip reserves the right to make changes to these Terms at any time, effective upon the posting of modified Terms. Digi Clip will make every effort to communicate these changes to the User via email. It is the User’s obligation to ensure that the User has read, understood and agree to the most recent Terms available on our Site.
2.SOFTWARE AND SERVICES
2.1The Software provides a means for the User to capture, monitor and communicate work health and safety information, and environmental and quality organisational data, as set out in the Software.
2.2The Software is provided to the User via the Site and the App.
2.3The User will only be able access the Software by completing an online subscription.
2.4Digi Clip may, upon request by the User, customise the Software to meet the particular needs of the User. It is at our sole discretion, whether or not we customise the Software for you. If we agree to customise the Software for you, a separate written agreement will be entered into between Digi Clip and you, outlining the terms and conditions for doing so.
2.5The services provided by Digi Clip includes any services relating to application development, application service provider, software development/programming and software sales (Services). This includes, but is not limited to, providing functions, programs, or other services available to the User through the Software whether accessed via the Site or App, technical support provided in relation to the Software, and, if requested, customisation of the Software to meet the particular needs of a User in accordance with clause 2.4 above.
3.ONLINE SUBSCRIPTION AND ACCOUNT
3.1The Software is currently only intended for use in the countries set out on the Site. Organisations which are not registered in these countries will not be able to complete an online subscription.
3.3Information that is created when you subscribe, such as log in details and passwords (User Information) are stored in servers in Australia. We will take steps to ensure that User Information is kept secure and confidential, including storing User Information in an encrypted format and transmitting User Information via https SSL – Secure Socket Layer.
3.4You will be required to pay a fee for your subscription (Subscription Fee) as set out on our Site. You will not be given an Account to access and use the Software until payment is made.
3.5Upon subscription, the User obtains a valid Account to use the Software, and Digi Clip agrees to grant to the User a royalty free, Australia wide, irrevocable,
right to use the Software which cannot be
to third parties.
3.6You have the option of changing your subscription by adding or reducing the number of users to your Account. This can be activated immediately.
4.1You agree to pay the Subscription Fee required to enable you to access and use the Software.
4.2You will be required to make payment by way of credit card and you must provide your credit card details when completing your online subscription.
4.3You acknowledge and agree that:
(a)to maintain your subscription, payment to us will be made automatically on a monthly payment date, from the credit card that you have provided to us;
(b)if we are unable to take payment from your credit card, we will attempt to contact you via email as soon as we become aware of the payment failure. Until payment is confirmed, your Account will be locked and you will not be able to access or use our Software.
4.4If payment is not made within 30 days of the last payment date, any of the User’s data on the Account will be deleted and not recoverable.
4.5If you make changes to your subscription by adding or reducing the number of users to your Account, this can be activated immediately, and payment amounts will be as follows:
(a)if you add users, the Subscription Fee will increase accordingly (Increased Fee) and you will be billed at the Increased Fee from the next billing date;
(b)if you reduce users, the Subscription Fee will decrease accordingly (Decreased Fee), but the Decreased Fee will not take effect until the following anniversary of the next monthly billing date.
5.1To terminate an Account, the User must do so manually on the Site.
5.2The User’s Account will be terminated at the end of the billing cycle, and automatic monthly payments will cease at the end of the month that Digi Clip is notified of the User’s intention to terminate.
5.3It is the User’s responsibility to retrieve all necessary data from their Account at Digi Clip prior to termination.
5.4We may terminate the Terms immediately, in our sole discretion, if:
(a)you breach any of these Terms and do not remedy the breach within 5 days after receiving notice of the breach if the breach is capable of being remedied;
(b)if we reasonably suspect that you are attempting to reverse engineer the Software that is provided to you;
(c)we consider that a request for a License is in appropriate, improper or unlawful;
(d)if you fail to provide us with clear or timely instructions to enable us to provide you with a License;
(e)we consider that our working relationship has broken down including a loss of confidence and trust; or
(f)for any other reason outside our control which has the effect of compromising our ability to provide you with the required Software or License within a required timeframe.
5.5On completion of the Services, we will retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
6.1The User warrants that all information provided to Digi Clip is true, accurate and complete.
6.2You acknowledge and agree that:
(a)you are authorised to use the Software and to access any information or data that you input (Data) into the Software, including any Data which has been inputted into the Software by any person you have authorised to do so;
(b)the Software must only be used for your own lawful internal business purposes, in accordance with these Terms;
(c)all usernames and passwords required to access the Software are kept secure and confidential;
(d)if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Digi Clip of such activity;
(e)the Software operates within the User’s computing or smart device system (End User System);
(f)the reliability of the Software is dependent upon the User’s configuration and implementation of the Software; and
(g)it is the responsibility of the User to determine that the Software meets the needs of the User and their business, and is suitable for the purposes for which the Software is used.
6.3You may use the Software on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to you.
6.4Digi Clip has no responsibility to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person or entity other than you. If you use the Software on behalf of or for the benefit of anyone other than yourself, you agree that:
(a)you are responsible for ensuring that you have the right to do so;
(b)you are responsible for authorising any person who is given access to your Data, and you agree that Digi Clip has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
(c)you will indemnity Digi Clip against any claims or loss relating to Digi Clip’s refusal to provide any persons with access to your Data in accordance with these Terms and Digi Clip making Data available to any person with authorisation from you.
6.5The use of the Software is at the User’s own risk.
6.6You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Software, the Site and the App comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
6.7Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Software.
7.1You acknowledge and agree that you will not:
(a)attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
(b)attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;
(c)attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(d)distribute, encumber, sell, rent, lease,
or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);
(e)remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;
(f)use the Software in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(g)take any action that interferes, in any manner, with Digi Clip’s rights with respect to the Software;
(h)attempt to undermine the security or integrity of Digi Clip’s computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;
(i)use, or misuse, the Software in any way which may impair the functionality of the Software, Site, App, or other systems used to deliver the Software or impair the ability of any other user to use the Software, Site or App;
(j)attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Software is executed; and
(k)transmit, or input into the Software, Site or App, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of
any law (including any content protected by copyright or trade secrets which you do not have the right to use).
7.2In addition, title, ownership rights and intellectual property rights in and to any content displayed on the Site, the App or in the Software, or accessed through the Site, the App or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.
7.3You acknowledge that any breaches of this clause may lead to termination of this Agreement.
8.1Subject to clause 8.2, the User agrees:
(a)not to disclose the Confidential Information to any third party at any time;
(b)to use its best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c)only to use the Confidential Information for the purpose for which it was disclosed by Digi Clip and not for any other purpose; and
(d)to be responsible for and assume liability in relation to all of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
8.2The User’s obligations set out in
1 do not apply to Confidential Information:
(a)that is already in the public domain, except as a result of the actions of the User in breach of any of the Terms of this Agreement;
(b)received from a third party, except where there has been a breach of confidence;
(c)that must be disclosed by law, provided that the Users reveals only so much of the Confidential Information as the User is required by law to disclose and gives sufficient notice to Digi Clip in order to allow Digi Clip to object to, or otherwise prevent, the Confidential Information being disclosed.
8.3This clause 6 will survive termination of this Agreement.
We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the
Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, as set out in our
10.1Title to, and all Intellectual Property rights in the Software, the Site, and the App, and any documentation relating to the Software, remain the property of Digi Clip and its licensors.
10.2In the event that Digi Clip agrees to customise, modify and/or enhance any Software for the User, or to develop programs, software or materials related to such Software, the User may contract with Digi Clip to provide any such services in a separate agreement. If the Parties contract for any such services:
(a)the Parties shall do so via a validly executed agreement; and
(b)all items produced via such customisation, modification and/or enhancement services are software products owned by Digi Clip and all Intellectual Property rights remains with Digi Clip.
10.3Title to and all Intellectual Property rights in any data you input into the Software remain your property. However, your access to the data and continued use of the Software is contingent on monthly payments of your Subscription Fee.
10.4You grant Digi Clip a licence to use, copy, transmit, store, and
your information and data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of Services to you.
10.5It is the responsibility of the User to maintain copies of all data which is inputted into the Software. Digi Clip will endeavour to prevent data loss, including backing up data on the system on a regular basis, however, as the Software operates as a
service, provided through third parties, Digi Clip does not make any guarantees that there will be no loss of data.
10.6If the User enables
applications for use in conjunction with the Software, the User acknowledges that Digi Clip may allow the providers of those
applications to access any inputted data as required for the interoperation of such
applications with the Software. Digi Clip is not responsible for any disclosure, modification or deletion of data resulting from any such access by
11.UPDATES AND SUPPORT
11.1Digi Clip will provide you with updates to the Software (Updates) for the duration of this Agreement.
11.2You acknowledge that Digi Clip has no obligation to provide you with any support for Updates to the Software, as agreed in this Agreement. Digi Clip may, from time to time, issue updated versions of the Software and the Software may automatically connect to Digi Clip or
servers via the Internet to check for available Updates to the Software, and may either (1) automatically electronically update the version of the Software that you are using on your computer or (2) give you the option of downloading it. By installing the Software you hereby agree to automatically request and receive Updates from Digi Clip or
servers. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such Updates.
11.3The Software may contain automatic communications features which relay ceptyrtain
identifiable information to Digi Clip in connection with the operation of the Software. This information may include your Software settings and what version of the Software you are using. Digi Clip may use this information for research purposes including statistical analysis of aggregate customer behaviour.
11.4Digi Clip can provide support to the User. If you require technical support, please contact Digi Clip at firstname.lastname@example.org.
11.5Whilst Digi Clip intends that access to the Software via the Site and the App should be available on a
basis, it is possible that the Site or the App is unavailable to due to maintenance or other development activity.
12.FEEDBACK AND DISPUTE RESOLUTION
12.1Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact any member of our staff.
12.2If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a)The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b)If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of South Australia to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
12.3Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
13.LIMITATION OF LIABILITY AND DISCLAIMERS
13.1Digi Clip and the User agree that Digi Clip’s liability for the Services provided via the Site, the App, and the Software is governed solely by the Australian Consumer Law to the extent applicable, and this Agreement.
13.2Digi Clip has no liability for use of the Software or App in countries other than as specified on the Site.
13.3Our liability is covered our insurance policy, Information Technology Policy, which provides a limit of liability of:
(a)up to $2,000,000 for Professional Indemnity; and
(b)up to $20,000,000 for Public and Products Liability.
13.4We will take steps to maintain our Information Technology Policy after the completion of the use of our Services and termination of this Agreement, for as long as we are required to do so by law.
13.5You acknowledge that whilst Digi Clip will take reasonable steps to ensure that the Software will work for you, Digi Clip gives no guarantees that:
(a)the Software will meet your requirements as the functionality of the Software is dependent upon configuration with the End User System and other components;
(b)the Software will work in each scenario; and
(c)the Software can be executed on every operating system, as it is impossible to test each variant.
13.6The Software uses third party hosting services which are provided without any sort of warranties, and Digi Clip cannot ensure that these libraries are provided free of defect.
13.7Digi Clip does not warrant that use of the Software will be uninterrupted or error free. The operation of the Software is dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Software. Digi Clip accepts no responsibility for any such interference or prevention of your use of the Software.
13.8All risk arising out of the use or performance of the Software remains with you. You understand and agree that the use of the Software, material or data downloaded or otherwise obtained through the use of the Software, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Digi Clip is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Software, any third party software or operating system.
13.9To the maximum extent permitted by applicable law, Digi Clip and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and
of third party intellectual property rights or lack of viruses, for the Software. In no event will Digi Clip or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of this Agreement, the use of or inability to use the Software, even if Digi Clip has been advised of the possibility of such damages.
13.10The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
13.11The User acknowledges that Digi Clip may pursue any available equitable or other remedy against you as a result of a breach by the User of any provision of this Agreement.
13.12Digi Clip or its licensors’ liability for breach of any of its obligations under this Agreement for the Software, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the License to execute the Software. Digi Clip’s total liability to you for all damages in connection with the Software will not exceed the price paid by you under this agreement for the Software. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
13.13The User acknowledges and agrees that Digi Clip will not be liable for any
damages including punitive, aggravated, multiple, exemplary, liquated or any other non- compensatory damages or the consequences of
14.AUSTRALIAN CONSUMER LAW
14.1Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
14.2Nothing in these Terms removes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to consumers is governed solely by the ACL and these Terms. We
exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
14.3Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
14.4If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us
the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.
15.1You will be liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Software and/or License; from or by you, your employees, contractors or agents.
15.2You agree to
with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Software and License including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
15.3The obligations under this clause will survive termination of these Terms.
16.1Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User when requesting a License.
17.RELATIONSHIP OF PARTIES
17.1Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
17.2The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
RIGHTS OF THIRD PARTIES
Any person or entity who is not a party to these Terms has no right to benefit under or to enforce
any of these Terms.
This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part
of its rights and/or obligations under this Agreement without the prior written consent of the other
Parties (such consent not to be unreasonably withheld).
Any purported dealing in breach of this clause is of no effect.
WAIVER OR VARIATION OF RIGHTS
Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to
this Agreement does not operate as a waiver or prevent that Party from exercising that power or
right or any other power or right.
A Party is not liable to any other Party for any loss, cost or expense that may have been caused or
contributed to by the failure, delay, waiver or exercise of a power or right.
POWERS, RIGHTS AND REMEDIES
Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of
a Party under this Agreement are cumulative and are in addition to any other powers, rights and
remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or
otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against
the other Party to this Agreement or any other person.
22.1Neither Party will be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party will be entitled to a reasonable extension of time for the performance of such obligations.
23.CONSENTS AND APPROVALS
23.1Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
24. FURTHER ASSURANCE
24.1 Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.
25.1 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.
26.1 This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.
27. ENTIRE AGREEMENT AND UNDERSTANDING
27.1The date of this Agreement is the date that these Terms are accepted by the Licensee.
27.2In respect of the subject matter of this Agreement:
(a)this Agreement contains the entire understanding between the Parties; and
(b)all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.
28.GOVERNING LAW AND JURISDICTION
28.1This Agreement is governed by the laws of South Australia. Each party irrevocably and unconditionally submits to the
jurisdiction of the courts of South Australia.
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts,
Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
If you have any questions or notices in relation to these Terms, please contact us at:
Safety Tracker Pty Ltd t/a Digi Clip ABN 65 169 314 363
PO Box 1057 Kent Town SA 50670
Last update: 08 March 2017