SHEQSY Terms and Conditions

Last updated: 21 January 2021

1. Formation of SHEQSY Agreement

By clicking “I Agree” as part of the SHEQSY online sign up or renewal process, you are entering into a SHEQSY Supply Agreement with SHEQSY for the SHEQSY System, effective from the date you click “I Agree” (Effective Date) and consisting of these Terms and Conditions (including the the Schedule and the Appendix), and the responses you completed in the online sign up or renewal process (including the Fees options you selected) (Agreement).

The SHEQSY entity you enter into this Agreement with and the laws which govern this Agreement is determined based on where your contracting entity is domiciled. These applicable SHEQSY entities for the domicile locations are set out in the Appendix to this Agreement.

The terms you and your refer to our customer, named as such in the SHEQSY online sign up or renewal process. If you are using the System on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to this Agreement.

Where your personnel use the System, you will remain our customer and you will be responsible for everything your personnel do while they are using the System as if you, our customer, had done those things.

2. Frequently used terms

We use some terms frequently in the Agreement – where they appear, this is what they mean:

Approved Hardware and Software: any hardware supplied by us and any software approved by us for use in conjunction with the System.

Confidential Information : means information which:

(a)             is disclosed to the receiving party in connection with this Agreement at any time;

(b)             is prepared or produced under or in connection with this Agreement at any time;

(c)              relates to the disclosing party’s business, assets or affairs; or

(d)             relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the receiving party receives that information , except information that:

(e)             is , or becomes, publicly available through no act or omission of the receiving party;

(f)              is, at the date of its disclosure by one party to the other, already lawfully in the receiving party’s possession (from another source);

(g)             lawfully becomes available to the receiving party on a non-confidential basis from a third party having no obligation of confidentiality to the disclosing party;

(h)             is independently developed by the receiving party having no knowledge of the Confidential Information; or

(i)              is required to be disclosed in order for the parties to comply with their obligations under this Agreement;

(j)              is authorised to be disclosed by the disclosing party;

(k)             must be disclosed by law or by a regulatory authority, including under subpoena.

Device: a third party device you purchase from SHEQSY as set out in any online sign up or renewal process (if any).

Documentation : any instruction manuals, user guides and other information relating to the System in online or printed form.

Fault : a failure of all or part of the System.

Fees: the Service Fees, the Setup Fee (if any), the Hardware Fee (if any) and any other amounts payable to us under the Agreement.

Force Majeure Event: any cause outside a party’s reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire, epidemic, pandemic, or acts of any governmental authority, but does not include any obligation to pay money.

Hardware Fee : if applicable, the fee payable to us for any Device.

including and includes implies no limitation.

Intellectual Property : copyright, patents, designs, trade marks, trade names, goodwill rights, trade secrets, confidential information, know-how and any other intellectual proprietary right or form of intellectual property.

Intellectual Property Breach: any breach by you (or any of your personnel) of any of our Intellectual Property rights (or any breaches of third-party rights including any Intellectual Property rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

Minimum Term : any minimum term which you select during the SHEQSY online sign up or renewal process.

Moral Rights: has the meaning given in the Copyright Act 1968 (Cth);

Personnel includes officers, employees, contractors and agents.

Software : the SHEQSY real-time workplace health, safety and quality platform software, including all enhancements and modifications, used by us to provide you with the System.

Service Fees : the fees we charge for provision of the System and the Support Services as set out on our website or in any online sign up form or renewal process.

Service Levels: the service levels for Support Services as published on our website, https://www.sheqsy.com .

Setup Fee: if applicable, the setup fee for the System as agreed between us.

Special Terms means the terms applicable to any Device you purchase and any other special terms which are applicable to the System, as set out in the Schedule.

Support Services : the support services we provide to correct Faults in the System or to assist you in operating the System.

System : the SHEQSY real-time workplace health, safety and quality platform, as described on our website, https://www.sheqsy.com , including the Software and the Documentation, and which may include third party services to which we grant you rights of access, including if applicable any third party satellite data service for the use of your purchased Device. A reference in the Agreement to the System includes all or any part of the System. While services related to a Device and provided by SHEQSY will form part of the System, if you purchase any Device from SHEQSY or use any device purchased from a third party this Device will not form part of the System.

Term means:

(a)      the Minimum Term, subject to extension. At the end of the Minimum Term, the Term will automatically extend for additional periods equal to 12 months or the period of the most recently expired Minimum Term, whichever is shorter unless otherwise terminated in accordance this Agreement ; or

(b)      if there is no Minimum Term and you are paying for the System on a monthly or annual basis, the period up to the last day for which you have paid to use the System (Prepaid Term), subject to extension for a further month or year where you make payment in advance for a further month or year; or

(c)       if you are on an unpaid plan, the period up to the date either you or we terminate the Agreement in accordance with its terms.

Terms and Conditions: these terms and conditions and includes the Special Terms.

Third Party Inputs: third parties or any software, goods, hardware and services provided by third parties, customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the System may be contingent on, or impacted by.

3. Supply of System and support

(a)      While you are paying Fees, we give you a non-exclusive, non-transferable licence to access and use the System during the Term, for your own internal business purposes and in accordance with the Agreement .

(b)      As part of the provision of the System during the Term:

(i)        we will provide the Support Services; and

(ii)       you may use the Documentation solely for your internal business purposes.

(c)       You must not and must ensure that any other person (including your personnel) does not use the System in any way that:

(i)        breaches any applicable laws, including privacy laws;

(ii)       breaches or infringes any person’s rights or causes us to breach or infringe any person’s rights;

(iii)     breaches any Intellectual Property rights, whether directly or indirectly, including to (unless authorised under this Agreement or we otherwise provide our prior written consent):

  1.  copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the System or otherwise attempt to discover any part of the source code of the System;
  2.  use any unauthorised, modified version of the System, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the System;
  3.  use the System in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;
  4.  rent the use of the System to any third parties;
  5.  take any action that may compromise or jeopardise our Intellectual Property rights in the System or otherwise;
  6.  remove or deface any confidentiality, copyright or other proprietary notice placed on the System; or
  7.  use the System in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.

(d)      You must not and must ensure that any other person (including your personnel) does not use the System:

(i)        except as permitted by this Agreement;

(ii)       in any way that damages, interferes with or interrupts the supply of the System;

(iii)     to introduce malicious programs into our hardware and software, networks, or other IT systems, including any viruses or malware through any channel;

(iv)      to allow others to access or use your/their account, password or authentication details;

(v)       to allow your personnel to continue to use the System after termination of their employment and/or other relationship with you;

(vi)      to carry out security breaches or disruptions of a network. This includes accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(vii)    to use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the System;

(viii)   to circumvent user authentication or security of any of our networks, accounts or hosts or those of members or suppliers;

(ix)      to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or

(x)       if applicable, send any form of spam, or harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the System in breach of any person’s privacy (such as by way of identity theft or “phishing”).

4. Fees and payment

(a)      We will have no obligation to commence provision of the System or the Support Services until you have paid the Setup Fee (if applicable).

(b)      You agree to pay the Fees for the Term. Fees must be paid in advance and, except as expressly stated in the Agreement, are non-refundable. You may only downgrade from a paid plan to a free plan at the end of the current Term (i.e. the Minimum Term, any automatic extension term or any Prepaid Term). If you downgrade from a paid plan to a free plan before the end of the current Term, you will remain responsible for any Fees which would have been due under the paid plan between the date of downgrade and the end of the current Term for such paid plan. Such Fees must be paid before the downgrade takes effect. If you have paid the Fees for the current Term in full, to the maximum extent permitted by law, an early downgrade will not entitle you to a refund of those Fees (whether in full or in part).

(c)       If we agree to invoice you by email, full payment must be received within thirty (30) days from the invoice date.

(d)      If you dispute any amount we say is payable, you must notify us within 10 days of the date of the relevant invoice and explain in detail why you dispute the amount. If any invoice is disputed in part only, you must pay any undisputed amount in full. You and we will endeavour to resolve any dispute as quickly as possible.

(e)      If you fail to pay, within 7 days of its due date for payment, any amount which is not properly disputed in accordance with clause 4(d), we may, at our absolute discretion and without prejudice to our other rights or remedies:

(i)        downgrade your paid plan to a free plan until those amounts are paid in full, provided we have given you five (5) or more days’ prior notice that we intend to exercise this discretion. You acknowledge and agree that a downgrade will result in a decrease in certain features and functionality in the System, and some of your data, becoming unavailable to you;

(ii)       suspend any services provided under the Agreement, including access to the System or any Support Services and your data;

(f)       If we downgrade you or suspend your access to the System, your obligations to pay Fees incurred up to the date of downgrade or suspension will continue. If you pay all amounts due within 14 days of the date of downgrade or suspension, we will upgrade you back to your paid plan, or reactivate your access to the System, but we may require you to pay an upgrade or reactivation fee first.

(g)      You must indemnify us for our reasonable costs of enforcing the Agreement, including collection costs and legal costs on a solicitor – own client basis.

(h)      All amounts exclude applicable goods and services tax, sales and similar taxes (unless expressly stated otherwise).

(i)        Where you are required to deduct or withhold any amount from the Fees or any other charges by way of withholding tax (or similar), the Fees and/or charges will be deemed to be grossed up by the amount of the required deduction, so that the net amount payable to us will be equal to the Fees and/or charges payable without deduction.

(j)       You agree that, during the Term:

(i)       we may vary the Fees payable under the Agreement at any time by providing written notice to you of such variation. Where we provide this notice, the new Fees will take effect at the end of the current Term (i.e. the Minimum Term, any automatic extension term or any Prepaid Term); and

(ii)       where the System is varied or changed, or the costs of providing the System or related services increases, (Fee Variation Event) and the cause of that Fee Variation Event relates to, or is connected with, an event or circumstance beyond our reasonable control (including increased third party costs) you agree:

  1.  that if the additional costs or expenses are ongoing costs or expenses, we may increase the Fees to reflect such additional costs and/or expenses that we suffer or incur as a result of the Fee Variation Event, with 30 days’ written notice to you. Where we provide this notice, the new Fees will take effect 30 days after the date of the notice; and
  2.  that if the additional costs or expenses are a one-off cost or expense, you will pay us the reasonable additional costs and/or expenses that we suffer or incur as result of the Fee Variation Event, as a debt due and immediately payable .

5. Your obligations

(a)      You must:

(i)        cooperate with us and provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at law, in a timely manner;

(ii)       only use the System in accordance with the Agreement and all applicable laws, regulations, standards and industry codes of conduct;

(iii)     not, and you must ensure that your personnel do not, use the System for any illegal, unlawful or offensive act;

(iv)      comply with our reasonable directions from time to time regarding the use of the System;

(v)       take responsibility for your compliance with all applicable laws, regulations, standards and industry codes of conduct, including all workplace surveillance, tracking and monitoring, privacy and employment laws in relation to your use of the System or any Device in connection with your personnel;

(vi)      indemnify us against any claims, loss or damage (including on a solicitor and client basis and whether incurred by or awarded against us) that we suffer or incur, whether directly or indirectly, as a result of any breach of this clause 5(a).

(b)      The System is not designed for use in life-supporting or mission critical applications. You must indemnify us for any loss, damage, claims and other liabilities suffered by us and arising in whole or in part out of any use that does not comply with this clause 5(b).

(c)       Subject to your agreement (not to be unreasonably withheld), we may identify you as our customer on our website and in any other marketing or promotional material we produce.

(d)      You acknowledge and agree that:

(i)        the System is a secondary tool provided for your convenience;

(ii)       you must not rely solely on the System for compliance;

(iii)     the System does not replace your other workplace health and safety compliance measures, including the need to seek legal advice from a qualified legal professional on your workplace health and safety obligations; and

(iv)      we will have no liability to you in connection with any reliance on the System for compliance purposes.

6. Our obligations

(a)     During the Term, we must:

(i)        provide you with 24/7 access to our web based self service help centre (subject to reasonable downtime for scheduled and emergency maintenance);

(ii)       provide you with the ability to lodge support items via our web based help centre;

(iii)     provide you with updates to the System as they are released;

(iv)      provide the Support Services and in doing so, use our reasonable endeavours to meet the Service Levels.

7. Exclusions

(a)          Support Services do not include (and the warranties in clause 12 do not cover) support for defects in:

(i)            any Device;

(ii)           Third Party Inputs or and other third party software, hardware or services; or

(iii)          the Software or Faults resulting from:

  1.  accident or other external causes;
  2.  misuse or abuse of the System by you or your personnel;
  3.  use of the System otherwise than in accordance with the Documentation;
  4.  use with any hardware or software that is not Approved Hardware and Software; or
  5.  unauthorised attempts to repair, replace, modify or maintain the System by persons other than us or our personnel.

(b)          To the extent permitted by law, the successful resolution of any Fault by the provision of Support Services shall be your sole remedy for any loss or damage suffered by you as a result of that Fault.

(c)          The provision to you of the System does not constitute, and you acknowledge that you have not engaged us to provide professional advice, whether in relation to health and safety or otherwise.

(d)          Any stated times for delivery or provision are estimates only. We will not be liable for any loss, expense, injury, damage or claim resulting from any delay howsoever caused.

8. Third parties

(a)          You agree that the System and any Device may include Third Party Inputs that interface, or interoperate, with the System, or Device including third party software, hardware or services and that the provision of the System may be contingent on, limited to or impacted by.

(b)          You must comply with our instructions and directions, whether written or verbal, in relation to the use of any Third Party Inputs. Where we provide you with any terms and conditions for use of these Third Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.

(c)          In the event any Fault is caused by or contributed to by software licensed to us by a third party, you agree not to make any claim against our licensor. We will use reasonable endeavours to ensure satisfactory resolution of the issue by the licensor, but we do not provide any warranties and have no responsibility or liability for resolution of issues with the licensor (or its products).

(d)          To the extent you require or choose to use any software, hardware and/or services to use and enjoy the System or any Device and such software, hardware and/or services are not required to be provided by us under this Agreement, you are responsible for:

(i)            the purchase of;

(ii)           the requirements of; and

(iii)          the licensing obligations (and compliance with those),

for the third party software, hardware or services.

9. Duress alert

(a)          You agree that the duress alert functionality provided as part of the System ( Duress Alert ), is a secondary tool provided for your convenience. The Duress Alert is not intended to be used as the sole tool in an emergency situation, including in a medical emergency or where there is an immediate threat to health, life or safety. The Duress Alert does not assure that events, including but not limited to check-in, duress, panic and man down have been successfully placed. You are encouraged to and agree whenever possible to use all other safety and medical devices and techniques available to you for the protection of you and your personnel.

(b)          Where the Duress Alert is linked to a security centre, the security centre is operated by a third party security service (Third Party Security Service). To allow the Third Party Security Service to operate the security centre, we must disclose personal information about your personnel who are linked to the Duress Alert to the Third Party Security Service on set-up of the Duress Alert and at the time that the Duress Alert is activated. Where we disclose personal information to the Third Party Security Service, we will do so in accordance with the protections set out in clause 11 (c).

(c)          You acknowledge and agree that the operation of the Duress Alert is reliant on the accuracy of the information linked to it, and the provision of inaccurate or incomplete information by you may affect the use, output and operation of the Duress Alert. You are solely responsible for ensuring that:

(i)            any information you provide to us, or we request from you, for the Duress Alert set up, is complete and accurate and you are authorised to provide this information to us;

(ii)           all information in connection with the Duress Alert is kept up-to-date; and

(iii)          the Duress Alert is tested on set up and on a regular basis, and you acknowledge and agree that you are responsible for coordinating with the Third Party Security Service for the purpose of such tests.

(d)          You acknowledge that there are limitations to the Duress Alert, as set out in clause 12(c), and that in addition to these limitations, the Duress Alert may also be reliant on and we have no responsibility for:

(i)            any hardware you choose to use in connection with the Duress Alert, including any Device;

(ii)           the provision of cellular data services;

(iii)          wireless services or other Internet connectivity services; or

(iv)         the terms under which Service Providers may offer those services.  Service Providers may charge you for SMS, calls, or location services and other fees that we do not control.  You are solely responsible to pay any and all of these fees.

(e)          You acknowledge and agree that the Duress Alert should only be activated in test scenarios coordinated with the Third Party Security Service and in situations of actual or reasonably suspected duress. We reserve the right in our sole discretion, with written notice to you, to suspend, limit, disconnect or terminate the Duress Alert in the event of ongoing abuse.

10. Intellectual Property and confidentiality

(a)      All Intellectual Property rights in all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your personnel before the Effective Date and/or developed by or on behalf of you or your personnel independently of this Agreement are owned by or licensed to you. The Agreement does not transfer any of your Intellectual Property rights to us or any other person.

(b)      Subject only to clause 10(a), we own all Intellectual Property rights, including in all work, models, processes, technologies, strategies, materials, information, documentation and services (including the Documentation, Intellectual Property and System) that we may provide to you under this Agreement, and which may contain material which are owned by or licensed to us, and is protected by Australian and international laws and all improvements to those Intellectual Property rights and all newly created materials and Intellectual Property Rights. The Agreement does not transfer any of our Intellectual Property rights to you or any other person.

(c)       You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use your Intellectual Property rights, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.

(d)      If you or any of your personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

(e)      You must:

(i)        not reproduce, translate, adapt, reverse engineer, vary or modify the System;

(ii)       take, and ensure your personnel take, all reasonable steps to prevent, any unauthorised access to the System and Software and to ensure the non-disclosure and confidentiality of the System and Documentation;

(iii)     not transfer, assign or otherwise deal in the System or your rights under the Agreement;

(iv)      not use or disclose the System other than as reasonably necessary for your legitimate use of the System for your internal business purposes;

(v)       maintain all copyright notices on the System;

(vi)      not, and you must ensure that your personnel do not, disclose any passwords used by you or your personnel to access or use the System;

(vii)    ensure that System passwords created by you or your personnel cannot be easily guessed and are changed regularly and as reasonably requested by us;

(viii)    notify us as soon as you become aware that any person may have unauthorised knowledge, possession or use of the System or any System password.

(f)       In the use of any Intellectual Property rights in connection with this Agreement, you agree that you must not (and you must ensure that your personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred including where you become aware of a claim or potential claim of infringement of third party Intellectual Property rights, you must notify us immediately.

(g)      If you or your personnel send us any feedback or suggestions regarding the System (feedback), you grant us (for yourself and on behalf of your personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use that feedback for any purpose without any obligation or compensation to you or your personnel.

(h)      You and we recognise and acknowledge the confidential nature of each other’s Confidential Information. Each party will at all times keep confidential, treat as privileged, and not directly or indirectly make or allow any copying, disclosure or use to be made, of any of the Confidential Information of the other party, except to the extent:

(i)        required by law or any stock exchange;

(ii)       that the parties otherwise agree in writing;

(iii)     necessary to obtain the benefit of, or to carry out obligations under, the Agreement; including to its personnel, advisers and other consultants on a “need to know” basis provided those persons first agree to observe the confidentiality of the information.

(i)        This clause will survive expiry or termination of the Agreement.

11. Data

(a)      By signing up for, or renewing your access to, and by using, the System you will transmit information (including personal information) to us and our personnel about you and your personnel (data). You represent, warrant and agree:

(i)        that you are responsible for the collection, use, disclosure, storage and other dealings with data in connection with this Agreement;

(ii)       to ensure, at all times,

  1.  the accuracy, reliability, completeness and integrity of the data; and
  2.  that the collection and use of the data is compliant with all laws, including all applicable privacy laws and workplace surveillance, tracking or monitoring laws;

(iii)     that you have provided all required notices (including notice of collection by us/disclosure to us of personal information and our onward disclosure to third parties in connection with the System and any Device) and obtained all necessary rights, releases and permissions to provide or have the data provided to us and for our handling of the data as authorised by you in connection with this Agreement;

(iv)      in relation to any sensitive information, that you have obtained consent from the individual to whom the sensitive information relates, to allow collection by us/disclosure to us of the sensitive information and our onward disclosure to third parties in connection with the System and any Device, or our disclosure and use as otherwise authorised by you in connection with this Agreement;

(v)       that our handling of the data and any personal information, as authorised by you in connection with this Agreement:

  1.  will not cause us to breach or infringe any laws (including privacy laws and those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity; and
  2.  is not inconsistent with the terms of any applicable privacy policies, privacy notices or other relevant documentation; and

(vi)      we aren’t responsible for the content of your data or the way you or your personnel choose to use the System to store or process any data.

(b)      You authorise us:

(i)        and grant us a limited licence to use, copy, modify, store, disclose and communicate your data and information for us to provide and improve, or for you to use, the System;

(ii)       and grant us a limited licence to disclose your data to third parties where you access, use or purchase those third parties’ products or services ( third party products ) in connection with the System, but we will not be responsible for any use, disclosure, modification or deletion of your data that is transmitted to, or accessed or used by, third party products or services;

(iii)     and grant us a limited licence, provided we do not identify any individual, to aggregate your data with other customer data we have (Aggregate Data), and we will own all Intellectual Property rights in Aggregate Data and may use and disclose that Aggregate Data for our own purposes, including compiling, analysing and reporting on statistics and trends, and we may receive payment from third parties for doing so; and

(iv)      if we reasonably believe any data transmitted to us, or used by you on the System, infringes any person’s rights or any law, to require you to remove or delete that data and, if you do not comply with our request within a reasonable time, to remove or delete it ourselves.

(c)      When we store your data, we will take reasonable measures to prevent unauthorised access, use, modification, deletion and disclosure of data by our personnel. Before sharing data with any of our third party service providers, we will take reasonable steps to ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of data and preventing unauthorized access. We are not responsible for your data when it is in your possession or under your control, or when you or your personnel use unencrypted gateways (e.g. via third party messaging clients) to connect to the System.

(d)      We will hold, and only disclose, your data in accordance with the Agreement and applicable laws.

12. Warranties and limitation of liability

(a)      We warrant that:

(ii)           we have the power and authority to provide you with the System on the terms of the Agreement;

(iii)          during the Term the System will materially function in accordance with the Documentation;

(iv)         the System is compatible with Approved Hardware and Software. This warranty only applies where:

  1.  Approved Hardware and Software is used with the System only (and not with any hardware or software that is not Approved Hardware and Software); and
  2.  each component of the Approved Hardware and Software has been installed and/or configured in accordance with our requirements;

(v)          where we host any of your data on our servers, we will maintain those servers in accordance with accepted industry practice (which includes complying with accepted industry practice in relation to security, virus protection, intrusion prevention and back-ups);

(vi)         to the best of our knowledge and belief the Software does not infringe any intellectual property rights of a third party.

(b)      You warrant, represent and agree that:

(i)            you have the legal capacity to enter into a legally binding agreement;

(ii)           there are no legal restrictions preventing you from entering into this Agreement;

(iii)          that you have reviewed and understand the terms of this Agreement and will use the System in accordance with them, our reasonable requests or requirements, and all applicable laws;

(iv)         you will be responsible for the use of any part of the System or Device, and you must ensure that no person uses any part of the System or Device to break any law or infringe any person’s rights (including Intellectual Property rights and privacy rights) or in any way that damages, interferes with or interrupts the supply of the System;

(v)          all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the System and Device;

(vi)         you have not relied on any representations or warranties made by us in relation to the System or Device (including as to whether the System or Device are or will be fit or suitable for your particular purposes) or any Third Party Inputs, unless expressly stipulated in this Agreement;

(vii)       you have not made any representations or warranties to any third parties (including your personnel) that could be construed as being representations or warranties from us in relation to the System or Device or any other matter;

(viii)      the System and any associated programs and files are used at your own risk;

(ix)         the System is provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our System to third parties without our prior written consent; and

(x)          you have all hardware, software and services which are necessary to access and use the System (other than those expressly required to be provided by us under this Agreement).

(c)       You acknowledge that the System:

(i)            is of a complicated and technical nature. It may have minor or inherent defects and it will not operate continuously or be error-free;

(ii)           may be interrupted for scheduled maintenance or for reasons beyond our control. If the System is likely to be interrupted for extended periods, we will use reasonable efforts to provide you with advance notice;

(iii)          depends on the availability and proper performance of third-party systems, such as computer networks, the Internet and cellular networks. These systems can be unpredictable and may from time to time interfere with use of, or limit access to, the System;

(iv)         stores data in a manner that meets or exceeds internationally accepted control objectives and practices for privacy, security and information systems ( best industry standards ). Where we maintain back-ups of data, we will do so in accordance with best industry standards, however you acknowledge that no back-up system is completely fail-safe and we will have no liability to you for any loss, corruption, destruction or alteration of your or anyone else’s data;

(v)          has not been developed to meet your individual requirements and that it is your sole responsibility to ensure that the System meets your requirements and is suitable for your purposes. Except as otherwise provided in the Agreement, your access to and use of the System is on an “as-is” basis and at your own risk,

and the warranties given in clause 12(a) are given subject to the warranties given by you in clause 12(b) and this clause 12(c).

(d)      We may ask you or any of your personnel to test any part of the System (e.g. in “beta” or “pre-release” form) (beta products). If you or your personnel agree to test beta products for us, you agree that they are made available “as is”. We do not provide any warranties, and we will not be liable to you, your personnel or any other person in respect of any beta products.

(e)      Except as expressly set out in the Agreement and to the maximum extent permitted by law, all representations, conditions and warranties (whether express or implied, statutory or otherwise, and including warranties as to the merchantable quality or fitness for any particular purpose of the System or Device) are expressly excluded.

(f)       If you are contracting with the Australian entity, despite anything in clause 12(e) or otherwise in this Agreement, certain legislation, including the Australian Consumer Law in Schedule 1 of the Competition and Consumer Act 2010 (Cth) (ACL), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the System by us to you which cannot be excluded, restricted or modified ( Statutory Rights ). Nothing in these Terms purports to exclude your Statutory Rights as a consumer under the ACL.

(g)      If you are contracting with the New Zealand entity, despite anything in clause 11(e) or otherwise in this Agreement, the System and Support Services are supplied and acquired in trade in terms of section 2 and 43 of the Consumer Guarantees Act 1993 (CGA), and the parties agree to contract out of the provisions of the CGA under section 43(2)(c) of the CGA.

(h)     Despite anything to the contrary, to the maximum extent permitted by law:

(i)        we will not be liable (whether liability arises in statute, contract , tort (including negligence), equity, indemnity or otherwise) to you (or any other person) for any consequential loss, indirect loss or damage, or real or anticipated loss of profits, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation or loss of use and/or loss or corruption of data (whether that data is held on our servers, a Device or on any third party servers) suffered by you;

(ii)       any liability we have to you arising from or in connection with this Agreement will not exceed, in aggregate, the total amount of Fees actually paid by you to us under the Agreement in the twelve months prior to the time the liability first arises; and

(iii)     a party’s liability for any liability under this Agreement (including as part of any indemnity) will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party (or any of its personnel), including any failure to mitigate that liability.

(i)        You must indemnify us against any loss, damage, liability or expense (including all legal costs and expenses on a solicitor and own client basis) incurred by us and arising out of any claim, suit, action or proceeding (claim) brought against us by a third party to the extent that the claim arises out of the use by you or your personnel of the System or any Device in breach of this Agreement.

(j)        This clause will survive expiry or termination of this Agreement.

13. Exclusions to liability

(a)      Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any liability, caused or contributed to by, arising from or connected with:

(i)        loss of, or damage to, any property or any injury to or loss to any person;

(ii)       your computing environment, including all hardware, software, information technology, networks telecommunications and other IT systems;

(iii)     you, your or your personnel’s acts or omissions;

(iv)      any claim by your personnel;

(v)       any use or application of the System by a person or entity other than you, or other than as reasonably contemplated by this Agreement;

(vi)      any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in your computing environment or data);

(vii)    the System being unavailable, or any delay in us providing the System or a Device to you, for whatever reason;

(viii)   any work, services, goods, materials or items which do not form part of the System (as expressed in this Agreement), or which have not been provided by us; and/or

(ix)      any Third-Party Inputs.

(b)      This clause will survive termination or expiry of this Agreement.

14. Term and termination

(a)      The Agreement commences from the date we first provide you with access to the System, and continues for the Term unless terminated in accordance with its terms.

(b)     Either you or we can give each other written notice at least thirty (30) days before the expiry of the current Term (i.e. the Minimum Term, any automatic extension term or a Prepaid Term) that the Agreement will terminate at the expiry of that current Term and the Agreement will terminate at the expiry of that current Term or the Term in which the notice ends (whichever is later).

(c)      We may terminate the Agreement by written notice to you with immediate effect if:

(i)        you breach any material obligation owed to us that cannot be remedied; or

(ii)       you are otherwise in breach of any obligation owed to us, including the payment of any monies due to us, and you do not remedy the breach within 14 days after receiving a written notice requiring the breach to be remedied;

(iii)     you become insolvent, bankrupt, commit an act of bankruptcy, are placed in liquidation or a similar event occurs;

(iv)      we are prevented from performing the Agreement due to a Force Majeure Event lasting longer than 60 days; or

(v)       you are unable to pay your debts as they fall due.

(d)      You may terminate the Agreement by written notice to us with immediate effect:

(i)        if we issue you a notice that we are making a material modification to the Agreement under clause 16(b) and you can demonstrate that the modification has a material adverse impact on you;

(ii)       if we are in breach of any material obligation owed to you that cannot be remedied; or

(iii)      if we are otherwise in breach of any obligation owed to you and do not remedy the breach within 28 days after receiving a written notice requiring the breach to be remedied; or

(iv)      we are unable to pay our debts as they fall due.

(e)      You may terminate the Agreement for convenience at any time before the expiry of the Minimum Term, provided you pay us an early termination fee equal to 90% of the Fees that would have been payable, up to the expiry of the Minimum Term, but for your early termination.

(f)       If you are on an unpaid plan, either you or we may terminate the Agreement at any time with written notice to the other party.

(g)      On any termination of the Agreement for any reason:

(i)        you will remain liable for payment of any charges accrued before termination or which would have been payable up to the expiry of the current Term but for your early termination (including if they have not yet been invoiced to you);

(ii)       to the maximum extent permitted by law, Fees paid are not refundable and there will be no refunds or credits for any unused part of a plan or the System;

(iii)     we will cease providing you with access to the System and the Support Services;

(iv)      you must immediately cease to use the System the Documentation and return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property);

(v)       we will be entitled to anonymise or permanently delete all your data without liability to you.

(h)      Termination of this Agreement will not affect any rights or liabilities that a party has accrued under it.

(i)        This clause will survive expiry or termination of this Agreement.

15. Disputes

(a)      A party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute.

(b)      If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties.

(c)       If the parties cannot agree how to resolve the Dispute at mediation, either party may refer the Dispute to arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) rules. Once a Dispute has been referred to the ACICA, the parties agree to be bound by the decision of the ACICA. The seat of arbitration shall be Melbourne, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.

(d)      Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

(e)      This clause will survive expiry or termination of this Agreement.

16. General

(a)      The Agreement constitutes the entire agreement between the parties for the supply of the System.

(b)      We may modify this Agreement from time to time by updating the Terms and Conditions on the website. If we make any material modification we will provide you with prior notice, either via email or as a notification within the System. The modified agreement will come into effect on the earlier of the date you accept the modified agreement and 30 days after we notify you of the modification. If you can demonstrate that the modification has a material adverse impact on you, within 30 days after we notify you of the modification you may terminate this Agreement in accordance with clause 14(d)(i). No modification, alteration, or addition to the Agreement by you will be binding on us unless we accept it in writing.

(c)       You agree to comply with all applicable export control laws and regulations and not to export or re-export any component of the System or technical data received other than in compliance with the applicable export control laws and regulations.

(d)      If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

(e)      If we waive any default or breach of the Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.

(f)       You may not assign or transfer your rights and obligations under the Agreement without our prior written consent (which shall not be unreasonably withheld or delayed).

(g)      We may and you irrevocably and unconditionally consent to us assigning or transferring our rights and/or obligations under this Agreement upon written notice to you. To the extent that further things are required for such assignment or transfer to be effective, you agree to do all things necessary or desirable to assure such transfer is effective.

(h)      This Agreement is for the benefit of and enforceable by our successors and assigns and shall bind your heirs, legatees, devises, administrators, executors, successors and permitted assigns.

(i)        A party will not be liable for any delay or failure in the performance of its obligations under the Agreement if such delay or failure is due to a Force Majeure Event.

(j)        Any notice given under the Agreement must be in writing and delivered to the relevant party by email. Notices are to be delivered to us at notices@sheqsy.com unless such address is updated in accordance with this clause. Notices are to be delivered to you at the email address entered by you in the online sign up process unless such address is updated in accordance with this clause. Either party may update its email address for notice at any time by providing notice to the other party of the change. Any notice sent by email will be deemed to have been served when:

(i)        the sender receives an automated message confirming delivery; or

(ii)       30 minutes after the time sent (as recorded on the device from which the sender sent the email),

whichever happens first, but if:

(iii)      the delivery or receipt is on a day which is not a business day (based on recipient’s location) or is after 5.00 pm (based on the recipient’s time) it is deemed to be received at 9.00 am on the following business day; or

(iv)      the sender receives an automated message that the email has not been delivered, the notice is not deemed to have been served and must be resent.

(k)      This clause will survive expiry or termination of this Agreement.

 

SCHEDULE

Special Terms

Application

The following special terms apply to Devices purchased from SHEQSY. These are in addition to, and do not affect the operation of, the above terms and conditions.

Purchase terms

If you purchase a Device from SHEQSY, as set out in any online sign up or renewal process, SHEQSY will use reasonable endeavours to deliver the Device to you in a timely manner and to the delivery location nominated by you in the online sign up or renewal process. You agree to pay the Hardware Fee and for all delivery costs associated with such delivery in advance of our dispatch of the Device. Title in the Device will pass to you on the date that you pay the Hardware Fee in full in accordance with the Agreement. Risk in the Device will pass to you when SHEQSY has delivered the Device to the delivery location nominated by you in the online sign up or renewal process.

 

Types of Devices

There are two core types of Devices available for purchase from SHEQSY. These are as follows:

(a)      the Bluetooth Device which connects to the SHEQSY Device mobile application and operates via Bluetooth; and

(b)      the Satellite Device which connects to the SHEQSY web dashboard via a satellite network.

The Bluetooth Device and the Satellite Device are each manufactured by third parties and SHEQSY may offer for sale a range of brands but each Device will fall into either the Bluetooth Device or Satellite Device category. You may also bring your own device for use with the System. If you bring your own device, the purchase terms and any warranty offered will not apply to such device.

Terms for using a Bluetooth Device

Before using your Bluetooth Device:

(a)      you need to download the SHEQSY Device application by running a search for SHEQSY at: Google Play Store ( https://play.google.com/store ) for Android phones or App Store ( www.apple.com/itunes ) for iPhone®.  

(b)      you must pair your Bluetooth Device with your smartphone using its Bluetooth functionality via the SHEQSY application > Settings > Other devices.  Follow the instructions in the application set up or in the manual that came with the Bluetooth Device.  After the setup is complete, your Bluetooth Device can alert your smartphone to generate events via the SHEQSY application.  

(c)       It is important to take note of the following:

(i)        A SHEQSY application subscription is required and your smartphone must be connected to a wireless or mobile network;

(ii)       The SHEQSY application must be running at all times. Do not stop or remove the application;

(iii)      Keep Location services and Bluetooth activated/on;

(iv)      Alert recipients must be configured within the SHEQSY web application for SMS, email and 3rd party monitoring alerts to be triggered;

(v)       Perform a test alert once the Bluetooth Device is connected to your smartphone and coordinate with alert recipients to make sure they receive alerts.

(vi)      You must re-launch the SHEQSY application any time your smartphone software is updated.  Make sure to perform the above test after you re-launch the SHEQSY application.

(vii)     To receive audio alerts on your smartphone, make sure your smartphone is not in silent or vibrate mode.

(d)      You agree and acknowledge that the Bluetooth Device:

(i)        Does not call or initiate calls to 000 in Australia, 111 in New Zealand or any other emergency service centre;

(ii)       Does not have a microphone or a speaker and has no voice communication functionality;

(iii)      Does not make or receive phone calls, or directly send SMS messages (it sends a signal to the SHEQSY application to initiate the alert events you have set up in SHEQSY);

(iv)      Does not determine your location and relies on your smartphone’s location services to determine your location, (note that location information are estimates only and that GPS location services does not work indoors);

(v)       Does not work under water;

(vi)      Does not work if your smartphone is out of network range (noting that there may also be service gaps within areas with good network coverage);

(vii)     Does not work if it is too far from your smartphone;

(viii)    Works only when it is connected to and is in close proximity to your smartphone (make sure the red light on the Bluetooth Device is not blinking and the app shows that the Bluetooth Device is connected).  If the connection between the Bluetooth Device and your smartphone is lost, the Bluetooth Device will continue to ping in an attempt to connect to your smartphone.  This activity will drain your battery on the Bluetooth Device and the smartphone;

(ix)      Battery life is an estimate only and depends on how often your Bluetooth Device is activated;

(x)       Has a range that is determined by its surrounding structure which can vary; 

(xi)      Fall detection accuracy depends on the nature and impact of the fall. Tests have shown that fall detection works better if the Device is used with the Clip or the Lanyard. For best results, always press the alert button for 2 to 8 seconds.

(e)      You further acknowledge that the Bluetooth Device does not come with any cellular or wireless service plan, data plan or other Internet connectivity services (Service Provider). You are solely responsible for ensuring that your smartphone is compatible with the Bluetooth Device, is properly functioning, and has access to a Service Provider. Check with your Service Provider for compatibility and mobile data plan availability.

(f)       You acknowledge that:

(i)        the advertised Bluetooth Device range is approximate and can vary significantly based on the Bluetooth Device’s surrounding structure;

(ii)       the Bluetooth Device is compatible only with certain smartphones with Bluetooth 4.0 functionality; and

(iii)     SHEQSY makes no warranty with respect to the operation of the smartphone or its compatibility with the Bluetooth Device.

(g)      You agree that SHEQSY has no responsibility for:

(i)        the provision of cellular data services;

(ii)       wireless services or other Internet connectivity services;

(iii)     the network coverage or network availability for the Bluetooth Device; or

(iv)      the terms under which Service Providers may offer those services.  Service Providers may charge you for SMS, calls, or location services and other fees that SHEQSY does not control.  You are solely responsible to pay any and all of these fees.

(h)      You agree that the Bluetooth Device is not medical equipment and it is not meant to provide you with medical assistance.  As such, you release SHEQSY, its affiliates, directors, agents, and employees from any and all liability associated with the use, functionality or operation of the Bluetooth Device. 

(i)        The Bluetooth Device is manufactured by a third party SHEQSY partner. You acknowledge that you have read and agree to be bound by our partner’s user licence (EULA) and any other terms and conditions for the Bluetooth Device which SHEQSY provides to you.  The EULA can be found at [ https://support.vsnmobil.com/hc/en-us/articles/115000845226 ] . You agree that you will comply with the EULA and any other terms and conditions for the Bluetooth Device which SHEQSY or the third party SHEQSY partner provides to you and that you are liable for any damages and/or loss that SHEQSY incurs as a result of any non-compliance by you.

(j)        You understand that the Bluetooth Device is intended to send an alert to your smartphone using Bluetooth communication to initiate the transmission of SMS messages and/or the placement of phone calls. The Bluetooth Device does not assure that events, including but not limited to check-in, duress, panic and man down have been successfully placed. You are encouraged to and agree whenever practical to use all other safety and medical devices and techniques available to you for your protection.

(k)      SHEQSY reserves the right in its sole discretion to limit, disconnect or terminate your Device’s connection to the System in the event of abuse.

Terms for using a Satellite Device

(a)      You acknowledge that the Satellite Device does not come with any satellite data plan ( Satellite Data Plan ). Before using the Satellite Device, you are solely responsible for ensuring that you have an active Satellite Data Plan. We may offer you a Satellite Data Plan which is provided by a Third Party Input.

(b)      You agree and acknowledge that the Satellite Device:

(i)        does not have a microphone or a speaker and has no voice communication functionality;

(ii)       does not make or receive phone calls;

(iii)      is subject to coverage for your area, which may change from time to time;

(iv)      relies on satellite to be able to transmit messages and it is possible that at some times and some locations, the satellite data will not work or any applicable emergency response centre will not receive your transmission or that your transmission will be delayed;

(v)       is wireless and requires a clear line of sight toward the satellite;

(vi)      is inherently subject to transmission and reception limitations caused by:

  1.  your location, including conditions that obstruct the line of sight between you and the satellite;
  2.  the condition of the satellite and ground stations;
  3.  the condition of your Satellite Device;
  4.  reliance on unrelated third parties, such as telecommunication providers, service providers that operate the links between the satellite ground stations, including satellite antennas and supporting equipment, and the relevant satellites or interconnecting networks; and
  5.  weather conditions, atmospheric conditions, magnetic interference, environmental, and other conditions beyond our or the Third Party Input’s reasonable control.

(b)      You agree that SHEQSY has no responsibility for:

(i)        the provision of satellite data services, unless these are purchased from SHEQSY;

(ii)       the satellite coverage for the Satellite Device; or

(iii)     the terms under which Third Party Inputs may offer a Satellite Data Plan.  Third Party Inputs may charge you for fees that SHEQSY does not control.  You are solely responsible to pay any and all of these fees.

(c)       You agree that the Satellite Device is not medical equipment and it is not meant to provide you with medical assistance.  As such, you release SHEQSY, its affiliates, directors, agents, and employees from any and all liability associated with the use, functionality or operation of the Satellite Device. 

(d)      You have read and agree to be bound by all Third Party Input terms and conditions for the Satellite Device which may include terms and conditions from the Satellite Device manufacturer as well as the Satellite Data Plan provider. Applicable terms and conditions may include (without limitation) the SPOT device terms and conditions located here: https://www.findmespot.com/en-us/terms-conditions and/or the Garmin inReach device terms and conditions located here: http://static.garmin.com/pumac/TC_inReach_Consumer_US.pdf . You agree that you will comply with any applicable terms and conditions applicable to the Satellite Device and/or Satellite Data Plan and that you are liable for any damages and/or loss that SHEQSY incurs as a result of any non-compliance by you.

(e)      You understand that the Satellite Device does not assure that events, including but not limited to check-in, duress, panic and man down have been successfully placed. You are encouraged to and agree whenever practical to use all other safety and medical devices and techniques available to you for your protection.

 

Device warranty

(a)      SHEQSY warrants that the Device will operate in accordance with its specifications for 12 months following the date of purchase (Warranty).

(b)      The benefits given to you under this Warranty are in addition to, and do not limit or derogate, your rights and remedies at law in relation to the Device, including under the Australian Consumer Law within the Competition and Consumer Act 2010 (Cth).

(c)       Consumer guarantees (including under the Australian Consumer Law) typically have no set time limit but generally last for an amount of time that is reasonable to expect, given factors such as the cost and quality of the Device or any representations made. Therefore, your rights under the applicable consumer guarantees may extend beyond the Warranty period.

(d)      Mandatory wording: Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

(e)      To make a claim under this Warranty, you must:

(i)        notify SHEQSY by email as soon as you become aware of the non-compliance of the Device with the specifications (Defect), and in any event, within 14 days of when you become aware of the Defect;

(ii)       if SHEQSY asks you to, return the Device together with all packaging, parts, accessories, documentation and proof of purchase to the contact details set out below;

(iii)     if SHEQSY asks you to, provide evidence of proof of purchase of the Device from SHEQSY; and

(iv)      provide any other information reasonably required by SHEQSY to assess your claim.

(f)      Where you return the Device as part of a Warranty claim under this clause, where SHEQSY finds the Device is covered by this Warranty, SHEQSY will refund the associated and reasonable costs of you returning the Device to SHEQSY, subject to you providing proof of such costs.

(g)      Subject to your satisfaction of the requirements in clause (h), SHEQSY will notify you of SHEQSY’s determination as to whether your claim is valid under the Warranty, and if so, the process in clause (k) below will apply. To the maximum extent permitted by law, any determination SHEQSY makes under this clause will be final and binding.

(h)      Subject to the terms of this Warranty (including you making a valid claim), and without limiting your statutory rights, SHEQSY will use its best endeavours to remedy any Defect in the Device during the Warranty period at its cost. SHEQSY may, at its discretion, elect to:

(i)        repair or replace the Defective part (or all) of the Device; or

(ii)       issue a full or partial refund to you with respect to any amount paid for the Defective part (or all) of the Device,

which, to the maximum extent permitted by law, will be your sole and exclusive remedy in relation to the Defect. Again, this clause does not seek in any way to limit your statutory rights.

(i)        If any materials, parts or features required to facilitate any repair or replacement pursuant to clause (k)(i) are unavailable or no longer in production, or the model of Device is no longer available or in production, SHEQSY will use its best endeavours to use appropriate equivalent materials, parts, features or model.

(j)       To the maximum extent permitted by law, this Warranty does not cover, and SHEQSY will have no liability, and you waive and release SHEQSY from any liability (under this Warranty or otherwise), in relation to any Defect which is caused (or partly caused) or contributed to, by any:

(i)        act or omission, accident, or negligence by you or any third party not engaged by SHEQSY;

(ii)       failure on your part to properly maintain the Device in accordance with any of our instructions or guidelines (including any manual);

(iii)     failure on your part to follow any instructions or guidelines (including any manual) provided by SHEQSY or the manufacturer in relation to the Device;

(iv)      use of the Device otherwise than for any application or use specified by SHEQSY or the manufacturer;

(v)       continued use of the Device (where such use is not reasonable) after any Defect in the Device becomes apparent or would have become apparent to a reasonably prudent person;

(vi)      failure by you to notify SHEQSY of any Defect in the Device within a reasonable period of time after you become aware of or ought to have reasonably become aware of the relevant Defect;

(vii)    reasonable wear and tear to the Device;

(viii)   act of God or force majeure event (including but not limited to war, riot, invasion, act of terrorism, contamination, earthquake, flood, fire, or other natural disaster, or any other event or circumstance beyond SHEQSY or the manufacturer’s reasonable control); or

(ix)      repair, replacement, maintenance or modification of the Device by you or any person other than SHEQSY, the manufacturer or a third party authorised by SHEQSY or the manufacturer.

(k)      SHEQSY will have no liability, and you waive and release SHEQSY from any liability, for any delays (including any costs arising out of any delays) in providing any work or services (including repairs) under this Warranty, or in assessing any claim made by you under or in relation to this Warranty.

(l)        Warranty contact details are as follows:

(i)        Postal Address: Attn: CEO, SHEQSY Pty Ltd ABN 68 618 595 985 , c/- The Cluster, L17, 31 Queen Street, Melbourne, Victoria, 3000, Australia

(ii)       Email: accounts@sheqsy.com

(iii)     Phone number: +61390697400

 

APPENDIX – SHEQSY CONTRACTING ENTITIES

The SHEQSY entity you are contracting with, the law governing the contract and the venue for resolving any disputes depends on where you are domiciled. These details are set out in the table below:

Domicile

SHEQSY Contracting Entity

Governing Law

Venue

Australia and Rest of World

Sheqsy Pty Ltd ABN 68 618 595 985

Victoria, Australia

Victoria, Australia

New Zealand

SHEQSY Limited NZBN 9429045947766

New Zealand

New Zealand

Subject to clause 15 of the Agreement, the Agreement and any Dispute is governed by the applicable Governing Law, each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in the Venue and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

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