epar Customer Agreement

This epar Customer Agreement (the “Agreement”) is between you, epar Pty Limited (ACN 125 454 015) and Environmental Business Solutions Pty Limited (ACN 102 726 205). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means you and your company, and you are binding you and your company to this Agreement.

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.

By clicking on the “I agree” (or similar button) that is presented to you, or by using or accessing epar’s products, you indicate your assent to be bound by this Agreement and the terms outlined in your epar Order.

This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes our Privacy Policy, our Acceptable Use Policy, any Orders, and any other referenced policies and attachments. This Agreement applies to any add-ons or plugins that you purchase from epar.

This Agreement governs epar’s commercially available downloadable software products (“Software”), and any related support or maintenance services provided by epar. Software and Hosted Services, together with related Documentation, are referred to as “Products”. The Products and their permitted use are further described in this Agreement (“Documentation”).

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 EHS and training documents and procedures, protocols contained in the Software.
  • Equipment means the Licensee’s computer equipment or devices and operating system.
  • Fee means the fees specified in items 3 and 6 of the Schedule and/or in the Order Form or the Service Level Agreement.
  • 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.
  • Licensee means the person or company who has paid or will pay the Fees.
  • Licensor means Environmental Business Solutions Pty Limited (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 the signed Order Form 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.
  • Term means the period specified in item 2 of the Schedule or the Order or the Service Level Agreement.
  • 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 LICENSE

Annexure A GRANT OF LICENSE

In return for the Licensee’s payment of the Fees, as specified on the Licensee’s epar Order Form or Service Level Agreement, the Licensor grants to the Licensee, and the Licensee accepts, a non-exclusive, non-transferable license 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 the 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-license, resell or otherwise distribute or make available the Software or the Documentation to any third party.

Fees

The Licensee must have paid the 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 or as detailed in the Order Form or the Service Level Agreement.

This document (and the licenses 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 AND ACCEPTABLE USE

The Licensee may only:

  • use the Software and the Invention and the Documentation for the purpose of creating and managing an EHS management system at the Licensee’s organization;
  • 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.

Here at epar, our goal is to help you and your team do the best work. To do this, we need to keep our products and services running smoothly, quickly, and without distraction. For this to happen, we need help from you, our users. We need you not to misuse or abuse our products and services. To describe exactly what we mean by “misuse” or “abuse” – and help us identify such transgressions and react accordingly – we have created these Acceptable Use Provisions. You will see the word “services” a lot throughout this document. That refers to all websites owned or operated by epar and any related websites, subdomains and pages, as well as any hosted services operated by epar.

Here’s what we won’t allow:

Disruption

  • Compromising the integrity of our systems. This could include probing, scanning, or testing the vulnerability of any system or network that hosts our services.
  • Tampering with, reverse-engineering, or hacking our services, circumventing any security or authentication measures, or attempting to gain unauthorized access to the services, related systems, networks, or data.
  • Modifying, disabling, or compromising the integrity or performance of the services or related systems, network or data.
  • Deciphering any transmissions to or from the servers running the services.
  • Overwhelming or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources (CPUs, memory, disk space, bandwidth, etc.), such as using “robots,” “spiders,” “offline readers,” or other automated systems to sends more request messages to our servers than a human could reasonably send in the same period of time by using a normal browser.
  • Going far beyond the use parameters for any given service as described in its corresponding documentation.
  • Consuming an unreasonable amount of storage for music, videos, pornography, etc., in a way that’s unrelated to the purposes for which the services were designed.

Wrongful activities

  • Misrepresentation of yourself or disguising the origin of any content (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with epar or any third party).
  • Using the services to violate the privacy of others, including publishing or posting other people’s private and confidential information without their express permission, or collecting or gathering other people’s personal information (including account names or information) from our services.
  • Using our services to stalk, harass, or post direct, specific threats of violence against others.
  • Using the services for any illegal purpose, or in violation of any laws (including without limitation data, privacy, and export control laws).
  • Accessing or searching any part of the services by any means other than our publicly supported interfaces (for example, “scraping”).
  • Using meta tags or any other “hidden text” including epar’s or our suppliers’ product names or trademarks.

Inappropriate communications

  • Using the services to generate or send unsolicited communications, advertising, chain letters, or spam.
  • Soliciting our users for commercial purposes, unless expressly permitted by epar.
  • Disparaging epar or our partners, vendors, or affiliates.
  • Promoting or advertising products or services other than your own without appropriate authorization.

Inappropriate content

  • Posting, uploading, sharing, submitting, or otherwise providing content that:
    • Infringes epar’s or a third party’s intellectual property or other rights, including any copyright, trademark, patent, trade secret, moral rights, privacy rights of publicity, or any other intellectual property right or proprietary or contractual right.
    • You don’t have the right to submit.
    • Is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic (including child pornography, which we will remove and report to law enforcement, including the National Center for Missing and Exploited Children), indecent, harassing, hateful.
    • Encourages illegal or tortious conduct or that is otherwise inappropriate.
    • Attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition.
    • Contains viruses, bots, worms, scripting exploits, or other similar materials.
    • Is intended to be inflammatory.
    • Could otherwise cause damage to epar or any third party.

In this agreement in relation to Acceptable Use, the term “content” means:

  1. Any information, data, text, software, code, scripts, music, sound, photos, graphics, videos, messages, tags, interactive features, or other materials that you post, upload, share, submit, or otherwise provide in any manner to the services; and
  2. Any other materials, content, or data you provide to epar or use with the services.

Without affecting any other remedies available to us, epar may permanently or temporarily terminate or suspend a user’s account or access to the services without notice or liability if epar (in its sole discretion) determines that a user has violated this our Acceptable Use terms.

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 unauthorized 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 organizations:
    • this does not mean that the Licensor necessarily endorses or supports these external organizations 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 authorized 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;

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:

  1. the use of any products will be secure, timely, uninterrupted or error-free;
  2. the products will operate in combination with any other hardware, software, system, or data;
  3. the products (or any products, services, information, or other material purchased or obtained by you through the products) will meet your requirements or expectations);
  4. any stored data will be accurate or reliable or that any stored data will not be lost or corrupted;
  5. errors or defects will be corrected; or
  6. 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, 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:

  1. amounts owed by you under any orders,
  2. either party’s express indemnification obligations in this agreement, or
  3. 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 Documentation; 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 Order Form or Service Level Agreement remain valid during the term of the contract only. 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 at any time during your use of epar 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 Essentials Licensees or Connect Lite Licensees is equal to 100% of the Recurring Charges for the remaining contract period, unless otherwise specified in the Order Form or Service Level Agreement; and for all other Licensees, the early exit fee is equal to 80% of the Recurring Charges for the remaining contract period, unless otherwise specified in the Order Form or Service Level Agreement;
  • We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.

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