Statement of Purpose and Definitions
A. A "User" or a "Customer" desires to use and receive access to the Software of the Service Provider ("Services") as may be described in this Agreement. A User is an individual who accesses the Services whether on behalf of a Customer or on their own behalf and includes Customer's employees, visitors to the Work Metrics or IncidentReport.com.au Platform, employers, administrators, employees or former employees who continue to access the Services after leaving the employer that provided them with an Account and third party contractors working for Customers. If you are a User, then "User", "Users" or "you" means you, you must accept these Terms and all Terms apply to you except those that state that they apply to Customers.
B. Work Metrics refers to the company Work Metrics Pty Ltd who create and manage the IncidentReport.com.au platform and among other products it creates and develops. When reference is made to "IncidentReport.com.au platform", "Service Provider", "we" or "us" or "our" in these Customer Terms, it means Work Metrics and its product IncidentReport.com.au. When reference is made to "you" or "your" in these Customer Terms, it means the Customer and any Users engaged by the customer.
C. Work Metrics undertakes to provide access to the Services in accordance with the terms and conditions contained herein.
D. A Customer or "Customers" are organisations or individuals that use or purchase, use or interactive with services from the IncidentReport.com.au Platform, IncidentReport.com.au Platform, IncidentReport.com.au Platform or any other product or service provided by Work Metrics. Customers may include employers, contractors, individuals, volunteers, visitors, researchers or the general public. If you are agreeing to these Terms on behalf of your company then "Customer" or "you" means your company, and you are binding your company to these Terms.
E. Software Platforms, IncidentReport.com.au Platform, IncidentReport.com.au Platform and IncidentReport.com.au Platform refers to the software platforms and websites provided by Work Metrics.
F. Services refers to the software platforms, websites, product offerings, support and provision and implementation of services provided by Work Metrics.
G. Content refers to all courses, training, data, resources, materials and files published by a Customer or an User on the IncidentReport.com.au platform to its users or for its own purposes.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the Parties hereby agree as follows:
1. SERVICES PROVIDED.
Work Metrics agrees to provide the User access to its Software in accordance with the terms of this Agreement.
The Services are a software as a service (SaaS) online induction and management tool, or as may be defined, updated, or amended in the sole discretion of Work Metrics.
User agrees that the Work Metrics possesses the full discretion to determine the method, means, and personnel required to fulfil its Services.
2. REFUSAL OF SERVICE.
At its' discretion, Work Metrics reserves the right to not provide services as requested by the User.
3. RELATIONSHIP OF PARTIES.
It is understood by the parties that Work Metrics (and its assigned personnel) is an independent contractor with respect to User, and not an employee of User.
(b) You agree to not do, attempt to do, or assist any third party to do any of the following:
(i) adapt, alter, copy, create derivative works from, disassemble, display, distribute, download (except with our consent), duplicate, frame, mirror, modify, reduce to human readable form, republish, reverse compile, reverse engineer, or transmit all or any portion of the Services by any means;
in regard to the actions and/or omissions of your personnel, you are responsible for your account with us and for all uses of the account or the Equipment, with or without your knowledge or consent, including but not limited to the actions or omissions of Users the Customer has authorised to use the Services in accordance with these Customer Terms.
(ii) use the Services to build a product, service, or platform that competes with any part of the Services, and you acknowledge that this is a usual covenant within our field of activities and is reasonably necessary to protect our legitimate business interests.
(c) You represent, warrant, and covenant that you are:
(i) aged 18 years or over; or
(ii) aged 16 or 17 years and your parent or legal guardian has read and agreed to these Customer Terms on your behalf and, you will only use the Services with their involvement, supervision, and approval; and
Hardware, Network and Systems
The Customer and/or User is responsible for its own hardware, network and systems
The Customer and/or User shall be solely responsible for:
(a) procuring and maintaining its own network connections and telecommunications links in order to use or access Work Metrics Services; and;
(b) the support and maintenance of any computer hardware operated by the Customer in order to use or access Work Metrics Services; and
(c) all problems, delays, conditions, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the Internet.
4. INTELLECTUAL PROPERTY.
User agrees that we are the sole and absolute owner of the Software, or any related programs or components thereof, except for any open source software components in our Software Platforms which are subject to their own relevant open source licenses and do not form part of the license to our Software Platforms, including but not limited to, rights in patents, copyrights, author's rights, trademarks, trade names, graphic design and design elements, order of operations, algorithms, data structure, organizational features, know-how and trade secrets in the Software and documentation if any, shall remain at all times with Work Metrics. User shall not reverse engineer, decompile or disassemble the Software or any portion thereof, nor otherwise attempt to create or derive the source code (or the underlying ideas, algorithms, graphic designs, order of operations, or any other structures or organization) of the Software.
User agrees that its access to the Software does not authorize its use of the Intellectual Property, or part of it, in any way apart from the limited, non-assignable, and revocable license hereby provided to User in order to use the Software specifically, and only, in order to obtain the benefit of the Services, and also in accordance with this Agreement. Neither the User, nor any person acting on its behalf, shall acquire the Intellectual Property related to the content of the ServicesProgram, unless expressly specified in an appropriate license or other means of mutual agreement in writing between the User and the Work Metrics. All grants not expressly awarded in this document are reserved.
User shall own and shall have all the proprietary rights in any and all information of any nature (including without limitation, all files, input materials, output materials, memoranda, reports, paper, analyses, drawings, specifications, software, data, graphs, charts or other written materials, (collectively, the "Works")) supplied by User and provided to Work Metrics during the course of this Agreement, provided that a worldwide, limited license is hereby granted to Work Metrics over the Works for the purpose of delivering its Services. We hereby agree and acknowledge that User is hereby granted a copyright permission for the purposes of publication over any derivative versions of the Works that have been produced or created by the User as an Admin through, utilizing, or with the aid of the Services. User shall have the right to obtain and hold in its own name when publishing the derivative versions of its Works as described in this paragraph.
5. LIMITATION OF LIABILITY / INDEMNIFICATION.
The User agrees to indemnify and hold Work Metrics and its directors, officers, employees, and its providers harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against us or our assigned personnel that may result from or in connection with this agreement.
User will be solely responsible for its use of the Software, exempting Work Metrics from the consequences arising from such use.
Our Software Platforms are provided on an "as is, as available" basis. To the maximum extent permitted by law, Work Metrics disclaims any and all express or implied warranties, guarantees or representations including but not limited to merchantability, reliability, that our Software Platforms will be uninterrupted or error free and fitness for a particular purpose of our Software Platforms including any content, services and products or that our Software Platforms will meet your requirements. We do not warrant that all features of our Software Platforms will continue to be available, or that particular features will be developed in the future.
Work Metrics does not provide advice: Some parts of our Software Platforms and websites may include general summaries of the law, contract templates or tools to assist with compliance which may not deal with or be applicable to your particular circumstances. We use reasonable efforts to create content and services that comply with applicable laws in a general way, but content and services provided through our Software Platforms does not constitute legal, financial, accounting or taxation advice, and nor should it be relied upon as such by you. You are responsible for compliance with the workplace, tax and other laws that apply to you or your business and you should obtain independent legal and tax advice if required. Except for liability that cannot be excluded or limited by law, we exclude liability for losses, costs, third-party claims, regulatory penalties, expenses or liability arising from or relating to legal, tax, accounting or compliance issues associated with your use of our Software Platforms.
You indemnify us, our Associated Entities and our directors, officers, employees, agents and licensors against all losses and costs (including legal costs), third-party claims, expenses or liability ("Losses") that arise out of or relate to your use of our Software Platforms.
Our total aggregate liability to you under this Agreement and in connection with our Software Platforms (including in connection with any Additional Services) is limited to direct damages up to the total paid by you to us during the 3 month period preceding the first event that gave rise to our liability under these Terms.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
7. USER AND CUSTOMER RESPONSIBILITIES.
User shall not use the Services for any illegal or immoral purpose, including: (a) sending repetitive, unsolicited, or spam messages; (b) collecting the data or information of third parties without their consent (c) using the service to send or transmit illegal, libelous, threatening, obscene, or harmful content; (d) using the service to send viruses or other harmful computer code, files or scripts.
You must your user name and password confidential;
You shall not decompile, reverse engineer disassemble rent or sublicence anything on our Software Platforms;
You shall not use our Software Platforms in a way that impairs its functionality, compromises the security or integrity of our systems or networks or interferes with other people's use of our Software Platforms;
You shall not access any system or account without our permission;
You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of our Software Platforms that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property.
8. ENHANCEMENTS AND MODIFICATIONS.
Work Metrics hereby reserves the modify, update or enhance its Software in its sole discretion.
We may make pre-release or beta versions of products or services available to you. These products and services may be still under development and may be inoperable or incomplete and contain more errors and bugs than our generally available services or products. Because of the nature of these services, you use them at your own risk.
Data Use, Privacy and Confidential Information
This agreement commences upon accessing our Software Platforms, the IncidentReport.com.au website, The IncidentReport.net website or accessing any of the other Work Metrics services, websites or platforms. If you do not agree to this agreement, do not access the services, platforms or websites of Work Metrics.
Licence for Customer Content
For Customers or Users who create and publish content on our platform to their Users or for their own purposes, you grant us a limited, royalty free, non-exclusive, non-transferable right to use Content for the purpose of, and as necessary for, the delivery by us of the Services to your Users.
You represent and warrant that:
(a) you have all licences, rights, consents, and permissions necessary to grant the licence us a license to use Content
(ii) we will not need to obtain any permissions, licenses, consents or rights from, or make any payments to, you or any third party, or have any liability to you or any other party as a result of any use of the Content you have published via our Software Platforms.
We grant you a limited, revocable, non-exclusive, non-transferable licence for the Term to access and use our Software Platforms Content for use with your Users through our Services.
(a) We do not screen content published on our Software Platforms and all use of the Content and Content by you is at your own risk.
(b) We have no responsibility or liability for such use.
10. REPRESENTATIONS AND WARRANTIES.
The User represents and warrants that any data, materials, or works it will supply to Work Metrics and on our Software Platforms will not infringe or violate any third party's rights.
The User shall be solely responsible for compliance with, and shall ensure compliance with, all applicable laws, ordinances, rules and regulations pertaining to its handling of patient data and business in relation to any Services under this Agreement, including without limitation all applicable laws and regulations.
Work Metrics will not be obligated to verify the accuracy and/or adequacy of any such data or materials.
10.1 No warranty or representation
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTY, REPRESENTATION OR GUARANTEE, WHETHER EXPRESS OR IMPLIED:
(a) AS TO THE USEFULNESS OF THE SERVICES OR MATERIALS, NOR ANY OF THE PRODUCTS AND SERVICES PROMOTED ON THE WEBSITE OR APP OR VIA LINKED WEBSITES OR COMMUNICATED TO YOU BY US;
(b) AS TO THE APPROPRIATENESS OF THE COURSES OR MATERIALS PROVIDED TO YOU BY US OR OUR EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES;
(c) AS TO THE QUALITY, ACCURACY, RELIABILITY, CURRENCY, PERFORMANCE, COMPLETENESS OR FITNESS FOR PURPOSE OF ANY PART OF THE SERVICES, THE WEBSITE, THE APP, THE MATERIALS AND OTHER INFORMATION COMMUNICATED TO YOU BY US OR OUR EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES;
(d) THAT THE WEBSITE, THE APP OR THE SERVICES WILL BE UNINTERRUPTED;
(e) AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES; OR
(f) THAT THE WEBSITE, THE APP, THE MATERIALS OR THE FACILITIES THAT MAKE THE WEBSITE, THE APP AND CONTENT AVAILABLE, WILL NOT CAUSE DAMAGE, OR ARE FREE FROM ANY MALICIOUS CODE OR ANY OTHER DEFECTS OR ERRORS.
10.2 Limitation of liability
(a) WE ARE NOT LIABLE (WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE) FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE WEBSITE, THE APP, THE MATERIALS OR THE SERVICES.
(b) OUR LIABILITY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITIONS THAT CANNOT BE EXCLUDED IS RESTRICTED, AT OUR OPTION, TO:
(i) THE RE-SUPPLY OF THE RELEVANT SERVICES;
(ii) THE COST OF THE RE-SUPPLY OF THE RELEVANT SERVICES; OR
(iii) ANY AMOUNT PAID BY YOU TO GO1 IN RESPECT OF THE RELEVANT GOODS OR SERVICES.
(c) EACH PARTY AGREES THAT, UNDER NO CIRCUMSTANCES WILL THE OTHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS CONTRACT FOR:
(i) LOSS OF PROFITS;
(ii) LOSS OF SALES OR BUSINESS;
(iii) LOSS OF AGREEMENTS OR CONTRACTS;
(iv) LOSS OF ANTICIPATED SAVINGS;
(v) LOSS OF OR DAMAGE TO GOODWILL; AND
(vi) ANY INDIRECT OR CONSEQUENTIAL LOSS.
(d) NOTWITHSTANDING THE ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OUR AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE CUSTOMER TERMS OR THE CONTRACT EXCEED THE AMOUNT THAT YOU PAID, IF ANY, TO US FOR ACCESS OR USE OF THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(e) WE DO NOT EXCLUDE ANY RIGHTS OR REMEDIES AVAILABLE TO YOU UNDER ANY APPLICABLE CONSUMER LAWS IN THE APPLICABLE JURISDICTION, WHICH CANNOT BE CONTRACTUALLY EXCLUDED OR RESTRICTED.
(f) NOTHING IN THESE CUSTOMER TERMS LIMITS OR EXCLUDES THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR THE NEGLIGENCE OF A PARTY'S EMPLOYEES, AGENTS OR CONTRACTORS (AS APPLICABLE), FRAUD OR FRAUDULENT MISREPRESENTATION.
You agree to defend, indemnify, and hold harmless Go1 and its affiliates, officers, agents, and employees in respect of any claim, action, damage, loss, liability, cost, charge, expense, alleged breaches, outgoing, or payment (including legal expenses on a full indemnity basis), arising from or relating to:
(a) your use of the Services or any Materials;
(b) a breach of these Customer Terms or the Contract by you; and
(c) your breach of any applicable law.
12. Force majeure
(a) We will not be in breach of this Contract or liable for delay in performing, or failure to perform, any of our obligations under this Contract if such delay or failure results from events, circumstances, or causes beyond our reasonable control (including without limitation fire, flood, acts of God, interruption or failure of utility or telecommunications service, government actions, acts of terrorism, labour disputes or other similar events). In such circumstances, we are entitled to a reasonable extension of time for performing such obligations.
(b) If the period of delay or non-performance continues for four (4) consecutive weeks, either we or you may terminate the Contract by giving seven (7) days' written notice.
13. Links to other websites
(a) The Website or the App may contain links and pointers to other websites operated by third parties or third-party goods or services, which are included solely for your convenience.
(b) Links to third party websites do not constitute endorsement, sponsorship, or approval by us of the content, policies, or practices of those third parties, nor the content available on or for download from those third-party sites.
(c) You agree that by accessing any third party linked website you do so at entirely your own risk.
(d) We are not responsible or liable, directly, or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with, use or reliance on any goods or services available on or through any third-party website.
Work Metrics, its officers, shareholders, directors, employees, agents, affiliates, and third-party providers do not guarantee nor make any representations or warranties with respect to the availability, timeliness, completeness, or accuracy of its services, or any information related to the services. The Services of Work Metrics and on our Software Platforms are thereby provided on an "as is" basis.
Neither does the Work Metrics make any warranties of any kind, whether expressly or impliedly, including but not limited to warranties of fitness for a particular purpose, accuracy, quality, and merchantability.
The Services is not guaranteed to be accessible at any given time - service interruptions may occur due to reasons beyond the control of the Work Metrics, or because the Software has to undergo a maintenance procedure. Work Metrics hereby disclaims any liability relating to the Software's its performance, functionality, accuracy, quality or availability, and reserves the right to stop, modify, or reduce any component of its service, without the need of any prior notice.
User agrees that it will be solely responsible for setting up the required prerequisites in order to ensure the competent execution of the Services, which can include a good Internet and Mobile access, or the appropriate device.
15.1. Non-Disparagement. User agrees that it shall not disparage or encourage others to disparage Work Metrics or its business or any of Work Metrics's past or present employees, contractors, agents, managers, members, products, or services. For purposes of this Agreement, the term "disparage" includes, without limitation, any public comment or statement, and any comment or statement to Work Metrics's Users, employees or to any individual or entity with whom Work Metrics has a business relationship (including, without limitation, any User, employee, contractor, agent, member, current or prospective investor, vendor, supplier, customer, or distributor) that would adversely affect in any manner: (i) the conduct of Work Metrics's business or (ii) the business reputation of Work Metrics or any of the Work Metrics's past or present employees, contractors, agents, managers, members, products, or services.
15.2. Notices. Any notice or communication permitted or required by this Agreement shall be deemed effective when sent through writing, including email.
15.3. Amendment. The Agreement hereunder may be amended only by a written agreement executed by both Parties.
15.4. Waiver. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
15.5. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
15.6. Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart will be deemed an original and will become effective and binding on the Effective Date.
15.7. Assignment and Subcontracting. Without the User's consent, Work Metrics shall be free to subcontract any of its services or obligations under this Agreement, or assign this Agreement or any of its rights or obligations hereunder.
15.8. Governing Law and Dispute Resolution. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Western Australia, and all claims and actions in relation to or arising from this Agreement shall be commenced in the exclusive jurisdiction of the State of Western Australia, without regard to conflict of law provisions.