SafetyMonitor General Terms and Conditions

Welcome to SafetyMonitor, a Cloud-based tool offered by Safety Monitor Limited (“we” or “us”), to assist the customer (“you”) to manage health and safety within your business (“Services”). These general terms and conditions, together with the website terms and conditions (together, the “Terms and Conditions”) are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.

The Terms and Conditions are binding on any use of the Services and apply to you from the time that we provide you with access to the Services.

The Services will evolve over time based on user feedback. These Terms and Conditions are not intended to answer every question or address every issue raised by the use of the Services. We reserve the right to change these Terms and Conditions at any time, effective upon the posting of modified terms and we will make every effort to communicate these changes to you via email or notification via the Website. It is likely the Terms and Conditions will change over time. It is your obligation to ensure that you have read, understood and agree to the most recent Terms and Conditions available on the Website.

By registering to use the Services you acknowledge that you have read and understood these Terms and Conditions and have the authority to act on behalf of any person for whom you are using the Services. You are deemed to have agreed to these Terms and Conditions on behalf of any entity for whom you use the Services.

These Terms and Conditions were created on 22 December 2015.

1. Use Of Software

We grant you the right to access and use the Services via www.safetymonitor.co.nz (“Website”) with the particular user roles available to you according to your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to these Terms and Conditions. This is acknowledged and agreed by you, subject to any applicable written agreement between the subscriber of the Services and any person or entity using the Services with the authorisation of the subscriber, or any other applicable laws.

2. Your Obligations

2.1 Payment obligations

As a paying subscriber of our Services, your credit card will be charged the applicable subscription fee at the date and for the period agreed upon when signing up for the subscription. The charge will be for the applicable period of use following payment. We will continue charging your credit card until these Terms and Conditions are terminated in accordance with clause 7.

2.2 Preferential pricing or discounts

You may from time to time, in our sole discretion, be offered preferential pricing or discounts for the monthly fee (excluding any taxes and duties) payable by you in accordance with the fee schedule set out on the Website (which we may change from time to time by giving notice to you) (“Access Fees”) as a result of the number of referrals that have signed up for our Services and traceable to you or for some other reason. This preferential pricing or discount will be credited to your credit card and/or your credit card may not be charged if you qualify for any free use of our Services.

2.3 General obligations

You must only use the Services and Website for your own lawful internal business purposes, in accordance with these Terms and Conditions and any notice sent by us or condition posted on the Website. You may only use the Services and Website on behalf of others or in order to provide services to others if you are authorised to do so and you must ensure that all persons for whom or to whom services are provided comply with and accept all of these Terms and Conditions.

2.4 Access conditions

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

2.5 Communication Conditions

As a condition of these Terms and Conditions, if you use any communication tools available through the Website, you agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use).

When you make any communication on the Website, you represent that you are permitted to make such communication. We are under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, you must exercise caution when using the communication tools available on the Website. We reserve the right to remove any communication at any time in our sole discretion.

2.6 Indemnity

You indemnify us against: all claims, costs, damage and loss arising from your breach of any of the Terms and Conditions or any obligation you may have to us, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by you. We (nor any of our employees, agents, contractors or advisers) will not be liable for any costs, losses, expenses or impact suffered or incurred by you, or any user, directly or indirectly, arising from any act (or failure to act) related to your use of the Services, our Website or our Website’s content.

3. Confidentiality And Privacy

3.1 Confidentiality

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

  1. Each party will preserve the confidentiality of all information exchanged between the parties in connection with the Services, whether in writing, electronically or orally, including the Services (but not information which is, or becomes, publicly available other than through unauthorised disclosure by the other party) (“Confidential Information”). Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by the Terms and Conditions.
  2. Each party's obligations under this clause will survive termination of use of the Services and these Terms and Conditions.
  3. The provisions of clauses 3.1 and 3.2 shall not apply to any information which:
    1. is or becomes public knowledge other than by a breach of this clause;
    2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
    3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
    4. is independently developed without access to the Confidential Information.

3.2 Privacy

Whenever you provide us with personal information through your access to, or usage of the Website, you consent to the collection, use and disclosure of that information in accordance with the provisions of our privacy policy, as may be amended from time to time. When you accept these Terms and Conditions you will be taken to have accepted our privacy policy (which can be read at http://www.safetymonitor.nz/privacy)

4. Intellectual Property

4.1 General

Any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered (“Intellectual Property Rights”) relating to the Services, the Website and any documentation relating to the Services remain owned by us (or our licensors) at all times.

4.2 Ownership of Data

Title to, and all Intellectual Property Rights in, the data inputted by you or with your authority into the Website (“Data”) remain your property. However, your access to the Data is contingent on full payment of the Access Fee when due. You grant us a license to use, copy, transmit, store, and back-up your information and Data for the purposes of enabling you to access and use the Services and for any other purpose related to provision of services to you.

4.3 Backup of Data

You must maintain copies of all Data inputted into the Services. We adhere to best practice policies and procedures to prevent Data loss, including a daily system Data back-up regime, but do not make any guarantees that there will be no loss of Data. We expressly exclude liability for any loss of Data no matter how the loss is caused.

4.4 Third-party applications and your Data.

If you enable third-party applications for use in conjunction with the Services, you acknowledge that we may allow the providers of those third-party applications to access your Data as required for the interpretation of such third-party applications with the Services. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers.

5. Warranties And Acknowledgements

5.1 Acknowledgement

You acknowledge that:

  1. You are authorised to use the Services and the Website and to access the information and Data that you input into the Website. You are also authorised to access the processed information and Data that is made available to you through your use of the Website and the Services (whether that information and Data is your own or that of anyone else).
  2. We have no responsibility to any person other than you and nothing in these Terms and Conditions confers, or purports to confer, a benefit on any person other than you.
  3. We do not warrant that the use of the Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Services, including public telephone services, computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. We are not in any way responsible for any such interference or prevention of your access or use of the Services.
  4. It is your sole responsibility to determine that the Services meet the needs of your business and are suitable for the purposes for which they are used.

5.2 No warranties

We give no warranty about the Services. Without limiting the foregoing, we do not warrant that the Services will meet your requirements or that they will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

5.3 Consumer guarantees

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

7. Limitation Of Liability

  1. To the maximum extent permitted by law, we exclude all liability and responsibility to you (or any other person) in contract, tort (including negligence), or otherwise, for any loss or damage resulting directly or indirectly, from any use of, or reliance on, the Services, the Website or the Website’s contents.
  2. If you are not satisfied with the Services, your sole and exclusive remedy is to terminate these Terms and Conditions in accordance with Clause 7.

7. Termination

7.1 Prepaid Subscriptions

We will bill you at the start of the month for the current month once you sign up as a paying subscriber. The date you will be charged will be related to the day that you sign up as a paying subscriber and you will then be billed once a month from then (you will pre-pay each month in advance). We will not provide any refund for any remaining pre-paid period for a pre-paid Access Fee subscription. If you choose to take up the annual plan, you will be billed at the date that you commit to the annual plan and then will be billed once per annum, 12 months later unless you cancel your subscription before the next anniversary date of annual billing. If you cancel your annual subscription within your annual paid period, you will not receive a refund on any unused time portion.

The subscription pricing you originally sign up with will not be subject to any future price increases. Any future increases in the pricing plans will only be applicable to newly signed up accounts, existing accounts will remain as is. Additional optional modules/features may become available and may incur an additional fee.

7.2 No-fault termination

These Terms and Conditions will continue for the period covered by the Access Fee paid or payable under clause 2. At the end of each billing period your subscription and thereby these Terms and Conditions will automatically continue for another period of the same duration as that period, provided you continue to pay the prescribed Access Fees when due, unless either party terminates your subscription and thereby these Terms and Conditions by giving notice to the other party at least 10 days before the end of the relevant payment period.

Breach:

If You:

  1. Breach any of these Terms and Conditions and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
  2. Breach any of these Terms and Conditions and the breach is not capable of being remedied; then

we may take any or all of the following actions, at our sole discretion:

  1. Terminate these Terms and Conditions and your use of the Services and the Website;
  2. Suspend for any definite or indefinite period of time, your use of the Services and the Website;
  3. Suspend or terminate access to all or any Data; or
  4. Take any of the actions in this clause 7.2 in respect of any or all other persons whom you have authorised to have access to your information or Data.

7.3 Accrued Rights

Termination of these Terms and Conditions is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of these Terms and Conditions you will immediately cease to use the Services and the Website.

7.4 Expiry or termination

Clauses 2.1, 2.3, 2.6, 3, 4, 5, 6, 7 and 9 survive the expiry or termination of these Terms and Conditions.

8. Help Desk

8.1 Technical Problems

In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, please check the support provided online by us on the Website or failing that, email us at support@safetymonitor.nz

8.2 Services availability

Whilst we intend that the Services will be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to allow maintenance or other development activity to take place.

If for any reason we have to interrupt the Services for a longer period than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the Website.

9. General

10.1 Entire agreement

These Terms and Conditions, together with the Privacy Policy and the terms of any other notices or instructions given to you under these Terms and Conditions, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between you and us relating to the Services and the other matters dealt with in these Terms and Conditions.

9.2 Waiver

If either party waives any breach of these Terms and Conditions, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

9.3 Delays

Neither party will be liable for any delay or failure in performance of its obligations under these Terms and Conditions if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

9.4 No Assignment

You may not assign or transfer any rights to any other person without our prior written consent.

9.5 Governing law and jurisdiction

These Terms and Conditions shall be interpreted in accordance with the laws of New Zealand and the Courts of New Zealand shall have exclusive jurisdiction to hear any dispute related to or arising out of these Terms and Conditions.

9.6 Set-off

Where you have incurred any liability to us, whether under these Terms and Conditions or otherwise, we reserve the right to set-off the amount of such liability against any sum that would otherwise be due to you in relation to these Terms and Conditions.

9.7 Severability

If any part or provision of these Terms and Conditions is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of these Terms and Conditions will be binding on the parties.

9.8 Notices

Any notice given under these Terms and Conditions by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to us must be sent to support@safetymonitor.nz or to any other email address notified by email to you by us. Notices to you will be sent to the email address which you provided when setting up your access to the Services.

9.9 Rights of Third Parties

A person who is not a party to these Terms and Conditions, other than our successors or assigns, has no right to benefit under or to enforce any clause of these Terms and Conditions.

Website Terms and Conditions

Using our Website

  1. By using the Website (“Website") operated by Safety Monitor Limited ("we" or "us"), the customer ("you") agree that:
    (a) We are providing you with a cloud-based tool to assist you to manage health and safety within your business ("Services") subject to the following Website terms and conditions, and our general terms and conditions (together, the "Terms and Conditions").
    (b) We reserve the right to change any of our Terms and Conditions on notice, and will post such notice on our Website advising of such change.
    (c) By using our Website or purchasing the Services from us, you are legally bound by the version of these Terms and Conditions current at the time of your visit or purchase.
    (d) If you do not wish to be bound by these Terms and Conditions then you may not use our Website or purchase Services through our Website.
  2. The information on this Website is for general information only and is subject to change at any time. You must not rely on it as being complete, accurate, or up-to-date. To the fullest extent permitted by law, we disclaim all warranties, express or implied, including (without limitation) warranties as to the accuracy, completeness or fitness for any particular purpose, of the Services, the Website or the Website's content. We will not be liable for any damages, losses (including, without limitation loss of profits, business or data), costs or expenses of any kind, which arise out of, or result from, any use of, or inability to use, this Website or any other Website which is linked to this Website.
  3. Links to other sites are provided for convenience only and do not represent any endorsement by us of the information or services offered by the site owner. Use of any information provided on any linked Website is at your sole risk.
  4. The copyright in the Services, this Website and this Website’s content is owned by us. You may electronically reproduce and store the Website’s content solely for the purposes of viewing the Website, or saving its content. However, you will not display or distribute any part of the Website’s content in any way, including in public, or in such a way that they will be accessible to the public (including reproduction in any form on the internet), unless you have first received our written permission which will be subject to any further terms or conditions we impose.
  5. 5. These Terms and Conditions incorporate our Privacy Policy, as amended from time to time. Whenever you provide us with personal information through your access to or usage of this Website, you consent to the collection, use and disclosure of that information in accordance with the provisions of our Privacy Policy.
  6. We will try to make our Website available at all times but cannot guarantee that it will operate continuously without interruption, or be error free. We will not be liable to you for any such unavailability.
  7. We reserve the right to alter, suspend or discontinue any aspect of our Website, the content or Services available through it, including your access to it. Unless explicitly stated any new features including new Services shall be subject to these Terms and Conditions.
  8. You are responsible for ensuring that your computer system meets all relevant technical specifications necessary to use our Website and is compatible with our Website. You also understand that we cannot and do not guarantee or warrant that any material available for downloading from our Website will be free from infection, viruses and/or other code that has contaminating or destructive properties. You are responsible for implementing sufficient procedures and virus checks (including anti-virus and other security checks) to satisfy your particular requirements for the accuracy of data input and output.
  9. You must not attempt to interfere with the proper working of our Website and, in particular, you must not attempt to circumvent our security, tamper with, hack into, or otherwise disrupt any of our computer systems, servers, Websites, routers, or other internet connected devices.
  10. You will not link our Website without our prior written consent. Any such linking will be entirely your responsibility and at your expense. By linking, you must not alter any of our Website's content including any intellectual property notices and you must not frame or reformat any of our pages, files, images, text or other materials.