Terms of service.
1. Thermo Hive Pty ABN 97 637 425 284 (Cleared, “we” or “us”) is a provider of products and services that assist with workplace health and safety compliance.
2. Cleared agrees to supply the Licensee with the Products, subject to the terms of this agreement, the Additional Terms and Conditions and Quote, which together make up the legal agreement between the Licensee and Cleared (Agreement).
Definitions of capitalised words are set out in clause 17 of the Agreement.
1. GRANT OF LICENCE TO USE PRODUCTS
1.1 Grant Subject to the terms of this Agreement and payment by the Licensee of the Fee, Cleared grants to the Licensee a limited, non-exclusive, non-transferrable licence for the Term to use the Products in the Coverage Area for the Permitted Purpose (Licence).
1.2 Renewal Unless otherwise notified by the Licensee in writing within 21 days prior to the expiry of the Term and subject to any amendments to this Agreement required by Cleared, the Term will automatically be renewed for a subsequent Term.
1.3 Replacement Product Cleared may from time to time supply the Licensee with a replacement Product of no lesser quality than the previously supplied Product at its absolute discretion. If requested by Cleared, the Licensee must stop using any previously supplied Product and use the replacement Product from date of delivery from Cleared.
1.4 Acknowledge Cleared source The Licensee must expressly acknowledge Cleared, in a reasonably prominent manner (by display of the Cleared logo or other appropriate attribution), as the source of any Product or Derivative Works that the Licensee use, copy, modify or distribute. Unless otherwise permitted in writing, the Licensee must not remove or cause to be removed any Cleared logo, watermark or other Cleared
1.5. Unavailability Subject to clause 12, if a Product is not available for a period of 3 consecutive days the Term will be extended by the period of unavailability.
2. RESTRICTIONS ON RIGHT TO USE PRODUCTS
2.1 Permitted Purpose The Products must only be used for the Permitted Purpose.
2.2 No right to distribute transfer, resell, assign or sublicense This Licence is granted only to the Licensee. The Licensee must not distribute, transfer, resell, assign, rent, lease or sublicense any Product or any of the Licensee’s rights under this Licence without Cleared’s prior written consent.
2.3 No third party access Unless otherwise provided in this Agreement, the Licensee must not make any Product available in any medium or manner to any third party (including the Licensee’s Related Parties and Subsidiaries).
2.4 Employees and contractors The Licensee may make Products available to any employee or contractor, subject to that person complying with the terms of the Agreement as if they were a party to it. The Licensee is responsible and liable for any person that uses the Licensee’s account access details or uses Products made available to the Licensee in breach of this Agreement.
2.1 Limits on use of Website In the Licensee’s use of the Website and/ or Mobile APP, the Licensee must not (without the prior written consent of Cleared):
(a) provide a link to another URL;
(b) upload content or other information to the Website and/ or Mobile APP other than for use of the Website and/ or Mobile APP as intended under this Agreement;
(c) do anything to damage, interfere or disrupt access to the Website and/ or Mobile APP or do anything which might impair its functionality;
(d) use the Website and/ or Mobile APP in any way to send unsolicited (commercial or otherwise) e-mail or any material for marketing or publicity purposes, or any similar abuse of either;
(e) publish, post, distribute, disseminate or otherwise transmit, defamatory, offensive, infringing, obscene, indecent or other unlawful or objectionable or confidential material or information;
(f) make available, upload or distribute by any means any material or files that contain any viruses, bugs, corrupt data, “trojan horses”, “worms” or any other harmful software;
(g) remove any content or information from the Website and/ or Mobile APP, other than that permitted under the terms of this Licence;
(h) falsify the true ownership of a Product or other material or information made available via the Website and/ or Mobile APP;
(i) obtain or attempt to obtain unauthorised access, through whatever means, to the Website;
(j) use the Website and/ or Mobile APP other than in accordance with the Agreement;
(k) attempt any of the above acts or engage, encourage or permit another person to do any of the above acts; or;
(l) provide or allow access which exceeds the total number of Seats in connection with use of the Product;
2.5 Breach If the Licensee breaches any of clauses 2.1 to 2.5 inclusive, Cleared reserves its rights to terminate the Agreement in accordance with clause 6.1, restrict the Licensee’s access to the Products and/ or take any other steps available to it at law.
3. THE LICENSEE’S ACCESS TO PRODUCTS AND SERVICES
3.1 Access On and from the Commencement Date, the Licensee will be provided with access to the Products.
3.2 Downtime Cleared will use reasonable endeavours to ensure that the Website and/ or Mobile APP remains available but cannot guarantee that this will be the case at all times. Cleared agrees that, wherever possible, all planned maintenance will be done out of normal Operational Hours to ensure optimal uptime of the Website and/ or Mobile APP. As soon as Cleared becomes aware of any Fault, Cleared will use reasonable endeavours to:
(a) allocate such resources as may be necessary to remedy the Fault; and
(b) otherwise take all reasonable steps to remedy the Fault so as to minimise any disruption to the Licensee’s use of the Products.
3.3 Expiry The Licensee’s Licence will expire at the end of the Term unless renewed in accordance with clause 1.2 and may be suspended or terminated in accordance with clause 6.1 if the Licensee is in breach of this Agreement.
3.4 Confidentiality The Licensee must keep the Licence and account access details secure and confidential. Unless otherwise authorised in writing by Cleared, the Licensee must not share the Licence or Cleared account access details with any person or third party other than its employees and contractors who have a strict business need to access such information and who agree to comply with the terms of this Agreement regarding the protection, use and confidentiality of such information, or (b) if required to do so by applicable law, administrative process or court order; provided, however, that Licensee will limit the disclosure to only that information that must be disclosed to comply with such law, process or order and will give Cleared prompt prior notice of such compelled disclosure to the extent legally permitted, so that Cleared may seek to protect such information. The Licensee must notify Cleared immediately if the Licensee becomes aware there is or has been an unauthorised use of the Licensee’s Licence and account access details, or any other security breach relating to the Licensee’s Cleared account.
3.5 Audit During the Term of this Agreement and for two (2) years after termination or expiry of this Agreement, the Licensee shall maintain accurate and complete records regarding its use of the Products. Cleared or persons authorised by Cleared shall have the right once annually, at its own expense, to audit at Licensee’s premises to inspect such records and the Licensee’s computing equipment in order to verify that the Licensee’s use of the Products is in compliance with this Agreement and that the Licensee has paid the applicable licence Fee. The Licensee must provide resources (at its own costs) to furnish information reasonably required to validate that the Licensee is complying with the terms of the Agreement, where requested by Cleared. Audits shall take place during normal business hours and on reasonable prior notice. Without prejudice to any other rights and remedies, where such audit reveals that the amounts due during the applicable period exceed payments actually made by the Licensee by more than five (5) per cent, or that the Licensee has materially failed to maintain accurate records of Product use, the Licensee shall within 30 days of the audit report being issued to Cleared reimburse Cleared for the reasonable costs of the audit and any other charges due based on Cleared’s current list price in connection with the breach (where applicable.
4.1 Fees The Fees payable by the Licensee for the Licence and the use of the Products are specified in the Quote or as otherwise agreed in writing by Cleared and the Licensee.
4.2 Payment The Fees are payable by the Licensee to Cleared by at the beginning of each Term unless otherwise agreed by Cleared.
4.3 No cancellation Subject to clause 4.4, all Fees are non-cancellable and non-refundable except as expressly set out in the Agreement.
4.4 Refund of Fees If the Licensee is not in breach of the Agreement, and Cleared elects to terminate the Agreement under clause 6.3,
Cleared will refund the Licensee any pre-paid fees relating to the portion of Term remaining as at the date of termination.
4.5 GST All Fees exclude GST and other taxes unless expressly stated otherwise
4.6 Late Payment If a scheduled Fee payment is not made in full for any reason, the Licensee gives Cleared permission to charge a Late Payment Fee and/or immediately limit or terminate access to the Products provided under this Licence.
4.7 Acceleration In the event of the Licensee failing to pay Cleared the Fees in full in accordance with the terms of this Agreement, all Fees (whether accrued or not) will become immediately due and payable.
4.8 Amendments Cleared may, at its absolute discretion, increase the Fees at the end of the Term by an amount which reflects up to the current rate of Inflation plus 2%.
5. THE LICENSEE’S WARRANTIES
5.1 Warranty The Licensee warrants that:
(a) any information the Licensee supplies to Cleared in respect of the Agreement is complete and correct. The Licensee must keep Cleared informed of any change to the Licensee’s information provided to Cleared, including any change to the Licensee’s contact details, or the details of a credit card used for payment;
(b) the Licensee will immediately notify Cleared of any usage of any Product outside the Permitted Purpose, and provide any other information reasonably requested by Cleared;
(c) the Licensee has the power to enter into this Agreement and to perform the obligations under it;
(d) that the person signing on behalf of the Licensee is authorised to do so; and
(e) the Licensee has and will comply with all relevant laws relating to the Licensee’s use of the:
(ii) Products; and
6. TERMINATION AND EXPIRY
6.1 Initial Term This Agreement commences on the Commencement Date and continues until expiry of the Term unless terminated earlier in accordance with the terms of this Agreement or renewed under clause 1.3.
6.2 Termination Upon Notice A party may terminate this Agreement immediately upon notice to the other party if the latter is subject to an Insolvency Event.
6.3 Breach In the event of any breach of a term of the Agreement by the Licensee, and if such breach is capable of being rectified, has not been rectified within 5 Business Days of notice to the Licensee, Cleared may, in its absolute discretion, elect to terminate the Agreement by notice to the Licensee.
6.4 Termination by Cleared Regardless of anything else in the Agreement but subject to clause 4.4, Cleared has the right, in its absolute discretion and upon giving the Licensee 10 Business Days’ notice, to terminate the Agreement and the Licence.
6.5 Consequences If the Agreement is terminated under clauses 6.1 or 6.3 or expires under clause 3.5:
(a) the Licence immediately terminates and the Products will no longer be available to the Licensee;
(b) The Licensee must immediately destroy, delete or return to Cleared all Products; and
(c) subject to clause 7.3, the Licensee is not permitted to use any Products for any purpose.
6.6 Costs Cleared reserves all rights following termination of this Agreement, including any rights available to Cleared to collect any outstanding Fees which may be owed by the Licensee. The Licensee will be liable for any costs incurred by Cleared in enforcing its rights following termination of this Agreement.
6.7 Continuing obligations After expiry or termination of the Agreement or a Licence, clauses 1.5, 2, 3.6, 6.4, 7, 8, 9 and 10 will still be binding on the Licensee in relation to Products licensed or obtained during the Term.
7. INTELLECTUAL PROPERTY
7.1 Ownership Unless otherwise indicated, the Website, Mobile Application, the Products and all associated Intellectual Property Rights, data, information and software are owned by Cleared and are protected by copyright, moral rights, trademark and other laws relating to the protection of intellectual property. Cleared reserves all of its Intellectual Property Rights. Except for the limited Licence granted to the Licensee in clause 1.1, no ownership or Intellectual Property Rights in the Website or any Product will pass to the Licensee.
7.2 Trademarks The Cleared trademarks and all associated Intellectual Property Rights are owned by Cleared. Nothing in the Agreement confers upon the Licensee any rights to use or modify any of Cleared’s trademarks, except that Cleared grants the Licensee a royalty free, limited non-exclusive, non-transferrable, non-sublicensable licence to use Cleared trade marks to the extent necessary to comply with the Licensee’s obligations under the Agreement.
7.3 Derivative Works Subject to compliance with all other terms of this Agreement, the Licensee is granted a non-exclusive right to produce and use Derivative Works for a Permitted Purpose. Unless otherwise notified to the Licensee by Cleared, the Licensee may continue using Derivative Works following termination or expiry of this Agreement. The Licensee and Cleared will jointly own all rights in and to any Product embedded in a Derivative Work.
8. THIRD PARTY PROVIDERS
8.1 Cleared engages Third Party Providers in order to provide the Products. The Licensee agrees to comply with all requirements and restrictions that Third Party Providers may impose on directly, or indirectly by imposition on Cleared, in relation to their respective products and/or services, at the time of, or subsequent to, the Agreement. The Licensee acknowledges that provision of the Products is subject to, and dependent upon, adequate delivery of products and services by the Third Party Providers. In accordance with clause 9 of the Agreement, Cleared’s liability is reduced to the extent that loss or damage of any kind is caused, or contributed to, by Third Party Providers. For the Licensee’s convenience, Cleared has set out in this clause 8 links to the terms and conditions of these Third Party Providers with which the Licensee is required to comply. The Licensee further acknowledges that, by entering into the Agreement, the Licensee agrees to comply with the respective terms and conditions of Third Party Providers, which currently include the Third Party Providers set out below. Third Party Providers and their terms of supply may change from time to time during the Term of the Agreement.
(a) Microsoft Azure
Cleared engages Microsoft Azure which enables delivery of the Products. By entering into the Agreement, the Licensee agrees to comply with the Microsoft Azure (https://www.microsoft.com/en-us/servicesagreement/)
9. WARRANTY AND LIABILITY
9.1 Warranty Cleared agrees to use industry standard information gathering tools to ensure data is captured accurately.
9.2 Exclusion of Warranties Subject to clause 9.1, the Website, Mobile application and the Products are provided "as is", and Cleared and its content providers, agents and affiliates exclude, to the fullest extent permitted by applicable law, any warranty, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, any warranties as to the currency or regularity of the updates of the Products, any warranties as to any files the Licensee downloads from the Website being free from virus or harmful code, and all conditions and warranties which would otherwise be implied into this Agreement whether by law, statute or otherwise.
9.3 No Representations While Cleared uses reasonable efforts to ensure the accuracy, correctness and reliability of the Products, Mobile Application and the Website, Cleared makes no representations or warranties as to the accuracy, correctness or reliability of any Product or content contained on the Website or in the Mobile Application. The Products and the Website are subject to errors, omissions, inaccuracies and distortions and Cleared will not be responsible for, or liable for any Claims made by or arising out of, any person or entity seeking to rely on any of the Products or the Website.
9.4 Limit of Liability Cleared’s liability for:
(a) a breach of a warranty under clause 9.1; or
(b) a breach of a warranty which is implied or imposed in relation to this Licence under legislation and cannot be excluded, will be limited to, at Cleared’s option replacing or repairing the Products or supplying Products equivalent to the relevant Products, or paying the cost of replacing or repairing the Products.
9.5 No Liability for Claims To the extent permitted by law, in no event will Cleared, its content providers, agents or affiliates be liable for any Claims of any kind arising from or connected with the use of the Website or the Products, or the unavailability of the same, including but not limited to loss of use, loss of profits or loss of data, and direct, indirect, incidental, punitive and consequential damages and whether in contract, tort (including but not limited to negligence) or otherwise. The Licensee is responsible for the entire cost of all servicing, repair or correction required due to the Licensee’s use of this Website and/ or Mobile APP or the Products. This exclusion applies, without limitation, to any Claims caused by or resulting from reliance by a user on any information obtained from Cleared.
9.6 Aggregate Limit In no event will the aggregate liability of Cleared, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Products exceed any compensation or Fee the Licensee has paid, if any, to Cleared for access to or use of the Products over the 12 month period prior to the alleged default, breach or event giving rise to the liability.
9.7 Third Party Providers The Licensee acknowledges that Cleared relies on the services of Third Party Providers in order to supply the products and services. Without limiting any of the above, for the avoidance of doubt, to the fullest extent permitted by applicable law, Cleared will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by a third party service provider.
9.8 Indemnity The Licensee agrees to indemnify Cleared and its directors, officer, employees, agents and subcontractors, from and against any third party Claims, and must pay on demand all losses, expenses, damages and costs (including reasonable legal fees incurred on a solicitor/client basis) suffered or incurred by Cleared, which arises out of:
(a) any breach by the Licensee of any term of the Agreement; and
(b) the Licensee’s use of Products and the Website, including, without limitation, the Licensee’s use of the Website, to provide a link to another URL or to upload content or other information to the Website.
10. COPYRIGHT COMPLAINTS
10.1 Subject to clause 9, if any third party brings a Claim against the Licensee alleging that the Licensee’s use of the Products in accordance with this Licence infringes their copyright, Cleared will defend the Licensee against the Claim and pay any settlement to which Cleared consents or final court-awarded damages for which the Licensee is liable.
10.2 The Licensee must:
(a) promptly notify Cleared of any such Claim;
(b) not make any admissions in relation to the Claim without Cleared’s prior written consent;
(c) permit Cleared to conduct the defence of the Claim including all negotiations for settlement; and
(d) provide Cleared with any assistance reasonably requested to allow Cleared to defend the Claim.
10.3 To the maximum extent permitted by law, this clause 10 sets out Cleared’ s sole and exclusive liability, and the Licensee’s sole and exclusive remedy, for any third party Claims brought against the Licensee in relation to an infringement of Intellectual Property Rights.
11.2 By entering into this Agreement, the Licensee expressly consent to receiving by email direct marketing communications from Cleared.
11.3 By entering into this Agreement, the Licensee acknowledges that personal information provided by the Licensee in the course of accessing Products (including, without limitation, credit or debit card details provided by the Licensee for the purpose of paying Cleared) may be disclosed to and held by one or more of Cleared ’s third party suppliers and partners (including, without limitation, providers of payment processing services), and used by those third parties in connection with the supply of Products. Cleared will have no liability whatsoever with respect to any personal information held by a third party in connection with the supply of Products.
12. FORCE MAJEURE
12.1 Force Majeure Event If a party is unable to perform or is delayed in performing an obligation under this Agreement (except for any obligation to pay money, including Fees) because of an event beyond that party’s reasonable control (Force Majeure Event):
(a) that obligation is suspended but only so far and for so long as that party is affected by the Force Majeure Event; and
(b) the affected party will not be responsible for any loss or expense suffered or incurred by the other party as a result of, and to the extent that, the affected party is unable to perform or is delayed in performing its obligations under this Agreement because of the Force Majeure Event.
12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party affected by the Force Majeure Event must:
(a) promptly give the other party notice of the Force Majeure Event and an estimate of the non-performance and delay;
(b) take all reasonable steps to overcome the effects of the Force Majeure Event; and
(c) resume compliance as soon as practicable after the Force Majeure Event no longer affects it.
13. CUSTOMER SUPPORT
During the Term the Licensee may contact Cleared at www.Cleared.world with the Licensee’s support queries. However, Cleared cannot guarantee that it will be able to resolve any issue raised by the Licensee. Cleared has no obligation to provide the Licensee with any additional support, but if Cleared agrees to do so Cleared may charge the Licensee reasonable additional fees for the additional support provided to the Licensee by Cleared.
14. MISCELLANEOUS TERMS
14.1 Cleared customer The Licensee agrees that Cleared may identify the Licensee as a Cleared customer in Cleared business materials.
14.2 Additional Terms and Conditions The Additional Terms and Conditions form part of, and should be read in conjunction with, this Agreement.
14.3 Waiver Any waiver of any terms of the Agreement will be effective only if in writing and signed by Cleared. Any rights not expressly granted herein are reserved.
14.4 Severability If one or more of the terms of the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining terms will not be affected.
14.5 Amendments Cleared reserves the right at any time to amend this Agreement and/or to impose new and/or additional terms or conditions on the Licensee’s use of the Products. Such amendments and new and/or additional terms and conditions will be effective immediately upon notice to the Licensee and incorporated into and form part of this Agreement.
14.6 Assignment Other than as expressly specified in this Agreement, the Licensee may not assign or purport to assign its rights or obligations under this Agreement without the prior written consent of Cleared.
14.7 Entire Agreement This Agreement:
(a) comprises the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
(b) supersedes any prior agreement or understanding on anything connected with that subject matter.
14.8 Governing Law This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
In this Agreement:
Additional Terms and Conditions means the additional terms and conditions set out in Schedule 1 (if any).
Business Days means any day other than a Saturday, a Sunday or a recognised public holiday in New South Wales.
Claim means any claim, cost (including legal costs on a solicitor and client basis), damages, debt, expense, tax, liability, loss, obligation, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind however calculated or caused, and whether direct or indirect, consequential, incidental or economic.
Commencement Date occurs on the date Cleared accepts the Licensee signed Quote unless otherwise agreed in writing between Cleared and the Licensee.
Commercial Purpose means:
(a) to distribute, transfer, sell, sub-licence or pass possession of any Products (in whole or in part) for the purpose of direct commercial benefit or gain by the Licensee; or
(b) a purpose which is deemed by Cleared (acting reasonably) to be most appropriately suited to an Enterprise Agreement.
Corporations Act means the Corporations Act 2001 (Cth).
Coverage Area means the area described in the Product Description for which Cleared has available Products.
Derivative Work means any new work created by or for the Licensee that includes or embeds all or part of a Cleared Product.
Enterprise Agreement means licences for Products intended for large corporates.
Fault means any fault, failure, error or defect which prevents the Licensee from accessing the Products, other than where access is prevented due to a planned outage, because of an unforeseeable event beyond Cleared's reasonable control or any conduct or activity undertaken by the Licensee, the Licensee’s employees or agents.
Fees means the fees specified in the Quote payable by the Licensee for the Licence, unless otherwise agreed in writing between Cleared and the Licensee (and includes the Survey Fee, if applicable).
Inflation means the rate of inflation for the current year, to be calculated using the Reserve Bank of Australia’s Inflation Calculator at http://www.rba.gov.au/calculator/ or such other replacement calculation tool from time to time.
Insolvency Event means when (a) a party suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act, (b) any form of voluntary or involuntary insolvency, administration or liquidation of a party, (c) except in the case of Cleared where reconstruction or amalgamation has taken place while solvent, a party enters into, or resolves to enter into, an arrangement or composition, for the benefit of, all of any its creditors, or it, or anyone on its behalf, proposes a reorganisation, moratorium, deed of company arrangement or other administration involving any of them or the winding up or dissolution of that party, (d) a party ceases, or threatens to cease, to carry on business, or (e) anything having a substantially similar effect to any of the events specified to the relevant party under the law of any jurisdiction.
Intellectual Property Rights includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trademarks, patents, rights to protect confidential information and any similar rights.
Late Payment Fee means a fee, as notified by Cleared to the Licensee, corresponding to the costs incurred by Cleared (including, without limitation, administrative and other costs) in recovering any payment not made by the Licensee on the due or scheduled date for payment. Late fees incur interest at the rate of 1.5% per month.
Licence means the licence granted in clause 1.1.
Licensee means the person or entity specified in the Quote.
Cleared means Thermo Hive Pty ABN 97 637 425 284
Operational Hours means 9am to 5pm AEST.
Permitted Purpose means the use of Products by the Licensee in the Licensee’s ordinary business and at all times excludes any:
(a) Commercial Purpose; and
(b) Unlawful Purpose.
Product Description means the specifications applying to the Licensee’s account with Cleared as set out on the “Product Description” section of the Website.
Products means any Cleared products specified in the Quote.
Quote means the document produced after the Licensee places an order for the Product(s).
Related Parties has the meaning given in the Corporations Act.
Subsidiaries has the meaning given in the Corporations Act.
Term means the term specified in the “Contract Term” section of the Quote, commencing on the Commencement Date unless otherwise agreed in writing between Cleared and the Licensee.
Third Party Providers means third party providers of products and services to Cleared.
Unlawful Purpose means any unlawful purpose, including but not limited to stalking, harassing or intimidating any person or engaging in misleading or deceptive conduct.
Website means all webpages and sub-sites available within the Cleared domain www.Cleared.world