STANDARD TERMS AND CONDITIONS
1. Application
These standard terms and conditions (Standard Terms) apply to the supply of Products to the Customerby Paramount Pre-Start Pty Ltd (PPS), unless an authorised PPS representative agrees in writing to the contrary.
2. Definitions
2.1 Definitions
Unless the context otherwise requires, in these Standard Terms and any other document forming part of the Agreement the following terms are defined:
(a) Act means the Work Health and Safety Act 2020 (WA), its associated subsidiary legislation and any other instruments imposing obligations on the Customer in relation to work health and safety matters.
(b) Agreement means the agreement between PPS and the Customer in respect of the Products, the terms of which include these Standard Terms and any other terms agreed by the parties in writing that are supplementary to these Standard Terms.
(c) Confidential Information includes any information or material of a confidential nature which relates to the activities, business or affairs of the relevant party (or its related bodies corporate), including information or material that relates to their products, software, processes, Intellectual Property Rights, processes or operational, financial or business information or those that they deal with, to the extent the foregoing is required to be kept confidential;
(d) Customer means the person or entity that purchases Products from PPS from time totime and, where the context permits, the officers, employees, representatives andagents of the Customer;
(e) End User means the Customer, its employees, contractors, agents and personnel or any person(s) or entity who has been supplied with the Product, or access to the Product, by or on behalf of the Customer or otherwise;
(f) Fees means the fees, prices and charges payable by the Customer to PPS in respect of the Products;
(g) Intellectual Property Rights includes any and all proprietary rights or rights subsisting or capable of subsisting or being obtained under any laws relating to intellectual property of any description, wherever situated and whether now or inthe future, including in connection with any of the following:
(i) inventions, techniques, patents, copyright, trade business, company or domainnames, rights in relation to circuit layouts, plant breeders’ rights, registereddesigns, and unregistered trade marks, know how, trade secrets, and the rightto have confidential information kept confidential; and
(ii) any application for or right to apply for registration, extension, renewal, appeal, enforcement or otherwise in respect of the foregoing;
(h) Paramount Prestart or PPS means Paramount Pre-Start Pty Ltd ACN 658 050 670 and, where the context permits include a reference to its related bodies corporate and their respective officers, employees and agents;
(i) Physical QR Code Board means the physical board bearing a QR code unique to the Customer manufactured for the Customer by PPS;
(j) Product or Products means any product including but not limited to any website or mobile application, Physical QR Code Board or software (including a series ofinstructions, rules, routines or statements, regardless of the media in which it is recorded, that allow or cause the software or mobile application to perform aspecific operation or series of operations) that PPS supplies, or makes available, to the Customer or to an End User directly;
(k) Safety Documents means work health and safety related documents generated by the Customer’s use of the Products;
(l) Standard Terms means the standard terms and conditions contained in this document,as amended from time to time;
(m) Warranty Period means 1 years from the date that the Customer first access or receives any Product (whichever is the earlier).
(n) Website means PPS’s website, located at www.paramountprestart.com, and (where the context permits) such other of PPS’s websites from time to time.
2.2Agreement to Standard Terms
(a) These Standard Terms apply to all transactions between the Customer and PPSrelating to the provision of Products (including any variations) and the Customer will be bound by these Standard Terms from the time it first accesses any Products, requests the supply of any Products or pays any Fees (whichever is the earlier).
(b) If the Customer is the trustee of any trust, this Agreement is binding on the Customer in its personal capacity and in its capacity as trustee of any trust, the Customer is validly appointed as the sole trustee and has the right to be fully indemnified out of the trust assets for all liabilities in connection with this Agreement.
(c) PPS may vary, alter, replace or revoke these Standard Terms without notice to the Customer if such action would have a minor or nil effect on the Customer or, in all other instances, on 21 days’ notice to the Customer.
3. Provisioning, Fees and Title
3.1 Provisioning
(a) In consideration of the Fees, PPS will provide the Products to the Customer.
(b) The Products will be provided to the Customer in accordance with PPS’s ordering policy and provisioning procedure in force at the time of ordering. Such policy and procedure is subject to change by PPS from time to time at its discretion.
3.2 Fees and Payment
(a) The Fees for the Products will be as stated by PPS at the time of ordering and are subject to change by PPS from time to time at its discretion.
(b) The Customer agrees to pay the Fees for all Products ordered by the Customer byway of direct debit from the Customer’s bank account and will sign any and allnecessary direct debit authorisations to enable such direct debiting to occur.
(c) All outstanding Fees will be direct debited from the Customer’s account on at least a monthly basis.
(d) The method and timing of payment of the Fees are subject to change by PPS from time to time at its discretion.
3.3 Title
(a) The Customer agrees to pay the Fees and acknowledges that:
(i) save for the Physical QR Code Board, all Products remain the property of PPS at all times; and
(ii) the Physical QR Code Board remains the property of PPS until all Fees are paid by the Customer and received by PPS, at which point title in the Physical QR Code Board passes to the Customer.
(b) If the Customer fails to pay any amounts due to PPS, PPS, its agents and their respective employees and contractors have the right and are granted an irrevocable licence to, at any time and without notice, enter the Customer’s premises (or any other location where the Customer operates) to exercise PPS’s rights under these Standard Terms, including but not limited to the right to repossess the Physical QR Code Board.
4. Products
4.1 Use of Products
The Customer agrees that:
(a) the Product is a tool to assist the Customer in the Customer’s development of, and End Users’ access to, Safety Documents for the Customer’s work health and safety purposes;
(b) it will comply with all of its work health and safety obligations under the Act, particularly in relation to how it uses the Product and the information it enters into PPS’s system for the purposes of developing Safety Documents;
(c) it will ensure that all End Users will comply with all lawful and reasonable directions given to them by the Customer in relation to workplace health and safety, and will promptly remove access for any End Users who do not so comply;
(d) it is responsible and liable for all acts and omissions of End Users in relation to End Users’ use of the Product and hereby indemnifies PPS for any loss or damage suffered by PPS arising from or connected to any acts or omissions of End Users in relation to End Users’ use of the Product;
(e) to the extent reasonably possible, the Products will be effectively and accurately integrated into the Customer’s existing work, health and safety management systems;
4.2 Access to Products
(a) If at any time PPS determines, in its absolute discretion, that
(i) the Customer is breaching, has breached or is likely to breach these Standard Terms;
(ii) the Product is being misused by the Customer and/or End User;
PPS may immediately suspend the Customer’s access to the Products without notice.
(b) In the event that PPS determines to suspend the Customer’s access to the Product under this clause, the Customer will not be entitled to any refund or compensation in respect of the suspended period.
(a) PPS offers a limited Product warranty in accordance with this clause 5.1 (PPSWarranty). Subject to the Australian Consumer Law and any limitations in this clause to the contrary, PPS warrants that all of PPS’s goods (excluding anyProducts manufactured or designed by a third party) are fit for purpose and will remain so for the duration of the Warranty Period, and if a valid claim is made on this warranty then PPS will replace or repair (at its discretion and costs) any defects in such goods.
(b) The Customer must make any warranty claim during the relevant Warranty Period in accordance with the procedure in (and otherwise comply with) the Warranty & Support Terms (if any). PPS’s sole liability for a claim under the PPS Warranty is limited to the remedies stated in paragraph (a) above.
(c) PPS will not be responsible for (and the PPS Warranty will not apply to) any defect,inoperability or non-compliance arising in connection with (or out of) any:
(i) failure of the Customer to comply with its obligations under this Agreement, any failure to ensure that the Products are used and stored in accordancewith the instructions for operation, care, maintenance or similar matterspublished by the PPS or the manufacturer and otherwise in accordancewith generally accepted practices for such operation, care andmaintenance;
(ii) modification, alteration or installation of the Products (or any plant or equipment upon which they were installed or any consumables used in same) by the Customer or any person other than PPS or its personnel;
(iii) abuse, misuse, negligence, errors or acts or omissions of any third party other than PPS’s personnel, including operating any Products despite any warnings or notifications as to potential errors published via any Software or the Customer or End User not following a direction of PPSthat is recommended by PPS; or
(iv) inappropriate environmental conditions in which the Products were installedor any Act of God, flood, fire, storm (including storm surge), tempest, power failure, power surge, accidental breakage or other events outside of PPS’s reasonable control.
5.2 Limitation of liability
(a) Subject to paragraph (b) below and any express warranties contained in thisAgreement (including the PPS Warranty), any other condition or warranty whichwould otherwise be implied in the Agreement which is capable of beingexcluded is hereby excluded, and all information, specifications and samplesprovided by PPS in relation to the Products are approximations only and smalldeviations or slight variations from them which do not substantially affect theCustomer’s use of the Products will not entitle the Customer to reject the Products, or to make any claim or seek to recover any Liabilities in respect of them.
(b) The Australian Consumer Law may give to the Customer certain guarantees. Where such guarantees apply to the supply of Products and liability for breach of any such guarantee can be limited, PPS’s liability (if any) arising from any breach of those guarantees is limited with respect to:
(i) with respect to goods, at PPS’s option, to the replacement of goods or thesupply of equivalent goods, the repair of the goods, the payment of the costs of replacing the goods or acquiring equivalent goods or the payment of the costs of having the goods repaired; or
(ii) with respect to services, at PPS’s option, to the supply of services again orcost of re-supplying the services again.
(c) Despite anything in these Standard Terms to the contrary and to the extent the lawpermits, the Customer acknowledges and agrees that PPS will not be liable:
(i) to the Customer for failing to comply with any of its legal obligations under the Act, including but not limited to a failure by the Customer to properly and accurately input information into PPS’s system for the purposes of generating Safety Documents;
(ii) to any third party or in respect of any direct, indirect, punitive, incidental,special, consequential losses or damages (including damages for loss of use, data or profits) and that PPS’s liability to the Customer in connection with any breach of these Standard Terms (including any negligence on the part of PPS or breach of any applicable laws) will be limited to theFees paid to PPS in respect of the Products to which the event or circumstance giving rise to the claim against PPS relates.
5.3 Risk
To the extent the law permits, the Customer indemnifies and must keep indemnified PPS(including its related bodies corporate and their respective officers, employees, contractors and agents) against any and all liabilities incurred, suffered or otherwise arising in connection with any:
(a) breach by the Customer (or any of its personnel) of its covenants in favour of PPS orany provision of the Agreement (including any inaccuracy of the warranties provided by the Customer);
(b) any negligent or wilful act or omission by the Customer (or any of its personnel) that causes personal injury (including death) or property damage; or
(c) any infringement of any third party’s rights (including any Intellectual Property Rights) by the Customer (or any of its personnel) from time to time.
6. Acceptance testing and defects
6.1 Acceptance testing
Unless the parties agree that the relevant Products are subject to acceptance testing, theCustomer undertakes to promptly inspect the Products upon receipt for any defects, faults orother non-compliance with the Agreement. If the Customer fails to notify PPS in writing of any defects, faults or other non-compliance with the Agreement within 7 days from date of deliveryor collection, then the Customer is deemed to have accepted the Products and that the Products are fully compliant with the Agreement. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
7. Confidentiality and IP
7.1 Confidentiality
Each party undertakes to keep confidential all Confidential Information relating to the otherparty and not to allow the disclosure of such Confidential Information to any person except tothe extent the other party has provided its prior written consent or where such disclosure is strictly and reasonably necessary for the performance of the party’s obligations under this Agreement or to enforce its rights. The preceding restrictions will not apply after (and to theextent) information becomes generally available to the public (other than as a result of a breach of obligations of confidence) or where such disclosure is required by law, court order or the rules of a recognised stock exchange (provided the party first provides reasonable notice of the intention to disclose and only discloses the minimal amount of information to comply with those requirements). Any obligations imposed on the parties under any previous non-disclosure orconfidentiality agreement will survive this Agreement and will continue to bind the parties.
7.2 Intellectual Property Rights
(a) PPS remains the absolute owner (and ownership will vest in PPS upon creation) of all Intellectual Property Rights that are used or created in connection with this Agreement, those in respect of the Products, any documentation provided or made available by PPS (including via the Website), the underlyinginfrastructure to support any Software and any databases or similar material created in providing the Products. This Agreement does not grant the Customer any title, interest or rights (including any Intellectual Property Rights) in or to any of the foregoing (or any modifications), except for the restricted rightsexpressly provided for in this Agreement.
(c) PPS’s ownership under paragraph (a) above extends to any work based on or incorporating all or any portion of the Products, including modifications,enhancements and customisations of the Products (whether developed by PPS,the Customer, the End User or a third party on either such party’s behalf or anycombination of such parties) (together Modifications), and the Customer herebyassigns to PPS all right, title and interest in the Intellectual Property Rightsembodied in any Modifications. To the extent they are not assignable, PPS is granted an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense) of any Intellectual Property Rights in the Modifications to use, disclose, reproduce, license, sell, offer for sale, distribute, import and otherwise exploit the Modifications in PPS’s discretion, without restriction or obligation of any kind or nature.
(a) In using the Products, the Customer or an End User may transmit and upload data toPPS’s systems and infrastructure via the Product (Customer Data). AnyCustomer Data will remain owned by the Customer or the End User (as the casemay be). However, any data that is produced or outputted by the Software will be owned by PPS and the Customer will have a royalty free, non-exclusive, irrevocable and perpetual licence to utilise such data for its business purposes.
8. Termination
8.1 Termination due to breach
A party (Innocent Party) may terminate this Agreement by notice in writing to the other party(Defaulting Party) if:
(a) the Defaulting Party breaches any provision of this Agreement, and the breach is either incapable of remedy or is not remedied to the reasonable satisfaction of the Innocent Party within 14 days of the Innocent Party providing written notice of the breach; or
(b) the Defaulting Party is insolvent or presumed to be insolvent, commits an act of bankruptcy or is declared bankrupt (as those terms as defined in the BankruptcyAct 1966 (Cth), has any creditors, debtors or similar petition relating toinsolvency presented against it, or is subject to any form of insolvency proceedings, external administration or similar court or voluntary process(including any liquidation, administration, deed or scheme of company arrangement).
8.2 Consequences of termination
(a) The termination of this Agreement is without prejudice to any rights that PPS may have at law or statute (which are hereby expressly preserved) and upontermination all monies owing to PPS (whether due for payment or not) willbecome immediately due for payment. Upon termination of this Agreement any licence or rights that the Customer may have had in respect of the Software will immediately cease.
(b) Any obligations of the Customer, or rights of PPS, under or in connection with thisAgreement that expressly or impliedly survive the termination of this Agreement (or are capable of surviving) will continue in full force and effect (including any provisions in respect of PPS’s Intellectual Property Rights, obligations of confidentiality and restrictions on use of the Software).
9. General
9.1 Assignment
(a) The Customer must not assign or otherwise deal with any of its rights or obligationsunder this Agreement without the prior written consent of PPS.
(b) PPS may assign or otherwise deal with any of its rights or obligations under thisAgreement without the Customer’s consent (including by subcontracting PPS’s obligations, but any such subcontracting will not relieve PPS from its obligations under this Agreement). PPS may, by notice to the Customer, transfer or novate this Agreement (and all of the parties’ respective rights and obligations inconnection with this Agreement) to any related body corporate of PPS from timeto time and upon such notice being given PPS will be released from its obligations owed to the Customer and such obligations will be assumed by the entity specified in the notice.
9.2 Variation and waiver
Any variations to this Agreement will not have any effect whatsoever unless in writing andsigned by PPS. Any failure of PPS to exercise any or all of its rights or powers under thisAgreement at any time and for any period of time shall not constitute a waiver of any of PPS’srights or powers arising pursuant to this Agreement.
9.3 Further assurances
The Customer must, at its own expense, do everything reasonably necessary (includingexecuting further documents) to give full effect to this document and the transactions contemplated by it (including in order to give effect to the assignment, licensing or ownership ofPPS’s Intellectual Property Rights).
9.4 Updates to Standard Terms
To the extent the law permits, PPS may amend these Standard Terms from time to time and willnotify the Customer of the amendments by publishing the amended document on its Website orby written notice to the Customer, and the amended terms will apply to any Products provided, accessed or requested after such notice and any variations to such Products.
9.5 Force Majeure
If the performance of the Agreement or any obligation under it (except for any obligation to pay)is prevented, restricted, interfered with or materially prejudiced by reason of circumstances beyond the reasonable control of the party obliged to perform it (including any Act of God, act of any governmental or competent authority, a pandemic or government response to a pandemic, the imposition of any new taxes, excise fees, tariffs or other mandatory charges or an increase insame, default of any suppliers under any contract to which PPS is a party or seizure or stoppageof goods in transit), the party so affected (upon giving prompt notice to the other party) shall beexcused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use its best endeavours to avoid or remove the causes of non-performanceand shall continue performance under the Agreement with the utmost despatch whenever such causes are removed or diminished. If such causes are not reasonably able to be overcome, then the parties will negotiate in good faith alternative arrangements for the performance of the Agreement.
9.6 Whole agreement
To the extent the law permits, the Agreement represents all the terms and conditions between the parties, and the Customer acknowledges that it has not entered into the Agreement (or accepted any Quote) in reliance on, or as a result of, any promise, representation, statement, conduct orinducement of any kind relating to any matter in connection with the Agreement from PPS or itsagents.
9.7 Severance
If a provision of the Agreement is not permitted by law (Void Term), then the Void Term shall beread down to the extent required to ensure it is enforceable; if the Void Term is unenforceable due to it imposing liability on the Customer, the Customer shall be liable to the extent the Customer caused or contributed to the liability; if the Void Term is unenforceable due to releasing PPS from an obligation, PPS will still be liable to perform the obligation to the extent PPS either caused or contributed to the obligation being breached. If the foregoing does not cure the invalidity or unenforceability, the Agreement does not include the Void Term and the remainder of the Agreement continues in full force.
9.8 Governing Law
The Agreement is governed by the laws of Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Western Australia.
9.9 Discretion
Where the Agreement allows PPS a discretion or power (including where ‘may’ is used), the discretion or power may be exercised in PPS’s absolute discretion, without giving reasons andmay be conditional. Where the Agreement requires PPS to agree to something or PPS’s consentto be obtained, the agreement must be in writing by a duly authorised representative of PPS andthe consent must be prior written consent.
Paramount Pre-start Pty Ltd ACN 658 050 670
Current as at:
