Client Agreement

epar Client Agreement

Thank you for purchasing the epar® Software and engaging epar. Permission to use the software and epar products and services is conditional upon you agreeing to the terms set out in this document. The Software and associated products and services transacted through epar are licensed, not sold, to you for use only under the terms of this agreement.

This Document

In this document some words are used that have special meanings. These words start with capital letters in the document and are written Like This. The meanings of these words are outlined below.

  • Documentation means the operating manuals and other written material about the Software that are specified in item 1 of the Schedule, and includes any modified versions, any supplements, and any part of these materials and all copies, and all environment and safety documents and procedures, protocols contained in the system.
  • Equipment means the Licensee’s computer equipment and operating system.
  • Initial Term means the period specified in item 2 of the Schedule.
  • Invention means the invention disclosed and claimed in the Patents, AND the epar Connect and epar MySystem software platforms and compliance management documents that form part of the software and epar products and services.
  • Joining/Membership Fees means the fees specified in items 3 and 6 of the Schedule.
  • Licensee means the person or company who has paid or will pay the Joining/Membership Annual Fees.
  • Licensor means Environmental Business Solutions Pty Ltd Australia (ACN 102 726 205) and epar Pty Limited (ACN 125 454 015).
  • Mandatory Renewal Term means, 4 years after year 1 on the anniversary date of purchase as outlined in Item 6 of the Schedule (or as otherwise stated on signed Membership Agreement or Order Form or Proposal or Service Level Agreement).
  • Media means the tangible property on or in which the Software and the Documentation is delivered to the Licensee.
  • New Releases means software provided primarily to provide an extension, alteration, improvement or additional functionality to the Software.
  • Patents, Trademarks and Copyright means the patent applications, trademark and copyright specified in item 7 of the Schedule, any patent applications claiming priority from those applications, any patents granted on any of those applications and any amendments, extensions, re-issues or re-grants to or of any of them.
  • Schedule means the table appearing at the end of this document.
  • Software means the computer programs briefly specified in item 4 of the Schedule, including any enhancements, modifications, Updates and New Releases of these programs supplied to the Licensee by the Licensor under this document.
  • Updates means system produced amendments or patches primarily to overcome defects in the System.
  • Warranty Period means the period specified in item 5 of the Schedule.

epar LICENCE

Annexure A GRANT OF LICENCE

In return for the Licensee’s payment of the Joining/Membership Fees, as specified on the licensee’s epar Membership Agreement or Order Form or Proposal or Service Level Agreement, the Licensor grants to the Licensee, and the Licensee accepts, a non-exclusive, non-transferable licence under the Patents and the intellectual property rights in the Software and the Documentation to:

  • store, load and use the Software and the Documentation during the Term, on the terms set out in this document; and
  • the right to use, Invention to the extent that the Invention is embodied in the Software and epar products.

Reservation of Rights

The Licensee acknowledges that:

  • it has no rights or interests in the Patents, Software or the Documentation or in any modifications to, or enhancements, updates or new releases of them, other than the rights expressly granted to it by this document; and
  • the Licensee must not use the Software or other epar products as part of a network, or to provide services to another person, and must not sub-licence, resell or otherwise distribute or make available the Software or the Documentation to any third party.

Joining/Membership Fees

The Licensee must have paid the Joining/Membership Fees before it can start using the Software.

Term and Renewal

Subject to item 6 in the Schedule, the rights and obligations under this document begin on the date that you acquired the Software from the Licensor, and continue for the Initial Term and 4 subsequent years.

This document (and the licences granted under it) will be renewed for the additional periods specified in item 6 of the Schedule, unless one party gives the other party written notice of its wish not to renew this document before the then current Term expires.

If this document is not renewed in accordance with item 6 in the Schedule by the Licensee the Licensee must pay the Licensor the full amount of outstanding annual fees as specified in Annexure I of this agreement.

Annexure B PERMITTED USE

The Licensee may only:

  • use the Software and the Invention and the documentation for the purpose of creating and managing an environmental management system and a safety management system at the Licensee’s organisation;
  • use the Software according to the Documentation and any other operating procedures notified in writing to the Licensee by the Licensor.

The Licensee may only use the Documentation in connection with the Licensee’s operation of the Software.

The Licensee is solely responsible for ensuring that its use of epar and storage of information and documentation is compliant with the local laws of the Licensee and/or the Licensee’s Workers; and

The Licensee must ensure that its own privacy policy and other statements about how it handles the information of individuals are accurate in respect of the Employer’s use of epar.

Annexure C RESTRICTIONS

The Licensee must not make any copies of the Software or Documentation. Except to the extent expressly permitted by this document or by applicable law, the Licensee must not, and must not permit others to copy, reproduce, adapt, merge with other software, modify, decompile, reverse-engineer, enhance, disassemble or translate all or any part of the Software or the Documentation.

The Licensee must inform all of its officers, employees, agents and contractors using the Software and the Documentation of the restrictions contained in this document.

Annexure D INSTALLATION

The Licensee must install the Software on its Equipment in accordance with instructions given to the Licensee by the Licensor.

Annexure E SUPPORT, UPDATES & NEW RELEASES

Provided that the Licensee has complied with its obligations under this document, the Licensee is entitled:

  • to make use of the help and support features built into the Software and Documentation; and
  • to receive any Updates and New Releases created by the Licensor.

If Updates or New Releases are provided to the Licensee under clause annexure, this document will apply to the Updates or New Releases in the same way as this document applies to the Software.

Annexure F RISK TO MEDIA

After the Licensee has received the Media, the Licensee must ensure that the Media is not lost, stolen or damaged. The Licensee must not provide any of its epar user names and/or passwords to an unauthorised third party. If the Media is lost, stolen or damaged, it will be the Licensee’s loss.

Annexure G WARRANTIES & EXCLUSIONS

Exclusions

Except as expressly provided in this document, to the extent permitted by applicable law, all warranties, representations, terms and conditions concerning the subject-matter of this document, including the goods and services to be supplied under or in connection with this document, are excluded.

Licensor’s Express Warranties

Subject to clause annexure, the Licensor warrants for the sole benefit of the Licensee that, throughout the Warranty Period:

  • the Media will be free from defects in materials and workmanship under normal use; and
  • the Software, when properly installed and used on the Equipment in accordance with the Documentation, will substantially conform to the Documentation.

The Licensor is not liable for any breach of the warranty in clause annexure to the extent that, in the Licensor’s reasonable opinion, any defect is caused, or contributed to, by:

  • any acts or omissions of the Licensee that are contrary to its obligations under this document; or
  • any factors beyond the reasonable control of the Licensor.

Sole Remedy Under Express Warranties

To the extent permitted by applicable law, the Licensee’s sole remedy for the Licensor’s breach of the warranty in Annexure G is for the Licensor at the Licensor’s expense, to correct, repair or replace (at the Licensor’s election), within a reasonable time, the defective Software or Media until it complies with the warranty in that clause.

Warranty Disclaimers

The Licensee acknowledges and agrees that:

  • the Licensor does not represent or warrant that use of the Software will be uninterrupted or error-free or that the Software or the Invention will provide any functions or satisfy any requirements not expressly stated in the Documentation;
  • the Licensor does not represent or warrant that the information contained in the Software, or derived as a result of using the Software, is accurate or complete;
  • although the Licensor has provided links in the Software to external organisations:
    • this does not mean that the Licensor necessarily endorses or supports these external organisations or the services they provide; and
    • the Licensor does not represent or warrant that the information provided in the external sites which can be accessed through the Software is accurate or complete.

Licensee’s Indemnities

The Licensee must unconditionally indemnify the Licensor against, and must pay the Licensor on demand, the amount of all losses, liabilities and expenses that the Licensor suffers directly or indirectly that are caused or contributed to by any acts or omissions by or on behalf of the Licensee that are contrary to the Licensee’s obligations under this document.

The Licensee agrees and warrants that:

  • It must pay the applicable Fee for each software or service.
  • To the extent permitted by law the Licensee indemnifies and will hold the Licensor harmless against all costs, claims damages and expenses for any:
    • Penalty imposed upon the Licensee;
    • Injury, illness or death caused to an Individual or Third Party;
    • Damage to the property of any Individual or Third Party;
    • Claim of infringement of intellectual property rights made by a Third Party;
    • Claim of breach of confidentiality by any Third Party; As a result of the Licensee use of epar.
    • It shall not store or record any Health Information that it can access through epar unless it is fully compliant with the Privacy Act;
    • It shall not disclose any information about an Individual to any other person or party other than as authorised by the Individual;
    • It shall ensure all personal information it has access to through its use of epar is kept and used in accordance with applicable privacy laws in the jurisdiction;
    • It shall only use epar for its intended purpose as set out in this Agreement;
    • It shall comply with all anti-SPAM legislation in its jurisdiction;
    • It’s licence to use epar, as provided for in the General Conditions, is subject to the payment of all necessary Fees.

Access

On reasonable notice by the Licensor, the Licensee must give the Licensor, and the Licensor’s authorised representatives, reasonable access to the Licensee’s premises and the Equipment to enable the Licensor to check that the Licensee is complying with its obligations under this document.

Reliance on Representations & Warranties

Each party acknowledges that the other party has accepted the terms of this document and agreed to take part in the transactions that this document contemplates in reliance only on the representations and warranties that are made in the document, and not in reliance on any other representations or warranties.

Annexure H LIMITATION OF LIABILITY – Disclaimer & Limitation of Liability

All products are provided “as is,” and epar and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. you may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. epar shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of epar to the maximum extent permitted by law, neither epar nor any of its third party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any products or any content therein or generated therewith, or that:

  • the use of any products will be secure, timely, uninterrupted or error-free;
  • the products will operate in combination with any other hardware, software, system, or data;
  • the products (or any products, services, information, or other material purchased or obtained by you through the products) will meet your requirements or expectations);
  • any stored data will be accurate or reliable or that any stored data will not be lost or corrupted;
  • errors or defects will be corrected; or
  • the products (or any server(s) that make a hosted service available) are free of viruses or other harmful components.

Limitation of Liability

Neither party (nor its suppliers) shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.

Epar’s aggregate liability to the other shall not exceed the amount actually paid by you to us for products and support and maintenance in the 12 months immediately preceding the claim. Notwithstanding anything else in this agreement, our aggregate liability to you in respect of products and services shall be US$20. This (limitation of liability) shall not apply to:

  • amounts owed by you under any orders,
  • either party’s express indemnification obligations in this agreement, or
  • your breach of this agreement.

To the maximum extent permitted by law, we will not be liable to you for any damages whatsoever. The parties agree that the limitations specified in this section (limitation of liability) will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.

These terms and conditions are governed by the laws in force in the State of New South Wales, Australia and each party hereto irrevocably submits to the exclusive jurisdiction of the Courts of that State. Despite our efforts to provide accurate and up-to-date information epar declines any liability for inaccurate, incomplete, or outdated information that may be provided. Where liability cannot be excluded, any liability incurred by epar arising out of the performance or non-performance of the web site, consulting services, including the provision of documentation and the delivery of training whether under the law of contract, tort or otherwise, shall be limited to a maximum of US$20.

Rights & Remedies Under Applicable Legislation

If legislation implies warranties and conditions into this document which cannot be excluded or modified, the Licensor’s liability is limited, to the extent permitted by the applicable legislation, at the Licensor’s option, to:

  • in the case of goods: the replacement or repair of goods; or the supply of equivalent goods; or the payment of the cost of replacing the goods or having the goods repaired or of acquiring equivalent goods; and
  • the case of services: the supply of the services again or the payment of the cost of having the services supplied again to a limit of US $2,000.00.

Annexure I TERMINATION

Termination

The Licensor may terminate this document by written notice effective immediately (or effective from any later date that the Licensor may nominate in writing) if:

  • the Licensee is in breach of any of its obligations under this document and the breach is not rectified within 30 days of the Licensor notifying the Licensee of the breach;
  • the Licensee alters, or damages the Software; or
  • the Licensee is unable to pay its debts or otherwise manage its own affairs.

The Licensee may terminate this document by written notice effective immediately (or effective from any later date that the Licensee may nominate in writing) if:

  • epar is in breach of any obligation under this agreement and the breach cannot be remedied, but, if the breach is capable of remedy, only when epar does not remedy the breach after receiving 30-day notice from the Licensee to do so; or
  • they provide at any time 30-day notice in writing to epar that they wish to terminate the contract and agree to the provisions outlined in the “Consequences of Expiry of Termination” clause of this document.

Consequences of Expiry or Termination

On expiry or termination of this document:

  • web access to the software platform will be cancelled;
  • the Licensee must pay to the Licensor any outstanding amounts properly due to the Licensor under this document;
  • the epar documents you have been provided as part of your epar Client Agreement and Contract with epar delivered you environment and safety compliance and best practice  information during the term of this agreement only. The licence to use the documents began on the day you received your ordered documents and ended in accordance with the terms and the conditions in the contract and this agreement;
  • epar does not provide a warranty or condition (whether express, implied or statutory) that the documents will meet your intended purpose or requirement after the expiration or termination of your contract with us;
  • upon expiration or termination, the documentation provided to you is no longer reviewed or updated or managed by epar. You may decide to edit or amend the documents to render them suitable for your purposes. However, you indemnify epar for any cost, loss, liability, and any damages resulting from your modifications of the documents;
  • any modification of any document you make DOES NOT transfer to you title to any tangible copy, or original, of the documents or any other epar material. All ownership and copyright in the documentation and materials provided you by epar belongs solely to epar;
  • if termination occurs prior to the expiry of the Contract Term, the Licensee must pay epar an early exit fee within 30 days of termination occurring. The parties agree that the early exit fee is not a penalty and represents a genuine pre-estimate of the loss that may be suffered by epar in respect of any termination by the Licensee prior to the expiry of the Contract Period;
  • the early exit fee for Platinum Licensees is equal to 80% of the Recurring Charges for the remaining contract period, unless otherwise specified in the Application Form;
  • the early exit fee for Essentials Licensees is equal to 100% of the Recurring Charges for the remaining contract period, unless otherwise specified in the Application Form;
  • and the Licensor’s rights or remedies that would otherwise have been available under this document or at law will not be affected.

Annexure J AMENDMENT & ASSIGNMENT

This document can only be varied by another document signed by the parties. The Licensee may not dispose of, declare a trust over or otherwise create an interest in its rights under this document.

If the licensee’s business is sold, its contractual obligations under this agreement will be assigned to the purchaser of the business unless agreement is made under the termination provisions of this agreement within 60 days prior to sale.

Annexure K GENERAL

This document is governed by the law in force in New South Wales. A right under this document may only be waived expressly in writing, signed by the party giving the waiver.

This document contains the agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document.

THE SCHEDULE

1. Documentation

As stated on signed Membership Agreement or Order Form or Proposal or Service Level Agreement and includes all environment, safety, quality documents and procedures, protocols contained in the system.

2. Initial Term

12 months and four (4) subsequent years (or as otherwise stated on signed Membership Agreement or Order Form or Proposal or Service Level Agreement).

3. Fees Years 1-5

As shown on the licensee’s Membership Agreement or Order Form or Proposal or Service Level Agreement.

4. Software

  • The “epar® Environmental Management System”.
  • The “epar® Safety Management System”.
  • The “MySystem” online portal
  • The “Connect” online portal

5. Warranty Period

60 months (software only) (or the length of the agreed membership period)

6. Annual Mandatory Contract Renewal Periods

Every 12 months for 4 years after year 1. To be paid within 7 days of the end of the then current Term. Fixed for first year of membership, years 2 to 5 will be subject to an annual “CPI and administration” increase of 2% (or as otherwise stated on signed Membership Agreement or Order Form or Proposal or Service Level Agreement).

7. Patent, Trademark & Copyright Information

Patents in Australia

Title: epar 

Patent Number: 2004901319 (AU Provisional) | Filed | 16/03/04 

Patent Number: 2004202693 (AU Standard) | Filed | 29/06/04 

Title: EBS/epar

Patent Number: 2007101248 | Granted | 23/03/07

Title: Connect 

Patent Number: 2015100874 | Granted | 10/07/15

International Patents

Title: epar 

Patent Number: PCT/AU/2004/000876 | Filed | 20/10/04

Trademark

epar® is a registered trademark of Environmental Business Solutions Pty Ltd (ACN 102 726 205).

epar Connect® is a registered trademark owned by Environmental Business Solutions Pty Ltd (ACN 102 726 205).

Copyright

All documentation in epar® system environment and safety programs are subject to copyright © Environmental Business Solutions Pty Limited (ACN 102 726 205) AND epar Pty Limited (ACN 125 454 015). All rights reserved.

COPYRIGHT © · All rights reserved · epar Group