SAFE INDUSTRIES AUSTRALIA PTY LTD – TERMS & CONDITIONS

1. PURPOSE OF THESE TERMS AND CONDITIONS

1.1. These Terms and Conditions outline how Safe Industries Australia Pty Ltd (‘SIA’) will provide the Services to the Client.

1.2. In accepting a Proposal for Services, the Client agrees to be bound by these Terms and Conditions.

1.3. These Terms and Conditions supersede any prior agreement, understandings or communications between the Client and SIA.

2. CONCURRENT TERMS AND CONDITIONS

2.1. In addition to these Terms and Conditions, the Client agrees to be bound by the following Terms and Conditions, which are incorporated by reference into these Terms and Conditions:

PlanSafe® Terms & Conditions | Locatrix;

PlanStudio® Terms & Conditions | Locatrix

3. PROPOSAL

3.1. In accepting the Proposal (either in writing or by allowing for work to be carried out by SIA), the Client agrees to pay the fees specified in the Proposal in accordance with the provisions of clause 4 and clause 6 of these Terms and Conditions.

3.2. A Proposal provided by SIA:

a. is valid for a period of 30 days from the date it is issued; and

b. is based on SIA’s rates and costs as at the date of the Proposal.

3.3. Where variations to the Services are requested or required by the Client, SIA may adjust the Proposal accordingly, including SIA’s rates and costs.

4. TERM

4.1. In accepting a Proposal for Services which include a Small Business Platform, the Client acknowledges and agrees that:

a. it is electing to sign-up for an automatically renewing annual subscription;

b. the subscription start date will be the Acceptance Date;

c. the subscription will automatically renew for successive one-year terms from the Acceptance Date unless terminated in accordance with clause 8 (noting SIA will issue a monthly invoice for the annual subscription fee within 14 days of the Acceptance Date); and

d. the Client is responsible for paying the initial set-up fee notified to it by SIA (noting SIA will use reasonable endeavours to issue an invoice for the initial set-up fee within 7 days of the Acceptance Date).

4.2. In accepting a Proposal for Services which include a Large Business Platform, the Client acknowledges and agrees that:

a. it is electing to sign-up for a term specified in the proposal.

b. the start date of the three-year term will be the Acceptance Date

c. SIA will issue either a monthly, quarterly or annual invoice for the agreed term within 14 days of the Acceptance Date; and

5. CLIENT RESPONSIBILITIES

5.1. The Client covenants and agrees to provide all information and materials reasonably required to enable SIA to provide the Services set out the Proposal.

5.2. SIA will not be liable for any loss or damage arising from reliance on or from any inaccuracy or other defect in any information or materials supplied by the Client.

6. PRICE AND PAYMENT

6.1. All fees are to be paid in AUD.

6.2. Invoices are payable within 30 days of the invoice date.

6.3. If payment is more than 30 days overdue, SIA may suspend provision of the Services and charge interest at a rate of 1.5% per month, calculated daily, pro-rata until the payment is settled.

6.4. Payment is to be made by credit card, direct debit, electronic transfer or as otherwise directed by SIA.

6.5. The Client must pay any credit-card surcharges incurred by SIA from time to time if the Client makes any payment to SIA using a credit card.

6.6. All amounts payable in relation to these Terms and Conditions are expressed to be exclusive of GST unless expressly stated otherwise by SIA in writing.

6.7. All amounts payable under or in connection with these Terms and Conditions must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever.

6.8. SIA reserves the right, from time to time, to review and adjust the fees for Services, including to accommodate changes in the Consumer Price Index.

6.9. Any change in fees for Services must be notified to the Client by SIA for it to be effective.

7. EVENT OF DEFAULT

7.1. Upon the occurrence of any Event of Default, SIA, at its sole option, may exercise any or all of the following remedies:

a. demand immediate payment of any money owed by the Client;

b. retain any money paid by the Client;

c. cease further supply of the Services to the Client; or

d. terminate these Terms and Conditions, whereupon SIA shall recover all damages suffered by reason of such termination.

7.2. If SIA takes any action pursuant to this clause 7, it shall have no liability to the Client or anyone claiming through the Client.

7.3. SIA shall be entitled to recover from the Client all legal fees and costs incurred in connection with the enforcement of these Terms and Conditions.

8. TERMINATION

8.1. In relation to Services for Small Business Platforms only, the Client may terminate these Terms and Conditions and supply of the Services at any time by giving 30 days’ written notice to SIA, however the Client acknowledges and agrees that, if notice to terminate is given by the Client part way through the one-year term, it is responsible for payment of the annual subscription fee and is not entitled to a refund or partial refund of the annual subscription fee.

8.2. In relation to Services for Large Business Platforms only, if the Client purports to terminate these Terms and Conditions and the supply of the Services, the Client acknowledges and agrees that it is responsible for complete payment of the fee for the three-year term.

9. WARRANTY AND COVENANT

9.1. To the maximum extent permitted by law, SIA expressly disclaims all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.

9.2. Without limitation to the foregoing, SIA makes no representation, and provides no warranty or guarantee, that:

a. in receiving the Services, the Client will achieve OHS or WHS compliance;

b. the Client will achieve any particular results from the provision of the Services;

c. any particular individuals will perform the Services on behalf of SIA; or

d. the Services will:

I. be error-free; or

II. meet the Client's requirements or expectations.

9.3. The Client covenants and agrees that it is responsible for researching its own industry requirements in respect of OHS/WHS requirements and fulfilling its OHS/WHS compliance obligations.

10. RELEASE AND INDEMNITY

10.1. The Client:

a. releases SIA from any Claims; and

b. agrees to indemnify, keep indemnified, and hold harmless SIA against any and all Claims, liabilities, Loss, damages, costs, and expenses (including but not limited to, solicitor/client legal costs and expenses on a full indemnity basis) arising out of or in connection with the Client’s use of the Services.

10.2. Except to the extent permitted by law, the SIA’s total aggregate liability to the Client for any damages, Loss, Claims, and causes of action whatsoever (including negligence) arising from the use of the Services shall be limited to the fee payable under these Terms and Conditions.

11. ACCESS AND DISCLOSURE OF ACCOUNT INFORMATION

11.1. The Client acknowledges that, at all times, SIA has access to account information provided by the Client (including information and documents, which may be uploaded directly to a Small Business Platform or Large Business Platform by the Client) and that care should be exercised in uploading sensitive or private information.

11.2. The Client acknowledges and agrees that SIA may access, preserve and disclose account information if required to do so by law, or, if in good faith belief such access, preservation or disclosure is reasonably necessary by SIA to:

a. comply with legal process;

b. enforce these Terms and Conditions;

c. respond to requests from the Client; or

d. protect the rights, property or personal safety of SIA, other users of the Services, and the public.

12. INTELLECTUAL PROPERTY

12.1. All intellectual property and proprietary content (including all software, systems, databases and other information owned or used by SIA) is the property of SIA or its licensors (as applicable) and is protected by Australian and international copyright laws.

12.2. The Client acknowledges and undertakes not to reproduce, transmit, republish or prepare derivative works from any of the intellectual property or proprietary content, except as expressly authorised by these Terms and Conditions or with the prior written consent of SIA or other copyright owner (as applicable).

13. CONFIDENTIALITY

13.1. Neither SIA, nor the Client, will disclose to any third party without the prior written consent of the other, any confidential information received from the other party for the purposes of providing or receiving the Services.

13.2. This restriction does not apply to information which is or becomes generally available to the public (other than as a result of a breach of an obligation under this clause) or is required by law to be disclosed.

14. PRIVACY

14.1. The Client agrees to provide SIA with personal information as it is defined in the Privacy Act 1988 (Cth) for the purpose of obtaining credit information in relation to or in connection with the Services.

14.2. SIA will comply with the Privacy Act 1988 (Cth) in relation to any personal information that is obtained from the Client.

15. FORCE MAJEURE

To the maximum extent permitted by law, SIA and its representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of SIA under these Terms and Conditions where such damage or delay is caused by circumstances beyond the reasonable control of SIA and SIA shall be entitled to a reasonable extension of time for the performance of such obligations.

16. CHANGE OF CONTROL

16.1. If a Change of Control Event occurs or is reasonably anticipated to occur, the Client shall promptly provide written notice to SIA.

16.2. If the Client undergoes a Change of Control Event, SIA may terminate these Terms and Conditions upon written notice to the Client. In such case, any outstanding obligations and responsibilities of the parties shall be settled in accordance with these Terms and Conditions.

17. NOTICES

17.1. All notices between SIA and the Client shall be considered to have been sufficiently delivered if mailed in the ordinary course of post and will be deemed delivered three (3) days after mailing to the address provided, or such other address notified to SIA by the Client in writing, or if the Client is a company, the registered office or principal place of business.

17.2. In the case of email, notices shall be deemed to have been delivered the next business day after the successful transmission of an email addressed to the Client at the Clients email address provided or such other address notified to SIA by the Client in writing notwithstanding that any such notice may not be received by the Client.

18. GENERAL

18.1. The Client acknowledges the Client has had an opportunity to obtain independent legal and financial advice in relation to these Terms and Conditions.

18.2. Any changes to these Terms and Conditions by SIA must be notified in writing by SIA to the Client.

18.3. No failure or delay by either party in exercising any right, power, or privilege under these Terms and Conditions shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.

18.4. If any provision of these Terms and Conditions is unenforceable, the provision will be severed, and the remaining provisions will continue to apply.

18.5. SIA may, upon notice in writing to the Client, assign or otherwise transfer the benefit of all or any part of these Terms and Conditions to any other person or entity.

18.6. The Client shall not assign, transfer or delegate any of its rights or obligations under these Terms and Conditions without the prior written consent of SIA (which will not be unreasonably withheld).

18.7. These Terms and Conditions will be governed by the laws of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.

19. DEFINITIONS AND INTERPRETATION

19.1. In these Terms and Conditions, clause and subclause headings are for reference purposes only, and unless the context otherwise requires:

a. reference to a person includes any other entity recognised by law and vice versa;

b. the word including or any other form of that word is not a word of limitation;

c. where a word or phrase is defined its other grammatical forms have a corresponding meaning;

d. any reference to a party to this document includes its successors and permitted assigns; and

e. any reference to any agreement or document includes that agreement or document as amended at any time.

19.2. In these Terms and Conditions the following words have the following meaning:

Acceptance Date means the date on which the Client accepts, in writing, the Proposal, or the date on which SIA commences provision of the Services in accordance with the Proposal (whichever is the earlier).

Administration means any of the following, or any analogous, events:

a. any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Client’s assets, operations or business;

b. any person, or agent of a person, who holds any security interest (whether or not under the PPSA) takes possession of any of the Client's property (including but not limited to seizing the Client's property within the meaning of section 123 of the PPSA); or

c. a court or other authority enforces any judgment or order against the Client for the payment of money or the recovery of any property.

Change of Control Event means a significant corporate event or transaction that results in a change of ownership or control of the Client.

Claim means all actions, suits, claims, demands, investigations and proceedings of any kind, open, pending or threatened, whether mature, unmatured, contingent, known or unknown, at law or in equity, in any forum.

Client means the recipient of Services from SIA and includes all employees, managers, agents, officers and Related Bodies Corporate as that term is defined in the Corporations Act 2001 (Cth).

Document means these Terms and Conditions, any purchase orders or invoices, or any other documentation relating to or in connection with the provision of Services by SIA to the Client.

Event of Default means any of the following, or any analogous, events:

a. the Client fails to pay any amount due and payable under any Document when the amount is due and payable

b. the Client fails to comply with any obligations under any Document

c. any representation, warranty or statement by the Client in connection with any Document is untrue or misleading (whether by omission or otherwise); or

d. the Client becomes subject to Administration.

Large Business Platform means SIA’s ‘large business platform’ for assisting to achieve OHS and WHS compliance.

Loss means any losses, consequential loss, loss of profits, or loss of potential (including, without limitation, any loss of income, revenue, profits, anticipated savings, goodwill, business or contracts).

OHS means occupational health and safety.

Proposal means SIA’s proposal for Services.

Services means all services supplied by SIA to the Client, including the setting up of either a Small Business Platform or Large Business Platform, and includes any advice, instructions or recommendations.

Small Business Platform means SIA’s ‘small business platform’ for assisting to achieve OHS and WHS compliance.

WHS means work health and safety.