EX-ONLINE TERMS OF USE

 

BY APPLYING FOR A USER ACCOUNT TO ACCESS AND USE THE EX‑ONLINE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE.

 

1                 Definitions and interpretation

1.1             In these Terms of Use:

Access Fees means the access fees specified in our offer or proposal to you.

Ex-Online means Ex-Online Pty Ltd ACN 618 033 793.

Ex-Online Service means the online service provided by Ex-Online through the website located at  ex-online.com, including compilation and hosting services for Hazardous Area Verification Dossiers and Explosion Protection Documents.

Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.

Intellectual Property Rights means all industrial and intellectual property rights throughout the world including current and future registered and unregistered rights in respect of trade marks, copyright, source-code, databases, circuit layouts, designs, patents, inventions and discoveries, trade secrets, know-how and confidential information and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Law means the common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).

Permitted Purpose means to assist You in the compilation and hosting of hazardous area verification dossiers, explosion protection documents and other similar compliance dossiers.

Personal Information has the meaning given in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means Ex-Online’s privacy policy as updated from time to time and located at [insert].

Product Data means any information, documents or data (including calculations, inspection records and certificates and associated meta-data) made available or sourced through the Ex-Online Service.

Terms of Use means these Ex-Online Terms of Use, as amended by us from time to time.

Third Party Data Provider means a third party that has licenced certain Product Data to Ex‑Online or made such Product Data available for access (including for access via a Third Party Website).

Third Party Website means a website or online service or portal maintained or hosted by a Third Party Data Provider through which certain Product Data may be accessed by You.

You means a user of the Ex-Online Service, including You in Your personal capacity, as well any entity, business or organisation that You represent, and Your has an equivalent meaning.

1.2             The headings in these Terms of Use are for convenience of reference only and do not affect interpretation.  The words “include” and “including” do not limit the meaning of the words to which they relate.  A reference in these Terms of Use to ‘we’, ‘us’ or ‘our’ is a reference to Ex‑Online.

2                 User account and access

2.1             To access the Ex-Online Service, You must first apply for and be granted a user account and log in using Your user name and password.  We reserve our right to not approve any user account application and to request further information from You with respect to Your user account application.

2.2             If You create an account on behalf of an organisation, You represent and warrant that You have the authority to act on behalf of and bind the organisation to these Terms of Use.

2.3             You must maintain the confidentiality of Your password and You are responsible for all activities that are conducted through Your user account.

2.4             Your user account and Your right to use Ex-Online Service are personal to You and You must not authorise others to use Your account. 

2.5             You must contact us immediately if You believe that someone has gained unauthorised access to Your account.  You are solely responsible for providing (at Your cost) all equipment, software and internet access necessary to access and use the Ex-Online Service.

2.6             The Ex-Online Service may provide system-generated values or provide information to assist You to locate Product Data.  However, You are responsible for checking that such system‑generated information is accurate and appropriate for Your purposes.

2.7             Your right to access and use the Ex-Online Service is subject to Your on-going compliance with these Terms of Use and Your payment of the Access Fees.  If You fail to comply with these Terms of Use, or fail to pay applicable Access Fees, we may terminate Your user account by notice to You. 

2.8             We may grant you access to the Ex-Online Service for demonstration purposes or to allow you to evaluate the Ex-Online Service, in which case no Access Fees are payable.  Such access is is subject to your compliance with these Terms of Use and is not to be used for any purpose other than demonstrating or evaluating the Ex-Online service.  We may terminate such access at any time.  Product data and content uploaded during demonstrations or evaluations may not be retained.

3                 Invoice

3.1             We will invoice you for the annual access fee on the creation of your account, and annually thereafter, unless notified by you in writing that you wish to cancel your access.

3.2             We will be entitled to invoice you monthly for any Ex-Online Service (including setup, engineering and training services) performed in the preceding month.

3.3             You agree to pay us the undisputed invoice amounts (where the dispute must be notified to us in writing) within 30 days from the date of the invoice.

3.4             We shall retain ownership of any goods supplied in conjunction with the services until you have paid for the goods in full.

4                 Use of Product Data

4.1             You acknowledge and agree that:

(a)          You may only use the Product Data for the Permitted Purpose;

(b)          the Product Data available on the Ex-Online Service may not comprise all data that You require to meet Your purpose or needs;

(c)           the Product Data available on Ex-Online Service may include data and certificates  aggregated from data and certificates prepared or made available by Third Party Data Providers, not by Ex-Online; Ex-Online does not produce all Product Data and has no control over the accuracy, currency or completeness of anyProduct Data which it does not create;

(d)          by accessing and using the Ex-Online Service, You authorise us to obtain Product Data on your behalf; and

(e)          we may provide You with access to Product Data by hyperlinks to Third Party Websites.

4.2             The Product Data is provided via the Ex-Online Service on an “as is, as available” basis.  Ex‑Online does not review or check the Product Data.  It is Your responsibility to take steps to review, verify and check the accuracy, currency and completeness of any Product Data that You access through the Ex-Online Service.

4.3             We do not guarantee that Your access to or use of the Ex-Online Service will be uninterrupted or error-free, or that materials accessible on or through Ex-Online Service will be free from errors, viruses, worms or other Harmful Code.  Access to the Ex‑Online Service may not always be available, including during maintenance and upgrades.

4.4             The Product Data and other content on the Ex-Online Service may be protected by copyright laws in Australia and overseas.  You agree to comply with any additional copyright notices or restrictions in relation to the use of such Third Party Data as published on or made available through the Ex-Online Service.

4.5             Ex-Online grants to You a non-exclusive, non-transferable, licence to access and use the Product Data solely for the Permitted Purpose.  This licence does not include any right to sub-licence other than with the prior written consent of Ex‑Online.

4.6             You must not:

(a)          resupply or resell any Product Data, whether as supplied by Ex-Online or reformatted or aggregated with other data; and

(b)          use the Product Data in any way that would contravene any Laws.

4.7             You must not use our trade marks without our prior written consent, except where such use is not use as a trade mark and to legitimately identify Ex-Online Service.

4.8             If, at any time, all or any part of the Product Data is, or in our opinion has become, subject of any claim for any infringement or contravention of the Law, Ex-Online may at its own expense and option remove, modify or replace the affected Product Data so that it is non-infringing and/or compliant.

4.9             You acknowledge that Ex-Online’s ability to provide the Product Data is subject to the terms of its agreements with Third Party Data Providers and that:

(a)          those agreements may expire, terminate or be amended from time to time; and

(b)          a Third Party Data Provider may, for whatever reason, not provide or make available the Product Data that the Third Party Data Provider is required to provide under those agreements,

in which case Ex-Online may need to cease making available the Product Data previously supplied by that Third Party Data Provider.

5                 Uploaded content

5.1             Some features of Ex-Online Service may allow You to upload content to Ex-Online Service and transfer information to us. 

5.2             You acknowledge that no data transmission over the internet can be guaranteed as completely secure or error free.  Ex-Online uses reasonable endeavours to protect such information however it does not warrant, and cannot ensure, the security of any content or information that You transmit to us using the Ex-Online Service or otherwise.

5.3             You must not upload or otherwise transmit or distribute material that breaches any law, infringes any third party rights (including any Intellectual Property Rights), is defamatory, discriminatory, obscene, offensive, misleading, deceptive, inflammatory or which is threatening, abusive or otherwise contravenes the Law.  

5.4             You warrant that You are the owner or authorised user of any content that You upload.

5.5             You must ensure that all content that You upload to Ex-Online Service is and remains accurate and complete.  You must retain a copy of the content that You upload.  We are not liable for any loss, damage or corruption of any content that You upload.

5.6             You acknowledge that You may be required to accept and approve information contained in any applications forms You submit using Ex-Online Service, and content submitted by You to Ex‑Online Service will be relied on by Ex-Online or any other parties to assess an application submitted by You.

5.7             You must not transmit to or via Ex-Online Service any Harmful Code or other information or otherwise use Ex-Online Service in a way which tampers with, hinders the operation of or makes unauthorised modifications to Ex-Online Service, or inhibits any other user from using Ex‑Online Service.

6                 Third Party Websites

6.1             The Ex-Online Service may contain or provide hyperlinks or references to other websites, portals and online services, including Third Party Websites.

6.2             We are not responsible or liable for the content of Third Party Websites and Your access to and use of those sites is at Your own risk.  Any hyperlinks are provided for convenience only and do not indicate any endorsement or recommendation by us.

7                 Intellectual property rights

7.1             You acknowledge and agree that:

(a)          other than as expressly stated in these Terms of Use, You do not acquire any rights (including Intellectual Property Rights) in or to the Product Data or the Ex-Online Service;

(b)          You will not, and will not permit any other person or entity to, infringe any Intellectual Property Rights subsisting in the Product Data or the Ex-Online Service; and

(c)           You will not make copies or derivative works of the Product Data.

8                 Limitation of liability and indemnity

8.1             To the extent permitted by Law, our total aggregate liability to You for:

(a)          any failure of Ex-Online to comply with any applicable guarantee under the Australian Consumer Law;

(b)          breach of these Terms of Use by Ex-Online;

(c)           negligence by Ex-Online or any of its directors, officers, employee or contractors or by any Third Party Data Provider or any of its directors, officers, employee or contractors,

is limited to Ex-Online doing one or more of the following (at its election):

(d)          in connection with a supply of goods through the Ex-Online Service:

(i)         the replacement of the goods or the supply of equivalent goods;
(ii)        the repair of the goods;
(iii)       the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv)       the payment of the cost of having the goods repaired; and

(e)          in connection with a supply of services through the Ex-Online Service:

(i)         the supplying of the services again; or
(ii)        the payment of the cost of having the services supplied again.

8.2             Subject to clause 7.1 and to the maximum extent permitted by Law, Ex-Online is not liable to You for:

(a)          any special, consequential, indirect, incidental, punitive or exemplary damages of any kind; or

(b)          loss of use or data, loss or damage to any equipment, loss of production, loss of opportunity, loss of profits or revenue, loss resulting from interruption of business and loss in connection with delays arising out of or in connection with the Ex-Online Service, howsoever caused, even if we have been advised of or should have known of the possibility of such loss or damage occurring.

8.3             You indemnify and hold Ex-Online and its Third Party Data Providers harmless from any loss or damage suffered or incurred by any of them in connection with:

(a)          any negligence by You or, if applicable, Your officers, employees, directors or contractors;

(b)          any breach by You of these Terms of Use; any use of or reliance on any Product Data by You; and

(c)           any breach by You of the terms of the Privacy Policy, including any failure by You to acquire any consent from a person with respect to the Personal Information of that person that may be required under that Privacy Policy.

9                 Privacy and Personal Information

9.1             Any information collected by us from You through the Ex-Online Service (including account information submitted by You) will be dealt with in accordance with our Privacy Policy.

9.2             When you use the Ex-Online Service, You consent to receiving cookies from us.  Cookies are code transferred to Your computer system that enable the Ex-Online Service to remember important information and preferences about how You use the Ex-Online Service.  We also use cookies for analytical purposes to improve the general usability and functionality of the Ex‑Online Service for all users.  You may be able to block cookies by adjusting Your browser settings however this may affect Your user experience of the Ex-Online Service.

10                 General

10.1             A single or partial exercise or waiver by us of a right relating to these Terms of Use does not prevent any other exercise of that right or the exercise of any other right.

10.2             These Terms of Use are governed by and construed in accordance with the Laws in force in the State of Queensland.  You agree to submit to the non-exclusive jurisdiction of the courts of Queensland.

10.3             These Terms of Use comprise the entire agreement between us and You with respect to its subject matter.  We reserve the right to amend these Terms of Use from time to time by notice to or by informing You when You access or login to the Ex-Online Service.  By You continuing to use of Your user account following us notifying or informing You of any amended Terms of Use, You agree to those amended Terms of Use.

10.4             We are not liable for any failure to perform or delay in performance where that delay or failure is beyond our reasonable control or due to any force majeure event.

10.5             If the whole or any part of these Terms of Use is void, unenforceable or illegal, it shall be severed from these Terms of Use.

10.6             The Terms of Use is not intended to create a partnership, joint venture or agency relationship between us and You.