Terms of Service

 

1. INTRODUCTION

Welcome to Safe365, an online health and safety self-assessment and continuous improvement service designed especially for small businesses and consumers. These Terms of Use are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.

 

2. APPLICATION OF TERMS

These Terms apply to Your use of the Service from the time that Safe365 provides you with access to the Service. By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.

 

3. CHANGES

The Safe365 Service will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of the Safe365 Service. Safe365 may change these terms at any time by updating them on the Website. Safe365 will notify you that the terms have been updated by email or notification on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.These Terms were last updated on 1 July 2016.

 

4. DEFINITIONS

"Agreement" means these Terms of Use. "Access Fee" means the monthly or annual fee (excluding any taxes) payable by You in accordance with the fee schedule set out on the Website (which Safe365 may change from time to time on notice to You). "Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party. "Data" means any data inputted by You or with Your authority into the Website. "Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered. "Service" means the online health and safety self-assessment and continuous improvement service made available (as may be changed or updated from time to time by Safe365) via the Website. "Website" means the Internet site at the domain www.safe365.co.nz or any other site operated by Safe365. "Safe365" means Safe365 Limited which is a private company registered in New Zealand (NZBN: 9429042230694). "Invited User" means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time. "Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service. "You" means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.

 

5. USE OF SOFTWARE

Safe365 grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws: a) the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has; b) the Subscriber is responsible for all Invited Users’ use of the Service; c) the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be; d) if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.

 

6. YOUR OBLIGATIONS

1. Payment obligations: Monthly Billing An invoice for the Access Fee will be issued on the day You subscribe to Your Safe365 account, and then monthly from the anniversary of the initial registration. All invoices will include the Access Fee for the following one month period of use. Safe365 will continue invoicing You monthly until this Agreement is terminated in accordance with clause 11.

2. Annual Billing An invoice for the Access Fee will be issued on the day You subscribe to Your Safe365 account, and then annually every 12 months from the anniversary of the initial registration. All invoices will include the Access Fee for the following 12 months of use. Safe365 will continue invoicing You annually until this Agreement is terminated in accordance with clause 11. All Safe365 invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment, usually within 10 days of the invoice date.

3. General obligations: You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Safe365 or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept the terms of this Agreement.

4. Access conditions: You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Safe365 of any unauthorised use of Your passwords, or any other breach of security and Safe365 will reset Your password. You must take all other actions that Safe365 reasonably deems necessary to maintain or enhance the security of Safe365's computing systems and networks and Your access to the Services. As a condition of these Terms, when accessing and using the Services, You must: 1. not attempt to undermine the security or integrity of Safe365's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks; 2. not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website; 3. not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted; 4. not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and 5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.

5. Usage Limitations: Use of the Service may be subject to limitations, including but not limited to data storage volumes and the number of calls You are permitted to make against Safe365’s application programming interface. Any such limitations will be advised.

6. Communication Conditions: As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). When You make any communication on the Website, You represent that You are permitted to make such communication. Safe365 is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Safe365 does reserve the right to remove any communication at any time in its sole discretion.

7. Indemnity: You indemnify Safe365 against all claims, costs, damage and loss we suffer as a direct or indirect result of your failure to comply with these Terms or any obligation You may have to Safe365 and the failure of a person who accesses and uses our service by using your user ID. This indemnity includes (but is not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.

 

7. CONFIDENTIALITY AND PRIVACY

Confidentiality: Unless the relevant party has the prior written consent of the other or unless required to do so by law:

1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.

2. Each party's obligations under this clause will survive termination of these Terms.

3. The provisions of clauses 7.1 and 7.2 shall not apply to any information which: 1. is or becomes public knowledge other than by a breach of this clause; 2. is received from a third party who lawfully acquired it and who is under 3. is in the possession of the receiving party without restriction in relation

4. is independently developed without access to the Confidential no obligation restricting its disclosure; to disclosure before the date of receipt from the disclosing party; or Information. Privacy: Safe365 complies with the NZ Privacy Act 1993 and maintains a privacy policy that sets out the parties’ obligations in respect of personal information. Before providing personal information to us, You should read that policy at www.Safe365.co.nz. You will be taken to have accepted that policy when You accept these Terms.

 

8. INTELLECTUAL PROPERTY

General: Safe365 and its licensors own all proprietary and intellectual property rights in the Services, the Website and any documentation relating to the Services remain the property of Safe365 (or its licensors) (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel, and the Underlying Systems). Ownership of Your Data: Title to, and all Intellectual Property Rights in, Your Data remain Your property. However, access to Your Data is contingent on full payment of the Safe365 Access Fee when due (subject to the provisions of the Privacy Act). You grant Safe365 a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to the provision of services to You. Backup of Data: Safe365 adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime but does not make any guarantees that there will be no loss of Data. Safe365 expressly excludes liability for any loss of Data no matter how caused. Third-party Applications and your Data. If You enable third-party applications for use in conjunction with the Services, You acknowledge that Safe365 may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Safe365 shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

 

9. WARRANTIES AND ACKNOWLEDGEMENTS

Authority: You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms. Acknowledgement: You acknowledge that: 1. You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else). 2. Safe365 has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:

1. You are responsible for ensuring that You have the right to do so;

2. You are responsible for authorising any person who is given access to information or Data, and you agree that Safe365 has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

3. You will indemnify Safe365 against any claims or loss relating to: a) Safe365's refusal to provide any person access to Your information or Data in accordance with these Terms, b) Safe365’s making available information or Data to any person with Your authorisation. 3. The provision of, access to, and use of, the Services is on an "as is" basis and at Your own risk.

4. Safe365 does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems usedfor accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Safe365 is not in any way responsible for any such interference or prevention of Your access or use of the Services.

5. As Safe365 is based on self assessment, Safe365 is not Your health and safety consultant or professional risk advisor and use of the Services does not constitute the receipt of professional health and safety advice. If You have any specific health and safety or risk management questions, please contact a certified health and safety or risk management professional.

6. It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.

7. You remain solely responsible for complying with all applicable health and safety, risk management and other laws.

8. It is Your responsibility to check that storage of and access to your Data via the Software, and the Website will comply with laws applicable to you (including any laws requiring you to retain records).

9. No warranties: While care has been taken in collecting and presenting information and advice in accordance with ISO 31000:2009, any advice provided by Safe365 is provided without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Safe365, its related partnerships, corporations or trusts, or the partners, agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on advice provided by Safe365 or for any consequential, special or similar damages, even if advised of the possibility of such damages.

10. Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non- business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.

 

10. LIMITATION OF LIABILITY

To the maximum extent permitted by law, Safe365 excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website. If You suffer loss or damage as a result of Safe365's negligence or failure to comply with these Terms, any claim by You against Safe365 arising from Safe365's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.

 

11.TERMINATION

1. Prepaid Subscriptions Safe365 will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.

2. No-fault termination: These Terms will continue for the period covered by the Access Fee paid or payable under clause 6.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. 3.Breach: If You:

1. breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

2. breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 6.4 or any payment of Access Fees that are more than 30 days overdue); or

3. You or Your business become insolvent, or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, Safe365 may take any or all of the following actions, at its sole discretion:

1.Terminate this Agreement and Your use of the Services and the Website;

2.Suspend for any definite or indefinite period of time, Your use of the Services and the Website;

3.Suspend or terminate access to all or any Data.

4. For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organisations (as defined in clause 3) is not made in full by the relevant due date, Safe365 may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of access to all or any Data.

5. Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will: 1. remain liable for any accrued charges and amounts which become due for payment before or after termination, and 2. immediately cease to use the Services and the Website.

6. Expiry or termination: Clauses 6.1, 6.7, 7, 8, 9, 10, 11 and 13 survive the expiry or termination of these Terms.

 

12.HELP DESK

1. Technical Problems: In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting Safe365. If You still need technical help, please check the support provided online by Safe365 on the Website or failing that email us at support@safe365.co.nz.

2. Service availability: Whilst Safe365 intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason Safe365 has to interrupt the Services for longer periods than Safe365 would normally expect, Safe365 will use reasonable endeavours to publish in advance details of such activity on the Website.

 

13.GENERAL

Entire agreement: These Terms, together with the Safe365 Privacy Policy and the terms of any other notices or instructions provided under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Safe365 relating to the Services and the other matters dealt with in these Terms. Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing. Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause beyond its reasonable control. This clause does not apply to any obligation to pay money. No Assignment: You may not assign or transfer Your subscription to the Services to any other person without Safe365's prior written consent. Governing law and jurisdiction: If the information or Data You are accessing using the Services and the Website is solely that of a person who is a tax resident in New Zealand at the time that You accept these terms then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. If the information or Data You are accessing using the Services and the Website is solely that of a person who is a tax resident in Australia at the time that You accept these terms then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement. In all other situations this Agreement is governed by the laws of New Zealand and You hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties. Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Safe365 must be sent to support@Safe365.co.nz or to any other email address notified by email to You by Safe365. Notices to You will be sent to the email address which You provided when setting up Your access to the Service. Rights of Third Parties: A person who is not a party to these Terms other than Safe365 Limited, its related partnerships, corporations or trusts, or the partners, agents or employees thereof, has no right to benefit under or to enforce any term of these Terms.