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 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”).
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.
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:
Reservation of Rights
The Licensee acknowledges that:
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:
The Licensee may only use the Documentation in connection with the Licensee’s operation of the Software and cannot share the Documentation or their password with anyone.
The epar Documentation 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.
Some of the epar documents are made available to you as templates and you may make modifications to those documents to suit your circumstances. However, any modification of any document you make at any time, during the agreement period or after the agreement has terminated 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 to you by epar belongs solely to epar.
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
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:
In this agreement in relation to Acceptable Use, the term “content” means:
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:
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
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 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:
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.
The Licensee acknowledges and agrees that:
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:
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:
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:
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:
Annexure I 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 may terminate this document by written notice effective immediately (or effective from any later date that the Licensee may nominate in writing) if:
Consequences of Expiry or Termination
On expiry or termination of this document:
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.
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.
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
Patent Number: 2004901319 (AU Provisional) | Filed | 16/03/04
Patent Number: 2004202693 (AU Standard) | Filed | 29/06/04
Patent Number: 2007101248 | Granted | 23/03/07
Patent Number: 2015100874 | Granted | 10/07/15
Patent Number: PCT/AU/2004/000876 | Filed | 20/10/04
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).
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.