Client terms & conditions

The Terms set out the terms and conditions on which INX Software Pty Ltd (ABN 50 162 477 965), will provide the Client with access to, and use of, the Sitepass Platform.

By clicking the ‘I accept’ button or otherwise accessing or registering to use the Platform, the Client agrees that they have read, understood and will be bound by the Terms.

Any version of the Terms in a language other than English is provided for convenience only and the Client understands and agrees that in the event of any conflict or inconsistency between terms and conditions translated in a language different than the English that the terms and conditions set forth in English language shall prevail.

Definitions and interpretation

Definitions

In these terms:

“Acceptable Use Policy” means the Sitepass Acceptable Use Policy (as amended from time to time) and available at this link.

“Agents” means the Sitepass employees, contractors, service providers, officers, professional advisers or other agents (Agents).

“Bespoke Services” means those services where the Client requires Sitepass to provide tailored or individual assistance including, but not limited to the specific needs of the Client such as integration, configuration, development of a new course. Such bespoke services are provided by way of separate agreement negotiated between the Client and Sitepass.

“Bespoke/Self Authored Courses” means any course hosted or created on Sitepass Platform that is not a Sitepass Course. A Bespoke/Self Authored Course includes courses created using the self-authoring tool from LAB or courses uploaded as SCORM format via LAB “Business Day” means any day other than a Saturday, Sunday or a statutory public holiday in the legal jurisdiction in which the Client is making use of the Sitepass Platform.

“Confidential Information” means, in relation to a party (disclosing party), means the terms of the Terms and any and all information of whatever nature directly or indirectly concerning the operations, dealings, organisation, personnel, business strategies, Clients, technology, finances, software, data (technical or non-technical), Intellectual Property Rights, trade secrets or know-how, projects and forecasts, and information relating to systems or processes, marketing information relating to or owned by either party or any of its related companies or which is obtained directly or indirectly from a party or any of its related companies under or in connection with by the disclosing party and/or any Client, supplier of the disclosing party, disclosed or made available to the other party (the receiving party), and whether disclosed or made available before, on or after the date of the Terms, but does not include information which:

a) is or becomes part of the public domain other than by breach of the Terms;
b) was already known to it at the time of disclosure by the disclosing party; and
c) the receiving party acquires from a source other than the disclosing party.

“Client” means the company, trust or other entity that has engaged the User in any capacity and has invited the User to register for a Sitepass Platform account or requires the User to register for a Sitepass Platform account

“Client Data” means non-public data and content provided by the Client in the Sitepass Platform including without limitation: (a) data submitted, uploaded or imported to the Sitepass Platform by the Client or on behalf of the Client (including from Third Party Platforms), training content developed on the platform which contains client information or processes.

“Consequential Loss” means loss beyond the normal measure of damages and includes indirect loss, loss of revenue, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, loss of use, loss of, or damage to, data, cost of capital or costs of substitute goods, facilities or services.

“Content/Partner Providers”means a third party with whom INX Software Pty Ltd has an agreement to co-fund and/or jointly develop content into eLearning courses available through the Marketplace and/or Sitepass.

“Courses” means courses built by Sitepass as an out of the box solution and made available through the Marketplace.

“Data” means all data, information, content or communication transmitted, uploaded or inputted onto the Sitepass Platform including, but not limited to Client Data, or any User Data or otherwise as a result of the Client’s or a User’s use of the Sitepass Platform (including any personal information or sensitive information, as such terms are defined in the Privacy Act 1988 (Cth)).

“Disabling Code (Virus)” means any malicious software, code, file, programme, worm, trojan horse or any other malware, including source or object code, which has been maliciously inserted into software/system for the purposes of disrupting, impairing, disabling or otherwise adversely affecting, shutting down or denying the Client access to the Sitepass Platform spyware or computer software routine which may:

a) prevent, impair or otherwise adversely affect access to or the operation of the Sitepass Platform; or
b) adversely affect any user experience of the Sitepass Platform.

“Existing Intellectual Property” means all works in which Intellectual Property Rights subsist which is owned by, or proprietary to, a party at the date of the Terms or developed by (or on behalf of) a party other than pursuant to the Terms, and includes any development, improvement, modification, alteration, adjustment, upgrade, derivation or adaptation of, renewal of, or addition to those works in which Intellectual Property Rights subsist.

“Fees” means all fees and charges (and method and timing of payment) for use of the Sitepass Platform, the Services or licence of the Courses set out in this Link as amended from time to time by Sitepass.

“Force Majeure Event” means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war, civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing internet or telecommunications outage or impairment.

“GST” means Goods and Services Tax under A New Tax System (Goods and Services Tax) Act 1999, at the rate prevailing from time to time.

Initial Term means period of the Agreement specified in the Proposal signed by the Client.

“Intellectual Property Rights” includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future; means any patent, design, trade mark, copyright, know-how, trade secret, confidential information and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, documentation, written material, program or other software (including, without limitation, in source and object codes), specification, formula, drawing, program, design, system, process, business name, trade name, trade mark, service mark, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person or used in relation to such technologies which is not already available in the public domain.

“Login Details” means the user name, password and other login details used by the Client from time to time for the purpose of accessing the Platform by way of the Sitepass App or the Website.

“Loss” means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.

“Material” means:

a) in relation to Sitepass: all content and Data made available on the Sitepass Platform by Sitepass or on behalf of Sitepass by a third party including, but not limited to, all Course content and materials, any written content, images or video, illustrations, audio, code and processes used to develop the online courseware and all modifications or additions to the content and Data made available by Sitepass or a third party on behalf of Sitepass on the Sitepass Platform pursuant to the Terms; and
b) in relation to the Client: the Client Trade Marks, all information, documents and other materials in any media whatsoever provided by or on behalf of the Client to the Sitepass Platform (including any information, documents or other materials in respect of any Hosted Licenses) for the purposes of, or otherwise in connection with, the provision of the Services.

“Payment Provider” means an entity appointed by Sitepass that manages and operates payments including accepting payments from and making payments to Clients. Currently, Stripe is appointed as payment provider and the terms at https://stripe.com/au/ssa are incorporated into these Terms.

“PECR” means the Privacy of Electronic Communications (EC Directive) Regulations 2003.

“Personal Information” means personal or sensitive information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.

“Privacy Policy” means the Sitepass privacy policy and privacy collection statement (as amended from time to time) and available at this link.

“Proposal” means Sitepass offer presented to the Client for consideration and acceptance agreeing the Initial term and part of this Agreement.

“Sales Tax” means the sales tax applicable in the jurisdiction in which the User resides (including, but not limited to, GST in Australia and New Zealand and VAT in the UK).

“SCORM” stands for “Sharable Content Object Reference Model”, a set of technical standards for elearning software products and refers to the industry standard produced by Advanced Distributed Learning for e-learning interoperability.

“Services” means all services supplied by Sitepass to the Client via the Sitepass Platform including:

a) marketing, promoting, facilitating, offering, hosting and providing Courses;
b) licensing of specific Courses via the Marketplace;
c) delivery of compliance management services for each member of Personnel;
d) accessing and making use of User Data included in User Profiles;
e) accessing and using Sitepass as a contractor or visitor management system;
but not including any Bespoke Services.

“Sitepass” means INX Software Pty Ltd ABN 50 162 477 965.

“Sitepass App” means any mobile application or desktop user software included in the applicable Service that is made available by Sitepass.

“Sitepass Platform” means a proprietary Contractor Management System platform that comprises a web hosted service that is a combination of hardware and software and is developed, maintained and fully owned by INX Software Pty Ltd ABN 50 162 477 965. It is accessible through the Website and the Sitepass App.

“Terms” mean:

a) these terms and conditions under which the Clients access and make use of the Services.
b) the User Terms;
c) the Support Service Levels;
d) the Platform Service Levels;
e) the Privacy Policy;
f) the Disclaimer;
g) the Security Policy
h) the Website Terms of use;
i) the Acceptable Use Policy; and
j) the Initial Term

“Third Party Licensors” means third party who authorises INX Software Pty Ltd to sub-license their Third Party Material.

“Third Party Material” means any materials that INX Software Pty Ltdhas licensed from a Third Party Licensor which INX Software Pty Ltd is authorised to sub-license to Client and includes (but is not necessarily limited to) online course(s) and all constituent or associated content in any format (including but not limited to videos, images, animations, text files). For the avoidance of doubt, Third Party Material includes any and all enhancements, alterations, modifications, updates, adaptations, translations, reproductions or copies of any such material.

“Updates” means any enhancement to Sitepass or a Course made by or on behalf of Sitepass, including any updates necessitated by changes in law.

“User” means any employee, secondee, agent, supplier and contractor engaged by the Client who registers on the Sitepass Platform and who in any way uses the Sitepass Platform, any Course, the Materials, or any of the Services.

“User Data” means any data, about or relating to, a User (including personal and sensitive information) which:

a) is provided by the Client to Sitepass while using the Sitepass Platform;
b) Sitepass collects or records through the performance of any Services; or
c) is input into the Sitepass Platform or processed or generated using the Sitepass Platform by, or on behalf of, a User creating a User Profile, a Visitor, Contractor or Supplier which is stored by the Sitepass Platform.

“User Profile” means the profile created by a User when the User creates a Sitepass Platform account and uploads details about themselves including but not limited to: full name, date of birth, address, medical information, qualifications, credentials, certifications, copies of licences, passports and other information that may be relevant or required by the Client).

“User Terms” means the terms and conditions under which Users access the Services.

“Website” means Sitepass website at https://mysitepass.com.

“Website Terms and Conditions” means the terms and conditions applicable to viewers of the Website (including Clients) as amended from time to time, that can be accessed on the Website.

Interpretation

In these terms:

a) section, clause and other headings are for convenience only and do not affect interpretation; and unless the context indicates a contrary intention;
b) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
c) a word indicating the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
d) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
e) reference to a party will include that party’s executors, administrators, successors and permitted assigns;
f) reference to “dollars” and “$” refers to the currency applicable in the legal jurisdiction in which the Client is , although all payment will be transacted through Australia.
g) a reference to a specific time for the performance of an obligation is a reference to that time in the legal jurisdiction or other place where that obligation is to be performed;
h) “includes” in any form is not a word of limitation;
i) a reference to:
– a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
– a document includes all amendments or supplements to that document;
– a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to these terms;
– any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done; and
j) the terms “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form.

Access to the Sitepass platform

1. Sitepass may, at its discretion, provide the Client with access to, and use of, the Sitepass Platform.
2. Sitepass grants the Client a non-exclusive, non-transferable licence to use the Sitepass Platform as reasonably necessary for the Client to receive the Services.
3. The Client acknowledges that Sitepass retains the sole discretion regarding the features, functions and other benefits of the Sitepass Platform.
4. The Client acknowledges and agrees that Sitepass may at any time vary, modify or suspend any features, functions and other benefits available to the Clients in respect of the Sitepass Platform, or any Client’s access to or use of the Sitepass Platform.
5. The Client acknowledges and agrees that the Sitepass Platform may be accessed and used from a variety of jurisdictions and Sitepass makes no representations or warranties that the Sitepass Platform, Courses or Sitepass Materials comply with the laws of any particular jurisdiction.
6. The Client must ensure that it and its Users comply with the laws applicable in any jurisdiction when accessing, and making use of, the Sitepass Platform.
7. The Client must not sublicense or otherwise authorise any third party to use the Sitepass Platform for any purposes whatsoever, save that Client may authorise Users to make use of the Sitepass Platform on the User terms published by Sitepass from time to time in relation to the use of the Sitepass Platform.
8. The Client must not use, copy, modify or otherwise exploit the Sitepass Platform except for the purpose of receiving and to the extent necessary to receive the Services.
9. The Client must not decompile, reverse engineer or otherwise attempt to derive the algorithms by which the Sitepass Platform operates or translate, disassemble, reproduce, adapt or create derivative works based on the Sitepass Platform.
10. The Client may invite a User to access the Sitepass Platform and other Services. The Client acknowledges and agrees that the User will have to register separately on the Sitepass Platform and hold separate login details.

Login details

1. As part of the registration process, the Client will identify an administrative user name and password for its Sitepass account.
2. The Client must:
   1. keep all Login Details confidential and secure; and
   2. notify Sitepass immediately if the Client has any grounds to believe that the Login Details may have been disclosed to or accessed by any person not authorised to have access to the Login Details.
3. The Client agrees that Sitepass may change, amend, cancel or disable the Login Details at any time and for any reason Sitepass considers appropriate.

Services

1. Site Pass will provide the Services to the Client in the manner determined by Sitepass (acting reasonably).
2. Sitepass will not, in any circumstances or for any reason outside of its reasonable control (including the occurrence of a Disabling Code or a Force Majeure Event), be liable for late or part provision of the Services.
3. Sitepass will use all reasonable efforts to procure that the Client is able to access the Services 24 hours per day, seven days per week or as otherwise stated on the Website from time to time. However, due to the nature of the Sitepass Platform, Sitepass cannot guarantee the continuous or uninterrupted availability or accessibility of the Sitepass Platform (including due to any Disabling Code or Force Majeure Event).
4. Sitepass may from time to time alter, interrupt or suspend the Client’s right to access the whole or any part of the Services.
5. The Client agrees that Sitepass will not be liable for any damages that may arise from any such interruption, suspension, or alteration pursuant to clause 4.4.
6. Sitepass may improve, enhance and modify the Sitepass Platform at any time if it is necessary in the view of capacity limits, security or integrity of Sitepass’ servers, or to carry out maintenance measures for proper or improved functioning of the Sitepass Platform.
7. The stability of the Sitepass Platform and Sitepass Material delivered through any desktop, software or user virtualisation system is subject to the configuration and the support of the Client’s internal IT resources.
8. Without limiting this clause 4, the Client may not refuse to pay for the Services or cancel the Services because of any part or late provision of Services by Sitepass, and the Client agrees that Sitepass will not be liable for any Loss that the Client suffers as a result of any delay or cancellation.

Client obligations

1. The Client acknowledges and agrees that:
   1. it must satisfy itself that the Sitepass Platform is compatible with its own hardware, software and internet and network capabilities;
   2. it is solely responsible for maintaining all hardware, software and other technology necessary to be able to access and use the Sitepass Platform;
   3. Sitepass does not verify the accuracy or completeness of User Profiles and the Client must make its own assessment of the accuracy and/or completeness of the User Profiles;
   4. it must not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Sitepass Platform;
   5. it must not distribute, rent, lease, lend, sell, licence or otherwise dispose of all or any part of the Sitepass Platform;
   6. it must not (without limiting its obligations under these terms) make any part of the Sitepass Platform publicly available;
   7. it must not lodge or upload any material to the Sitepass Platform that is in any way defamatory, libellous, hateful, discriminatory, obscene, pornographic or similarly illegal, immoral or offensive and the Client agrees that it will be solely responsible for any consequences connected with the lodging or uploading of all material;
   8. it must not make any Sitepass Materials publicly available;
   9. it must only make Sitepass Materials available to Users who hold a separate Sitepass Platform account;
   10. it must not authorise any person to make use of the Courses other than the Users who hold a separate Sitepass Platform account;
   11. it must not make copies of, or otherwise make, any part of the Courses available to any third party;
   12. it must comply with all applicable privacy laws in making use of any Sitepass Materials, User Data or User Profiles; and
   13. must use Sitepass Materials for internal business purposes (which includes, for the avoidance of doubt, making them available for Users).

Marketplace - course

1. The Sitepass Platform permits the Client to licence Courses and make such Courses available to Users through the Marketplace.
2. If a Client selects one or more Courses in the Marketplace, the Client will be granted a non-exclusive, non-transferable licence of each selected Course to make use of the Course and to authorise Users to make use of each selected Course by way of the Sitepass Platform.
3. Sitepass adopts a scheduled update process for its Courses. The process is based on a regular review of the course script by a reputable Subject Matter Expert. Frequency of review depends on subject material. The review ensures the content in the Courses is consistent with relevant Legislation, Regulations, Australian Standards or best practices, as appropriated.
4. The Client will be charged a Fee on each occasion that a Course is started.
5. Fees will be invoiced and paid in accordance with clause 16.

Upgrades

1. Upgraded Courses will align with the minimum technical specifications at the time of release. Upgrades to Courses will be released via the Marketplace in the Sitepass Platform.
2. If the Client has acquired a course that is the subject of an Upgrade, the Client and its Users will be entitled to make use of the upgraded Course through the Sitepass Platform.

Bespoke services

1. The Client acknowledges and agrees that if it requires Sitepass to provide Bespoke Services, such services will be supplied by Sitepass under a separate agreement.
2. Should the Client require Bespoke Services, the Client should notify Sitepass and Sitepass will negotiate separate arrangements with the Client.
3. The Client may make Bespoke/Self authored courses accessible to Users via the Sitepass Platform.
4. The Client acknowledges and agrees that it is solely responsible (and at its sole cost) for ensuring that the Bespoke/Self authored courses are appropriately configured so as to ensure it is able to operate on the Sitepass Platform.
5. The Client acknowledges and agrees that:
   1. Sitepass has no responsibility for ensuring that the Bespoke/Self authored courses operate correctly on the Sitepass Platform;
   2. Sitepass will not be liable for any Loss suffered by the Client as a result of the Bespoke/Self authored courses not operating as anticipated or otherwise affecting access to the Sitepass Platform; and
   3. it indemnifies Sitepass for any Loss, liability or other claim it may suffer or incur as a result of the Bespoke/Self authored courses being made available on the Sitepass Platform including, but not limited to, the Bespoke/Self authored courses preventing access to the Sitepass Platform due to some Disabling Code, a claim by a third party against Sitepass for infringement of Intellectual Property Rights associated with the Bespoke/Self authored courses.

Restrictions and responsibilities

1. The Client acknowledges that it has read the Acceptable Use Policy and Privacy Policy and that the Client agrees with the content of, and to be bound by, both the Acceptable Use Policy and Privacy Policy.
2. The Client acknowledges and agrees that:
   1. the Services, the Courses and the Sitepass Materials are provided by Sitepass or third-party providers (including Content/Partner Providers) and are the copyrighted works of Sitepass and/or such third parties; and;
   2. Content/Partner Providers may choose to terminate their relationships with Sitepass and become inactive (Sitepass does not guarantee Content/Partner Provider or Course availability and Sitepass is not liable for any issues relating to Content/Partner Provider or Course availability).

Security of information

1. Sitepass will take reasonable steps to protect the security of Data transmitted to and from the Sitepass Platform.
2. Sitepass does not provide any warranties regarding the security of the Sitepass Platform or any information and Data transmitted to and from the Sitepass Platform.
3. All use of the Sitepass Platform or transmissions of information and Data to, or from, the Platform are at the Client’s risk.
4. For security, statistical and other related purposes, Sitepass may monitor the Client’s access to and use of the Sitepass Platform and record or otherwise capture Data or other information relating to the Client’s access to and use of the Sitepass Platform.
5. The Client acknowledges and agrees that where personal information or sensitive information (as such terms are defined in the Privacy Act 1988 (Cth)) is collected by Sitepass in connection with the Terms or as a result of the use of the Sitepass Platform by the Client, such personal information or sensitive information will be collected, maintained and used by Sitepass in accordance with and for the purposes as set out in the Privacy Policy.
6. The Client consents, and where applicable, will procure that its employees, contractors, officers and agents consent to Sitepass collecting, holding, using and disclosing any such personal information and sensitive information or any other User Data that is submitted by the Client to Sitepass (including via the Platform) or otherwise collected by Sitepass as a result of the use of the Sitepass Platform by the Client for all purposes specified in Sitepass’s Privacy Policy or any other purposes specified in the Terms.

Intellectual property rights

1. The Client acknowledges that Sitepass owns all of the Intellectual Property Rights (including copyright) and related rights in the Sitepass Platform, the Courses (including any Upgrades), Sitepass Material and any data and nothing in the Terms grants the Client any ownership of, or rights in respect of, any Intellectual Property Rights subsisting in the Sitepass Platform, the Courses (including any Upgrades), Sitepass Material or Data.
2. Each party acknowledges and agrees that all Existing Intellectual Property Rights in each party’s Material will remain with that party and its licensors and title will not pass to the other party
3. The Client grants to Sitepass a non-exclusive, paid-up, perpetual, irrevocable and transferable licence (with a right to sublicense) to exercise all Intellectual Property Rights in the Client Data and User Profiles:
   1. for the purposes of, or in connection with, the performance of Sitepass of the Services; and
   2. in anonymised form for the purposes of statistical analysis and providing consulting services to the User and third parties.
4. Sitepass grants the Client a non-exclusive, paid-up, non-transferable licence for the Term to use the Sitepass Materials on the Sitepass Platform content for internal and promotional purposes.
5. Nothing in the Terms confers on either party any right or interest in, or licence to use, any of the other party’s Existing Intellectual Property, except that:
   1. to the extent that any Existing Intellectual Property of Sitepass is contained in the Sitepass Platform, Materials and Courses Sitepass grants to the Client an irrevocable, royalty free, non-exclusive licence to access, possess, store, use, exploit, reproduce and/or adapt any such Existing Intellectual Property as may be reasonably required by the Client to enable it to obtain the full use, benefit and enjoyment of the rights vested in it in the Sitepass Platform, Materials and Courses; and
   2. Sitepass shall have a non-exclusive licence to access, possess, store, use, reproduce and/or adapt the Client’s Existing Intellectual Property
6. The Client agrees and understands that there is no assignment to the Client or to Sitepass of any copyright or Intellectual Property Rights in any Third Party Materials.
7. Third Party Licensors shall retain all copyright and Intellectual Property Rights in any and all of their Third Party Materials.

Suspension and disablement

1. The Client agrees that Sitepass may at any time give notice to the Client to:
   1. temporarily suspend or disable the Sitepass Platform or the Client’s access to the Sitepass Platform;
   2. permanently disable the Client’s access to the Sitepass Platform; or
   3. permanently cease operating the Sitepass Platform.
2. In circumstances where Sitepass exercises its rights under clause 12.1, Sitepass excludes all liability for any Claims made by the Client in respect of any purported Loss the Client may have suffered as a consequence.

Warranties

1. Subject to clause 13.3, Sitepass warrants and represents that:
   1. none of the Sitepass Material, nor the use in accordance with the Terms or possession of Sitepass Material by the Client, will infringe any third party’s rights; and
   2. it will use commercially available anti-virus software to prevent the inclusion of any bugs, errors, viruses, Disabling Code, or anything which adversely affects the ability of the Sitepass Platform to operate in accordance with the relevant user requirements and otherwise under the Terms.
2. Subject to clause 13.1, Sitepass does not provide any warranties or guarantees regarding the Sitepass Platform, Sitepass Apps or any of the Sitepass Materials stored on or third party softwares on or accessible from the Sitepass Platform.
3. Sitepass does not provide any representations or warranties:
   1. that the use or operation of the Sitepass Platform, Sitepass Apps or any of its functions will be uninterrupted or error-free;
   2. that the Sitepass Platform or any of its functions are suitable for any particular purpose;
   3. that the Sitepass Platform, Apps or Courses will be accurate, reliable or fit for any particular purpose; or
   4. that the Sitepass Platform, Sitepass Apps or any of the information stored on, or accessible from, the Sitepass Platform or Sitepass Apps will be compatible with any other computer software, computer hardware or other technology.

Liability

1. To the fullest extent permitted by law:
   1. the maximum aggregate liability of Sitepass for any Loss, however caused or suffered by the Client in connection with these terms or its access to or use of the Services is limited to the total amount of charges paid by the User during the previous 12 months; and
   2. any warranties, representations and/or promises relating to the Services (whether express or implied, or that arise because of applicable legislation or otherwise) including those relating to merchantability or fitness for purpose, are excluded.
2. The Client acknowledges and agrees that Sitepass:
   1. operates the Sitepass Platform and Sitepass Apps through which it provides the Services to the Client; and
   2. is not liable to the Client for any Loss arising out of, or in connection with, the Client’s choice, use or decision with respect to the Courses.
3. Notwithstanding anything to the contrary in these terms, Sitepass is and will not be liable at any time for any act or omission of any third parties in connection with, or arising out of, any purchase or use by the Clients of Services made available to the Client through the Sitepass Platform or Sitepass Apps.
4. Nothing in these terms should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of any law applicable in the jurisdiction in which the User resides that would operate to protect consumers (including, but not limited to Schedule 2 of the Competition and Consumer Act 2010 (Cth) (or any equivalent State or Territory legislation) in Australia, Consumer Guarantees Act 1993 (NZ) and Fair Trading Act 1986 (NZ) in New Zealandor the Client’s rights to make a claim in respect of any consumer guarantees or other provision of any consumer protection law applicable in the jurisdiction in which the User resides.
5. If the Client is a “Consumer” for the purposes of any law applicable in the jurisdiction in which the User resides that would operate to protect consumers, then Sitepass’ liability to the Client in relation to any claim relating to the Client’s access and use of the Sitepass Platform or otherwise arising under, or in connection with, these terms is limited, at Sitepass’ election and discretion to:
   1. if applicable, in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
   2. in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
6. To the extent permitted by law, all claims arising under or in connection with these terms must be commenced within six months of the relevant events giving rise to the claim first occurring, and all claims not commended within such period are absolutely and forever barred.
7. The limitations of Sitepass’ liability in this clause 14 and the exclusions in this clause 14 apply whether the claim is in contract, tort (including without limitation, negligence) equity or otherwise and even if Sitepass has been notified of the possibility of such Loss or damage and the Client agrees that Sitepass’ liability, if any, to the Client at law will be reduced by the extent, if any, to which the Client contributed to the Loss.
8. Without limiting clause 14.1, Sitepass is not liable in any circumstances for any Consequential Loss (however caused) suffered or incurred by the Client in connection with these terms or the use of the Sitepass Platform. This clause applies even if Sitepass knew or ought to have known that the relevant Consequential Loss would be suffered or incurred by the Client.

Indemnity

1. The Client agrees to indemnify and to keep Sitepass indemnified against any loss or damage suffered or incurred by Sitepass which arises directly, or indirectly, out of:
   1. any breach of the Terms by the Client or any of its Users;
   2. any unacceptable content being uploaded to the Sitepass Platform by, or on behalf of, a Client; or
   3. any access to, or use by the Client of the Services or any of the information stored on or accessed using the Services.

Fees & payment

1. All Fees are due and payable by the Client within thirty (30) days of invoice, unless (a) the Client is paying via credit card (as defined below). All fees are non-refundable. The Fees may be subject to an automatic adjustment increase of up to ten percent (10%) per year. The Client is responsible for paying all taxes, and all taxes are excluded from any Fees. If the Client is required by law to withhold any taxes from the Client’s payment, the Fees payable by the Client will be increased as necessary so that after making any required withholdings, Sitepass receives and retains (free from any liability for payment of taxes) an amount equal to the amount it would have received had no such withholdings been made.
2. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

Payment via credit card

1. If the Client is paying by way of credit card, debit card or other payment card (“Credit Card”), the following terms apply:
   1. Recurring Billing Authorisation. By providing credit card information and agreeing to purchase any Services, the Client hereby authorises Sitepass™ (or its chosen Payment Provider) to automatically charge Client’s credit card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) while the Client has a Sitepass Platform account for all Fees accrued as of that date (if any) in accordance with the Terms. The Client acknowledges and agrees that the amount billed and charged each month may vary depending on the Client’s and its Users’ use of the Services.
   2. Foreign Transaction Fees. The Client acknowledges and agrees that for certain credit cards, the issuer of the Client’s credit card may charge a foreign transaction fee or other charges.
   3. Invalid Payment. If a payment is not successfully settled due to expiration of a credit card, insufficient funds, or otherwise, the Client remains responsible for any amounts not remitted to Sitepass and Sitepass may, in its sole discretion, either (i) invoice the Client directly for the deficient amount, (ii) continue billing the credit card once it has been updated by the Client (if applicable) or (iii) disable or suspend the Client’s and its Users’ access to their respective Sitepass Platform accounts.
   4. Changing credit card Information. At any time, the Client may change its credit card information by entering updated credit card information via the “Settings” page https://mysitepass.com/wms/#/configuration
   5. Termination of Recurring Billing. In addition to any right to suspend or disable the Client’s or its Users’ Sitepass Platform account, the Client by terminating its Sitepass Platform account in accordance with clause 27, with immediate effect provided that all amount outstanding have been paid to Sitepass in full. Should the Client terminate its Sitepass Platform account, all Users associated with the Client will not be able to access and use any Courses licensed by the Client via the Sitepass Platform with immediate effect.
   6. Payment of Outstanding Fees. On any termination or disablement of the Client’s Sitepass Platform account, Sitepass will charge the Client’s credit card (or invoice the Client directly) for any outstanding fees for the Client’s use of the Services during the Subscription Term, after which Sitepass will not charge the Client’s credit card for any additional fees.
   7. Credit Card Surcharge. If the Client wishes to pay an invoice by credit card, a surcharge of 2.9% will apply.

Disputed invoices

1. If the Client disputes (in good faith) the accuracy of any invoice, the Client must within 20 days after receipt of the invoice, give notice of that fact to Sitepass. That notice must state the basis of the dispute and give relevant supporting details. The Client must pay the undisputed portion of the invoice and may withhold payment of the portion disputed. If the parties do not resolve the dispute within 10 Business Days of the date of the notice, the dispute shall be determined in accordance with clause 22.
2. Interest at 5 per cent per annum above Sitepass current bank overdraft rate calculated daily shall be payable on any moneys outstanding by the Client to Sitepass from the date payment is due until the date payment is received by Sitepass but without prejudice to Sitepass’ other rights and remedies in respect of non-payment or past due payment. The interest shall be payable by the Client on demand by Sitepass.
3. All amounts, including any Fees, interest or other amounts payable under the Terms, shall be paid free and clear of, and (except to the extent required by law or permitted by clause 18.1) without any deduction or withholding on account of, any taxes.

Sales tax

1. Unless otherwise expressly stated in writing, all amounts payable by the Client in connection with these terms do not include an amount for Sales Tax.
2. If Sales Tax is payable on any supply made by Sitepass under these terms, the Client must pay to Sitepass, in addition to and at the same time as the payment for the supply, an amount equal to the amount of Sales Tax on the supply.
3. Where the Client is required by these terms to reimburse or indemnify Sitepass for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Sitepass will be entitled to claim for the Loss or amount incurred and increased by the amount of any Sales Tax payable by Sitepass in respect of the reimbursement or payment.
4. This clause does not merge on completion or termination of the Client’s Sitepass Platform account.

Privacy

1. Each party must comply with all applicable privacy laws in respect of all Personal Information and sensitive information (as such terms are defined in the Privacy Act 1988 (Cth) collected, used, disclosed and otherwise handled by them under or in connection with the Terms.
2. The Client must ensure that where it submits or provides Personal Information, sensitive information or Data to Sitepass regarding another person, that it has all necessary consents or otherwise required under any applicable law necessary to be able to submit that Personal Information, sensitive information or Data to Sitepass and for Sitepass to be able to collect, hold, use and disclose the relevant Personal Information, sensitive information or Data as contemplated in the Privacy Policy and the Terms.
3. Online payments are handled by third party payment providers who have a contract with Sitepass. The Client acknowledges and agrees that where Personal Information is collected in relation to any payment by the Client for the Services, that Personal Information will be collected, held, used and disclosed by Sitepass for that purpose.
4. To the extent that the Client makes personal or sensitive data/information about a User available by way of the Sitepass Platform, the Client in accordance with its Privacy Policy:
   1. warrants and represents that it has obtained all necessary consents or otherwise from the User to disclose such Personal or sensitive Information or Data/information and to allow Sitepass to collect and store such Personal and sensitive Information or Data on the Sitepass Platform;
   2. to the extent permitted by law, releases Sitepass and fully discharges Sitepass from any Loss or liability it may suffer as a result of the Sitepass Platform collecting and storing any User Data or Personal or sensitive data/information supplied by the Client;
   3. indemnifies Sitepass from any Loss or liability it may suffer as a result of it collecting and storing personal and sensitive information supplied by the Client about a User without the User’s consent; and
   4. acknowledges and agrees that if Sitepass receives a request from a User to terminate or de-register its account, User Profile or any other sensitive or Personal Information it is storing about that User, Sitepass will immediately comply with its legal obligations to comply with this request.
5. The Client warrants and represents to Sitepass that the Client has and will maintain a privacy policy that complies with the Privacy Laws.
6. Sitepass must handle all Data and Personal Information and sensitive data/information that is disclosed to Sitepass by the Client or any User under the Terms consistent with the Privacy Policy and all applicable privacy laws.
7. Sitepass may also share the Client’s or any User’s personal information with trusted third parties including:
   1. legal and other professional advisers, consultants, and professional experts;
   2. financial institutions (to the extent that such disclosure is required for the purpose of collection activities);
   3. service providers contracted to Sitepass in connection with provision of the products and services such as providers of IT services and customer relationship management services; and
   4. analytics and search engine providers that assist Sitepass in the improvement and optimisation of the Sitepass Platform.
8. Sitepass will ensure there is a contract in place with the categories of recipients listed above which include obligations in relation to the confidentiality, security, and lawful processing of any personal data shared with them.
9. To the extent applicable, Sitepass agrees to comply with the PECR in relation to Data forming part of electronic communications.

Confidentiality

1. Each party (Recipient) must not (and shall procure that its employees, service providers, visitors and other contractors do not), disclose or permit disclosure of the Confidential Information of the other party (Discloser) to any third party except:
   1. with the Discloser’s prior written consent;
   2. to the extent required by law;
   3. to its employees, contractors, service providers, officers, professional advisers or other agents (Agents) on a need to know basis for the purposes of the Terms;
   4. information which is publicly available without any cause attributable to the disclosing party; or
   5. to the extent the other party has given its prior written consent to such disclosure.
2. The Recipient will ensure that the Agents keep the Confidential Information confidential on the terms provided in this clause.
3. If the Recipient becomes aware of a suspected or actual breach of this clause by the Recipient or an Agent, the Recipient will immediately notify the Discloser and take reasonable steps required to prevent or stop the suspected or actual breach.
4. The Recipient will only use the Discloser’s Confidential Information for performing its obligations or exercising its rights under the Terms.
5. The Recipient will return or destroy (at the Discloser’s direction) all Confidential Information when it is no longer required by the Recipient.
6. Notwithstanding anything to the contrary, and subject to the Privacy Policy, Sitepass has the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Sitepass Platform and related systems and technologies (including information concerning Client Data and data derived therefrom), and Sitepass will be free at all times, including after the Client’s access and use ceases, to (i) use such information and data to improve and enhance the Sitepass Platform and for other development, diagnostic and corrective purposes in connection with the Sitepass Platform and (ii) disclose such data solely in aggregate or other de-identified form in connection with the Sitepass business. No rights or licenses are granted except as expressly set forth in the Terms or the User Terms.
7. Sitepass does not screen the Client Material and all use of the Client Material by the Client is at the Client’s own risk. Sitepass has no responsibility or liability for such use. In particular, no review or posting or appearance of the Client Material on the Services or though the Services is intended to act as an endorsement or representation that any Client Material is free of violation of any copyright, privacy or other laws or will suit a particular purpose or be accurate or useful.
8. If the Client believes that the Client Material violates any law, or is inaccurate or poses any risk whatsoever to a third party, the Client must take such steps that the Client deemed necessary to remove the Client Material from the Sitepass Platform and immediately notify Sitepass. If the Client believes that any Client Material, originating from a third party, or any Sitepass Material violates any laws, including any copyright laws, the Client must immediately notify Sitepass via this Link.

Dispute resolution

1. Before taking any court action, a party must use their best efforts to resolve any dispute under, or in connection with, the Terms through good faith negotiations.
2. If the parties are unable to resolve a dispute through good faith negotiations, either party may refer the dispute to mediation in accordance with the alternative dispute resolution processes and procedures applicable in Australia. The parties agree that the ACICA Mediation 2007 Rules (Rules) set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of those Rules are incorporated by reference in the Terms.
3. If the parties fail to settle any dispute in accordance with clause 22.2, the parties may agree to submit the dispute for resolution to the non-exclusive jurisdiction of the courts of Western Australia, Australia.
4. Each party must, to the extent possible, continue to perform its obligations under the Terms during a dispute until the resolution of such dispute.
5. Nothing in this clause 22 is to be taken as preventing any party to a dispute from seeking interlocutory relief in respect of such dispute.

Variation

1. From time to time, Sitepass may update the Terms to clarify our practices or to reflect new or different practices, such as when Sitepass adds new features, or for other reasons. Sitepass reserves the right in our sole discretion to modify and/or make changes to the Terms at any time. If Sitepass makes any material change to the Terms, Sitepass will notify the Client using prominent means, such as by email notice sent to the latest email address that Sitepass has on record for the Client, or by posting a notice through the Sitepass Platform. Modifications will become effective on the day they are posted or otherwise published, unless stated otherwise.
2. The Client’s continued use of the Sitepass Platform after changes become effective will mean that the Client accepts those changes. Any revised Terms will supersede all previous Terms.

General

1. Nothing in the Terms constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
2. The Terms will be construed and interpreted in accordance with the laws of the State of Western Australia, and each party submits to the non-exclusive jurisdiction of courts of that jurisdiction.
3. Sitepass may assign, novate or otherwise deal with its rights under the Terms at any time effective immediately upon Sitepass notifying the Client of the assignment or novation.
4. The Terms constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
5. Unless otherwise specified in the Terms, in the event of an inconsistency between any of the documents comprising the Terms, the following order of precedence shall apply to the extent of the inconsistency:
   1. the Client terms and conditions and Initial Term (if applicable) forming the Terms;
   2. the User Terms;
   3. the Support Service Levels;
   4. the Platform Service Levels;
   5. Privacy Collection Statement;
   6. the Privacy Policy;
   7. the Security Policy;
   8. the Website Terms and Conditions; and
   9. Acceptable Use Policy
6. If any provision of the Terms is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of the Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
7. No failure to exercise or delay in exercising any right given by or under the Terms to a party constitutes a waiver and the party may still exercise that right in the future.
8. The Client agrees and acknowledges that Sitepass may subcontract the performance of any of its obligations or the exercise of any of its rights under the Terms to any person without the consent of the Client and on such terms and conditions as Sitepass deems fit from time to time.
9. Any clause that is expressed to survive or which by its nature, is intended to survive termination or expiry of the Terms, survives termination or expiry.
10. If any part or any provision of the Terms are held or found to be vague, uncertain, void, invalid or otherwise unenforceable, it will be deemed to be severed to the extent that it is void or to the extent of voidability, invalidly or unenforceability but the remainder of the Terms will remain in full force and effect.
11. Each party shall do all things (including executing all documents) necessary to implement and to carry out its obligations under the Terms.

Penetration test

1. Sitepass conducts annual penetration tests as part of its security calendar. As a shared platform, Sitepass conducts penetration tests in a controlled environment, this test is always monitored by the Sitepass infrastructure team to ensure no impact to any Client or Personnel. As a multi-tenanted platform unauthorised penetration testing is limited to the Sitepass Platform.
2. The penetration tests are conducted with one of two external security providers and are a central component in our certification.
3. For security and confidential reasons, Sitepass does not divulge or share any information or penetration test results.

Force majeure

1. Neither party (Affected Party) will be liable for any delay or for any failure to fulfil its obligations under these terms as a consequence of a Force Majeure Event.
2. The Affected Party shall:
   1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the nature, effects and expected duration of the Force Majeure Event; and
   2. use all reasonable endeavours to continue to perform its obligations as required under the terms of these terms and to mitigate the effects of the Force Majeure Event on the performance of its obligations under these terms.

Term, termination and suspension applicable for clients with an initial term

1. The Terms apply to the Client from the date it signs the Proposal presented by Sitepass and on the date which it registers a Sitepass Platform account until the date the account is terminated or de-registered.
2. Sitepass reserves the right to immediately suspend or terminate our provision of the Services to the Client, or access to the Sitepass Platform at any time if:
   1. the Client breach the Terms; or
   2. Sitepass determines that the Client has breached the Terms or any relevant law, or the Client has engaged in any conduct that Sitepass reasonably considers is inappropriate or unacceptable.
3. Termination or de-registration of the Sitepass Platform account does not affect any accrued rights or liabilities of either Sitepass or the Client nor does it affect any provision which is expressly or by implication intended to operate after termination.
4. Without limiting the operation of clauses 16, 17 and 18, on termination:
   1. Sitepass may immediately stop providing the Service to the Client; and
   2. the Client must immediately pay any and all outstanding invoices or any charges or fees incurred as a result of the Client’s access and use of the Service before the date of termination.
5. Either party may immediately terminate this Agreement by notice in writing to the other party if:
   1. any insolvency event occurs in relation to the other party, if the other party is wound up, dissolved, becomes insolvent or has a liquidator, provisional liquidator, administrator, receiver, manager or receiver and manager appointed; or
   2. the other party:
      1. commits a material breach of this Agreement that is incapable of remedy; or
      2. commits a material breach of this Agreement but does not remedy the breach within 30 days of receiving written notice of the breach from the other party.
   3. If both parties agree in writing during the discovery workshop that scope of works object of this Agreement will not be able to be delivered by either or one of the Parties.

Consequences of termination

On termination or expiry of this Agreement

1. each party shall immediately provide to the other, all Confidential Information, or other information relating to the Services, this Agreement or the other party which it holds; and
2. the Client shall pay to Sitepass all Charges payable up to the date of termination or expiry.

Effect of termination

Termination or expiry of this Agreement is without prejudice to any other right, power or remedy under this Agreement, at law, or otherwise, that either party has in respect of a default by the other party and shall not terminate any provisions of this Agreement which by their nature should survive termination.

Expiry and renewal

Unless either party notifies the other by no later than 14 days before the end of the current Initial term, this Agreement (including provision of the Hosted Services or the Licence, as applicable) will automatically renew at the end of the current term for a further period of the same duration as the original Period as applicable to the Initial term. This clause will then apply on a repeating basis.

Termination for cause

Either party may terminate either or both this Agreement and the Licence with immediate effect by written notice to the other party if:

1. the other party remains in unremedied breach of any provision of this Agreement (other than failure to pay) after 14 days notice from the terminating party specifying reasonable details of the breach;
2. the other party fails to make any payment when due under this Agreement; or
3. the other party is, or becomes, the subject of any Insolvency Event.

Force Majeure

Where a party is required under this Agreement to perform an obligation or do any act or thing by a designated time or date (except an obligation to make a payment) (Obligation), the party is not liable for any delay in performing, or failing to perform, an Obligation if the delay or failure arises from Force Majeure. A party who claims Force Majeure must give the other party prompt notice of the Force Majeure with reasonably full particulars and an estimate of the extent and duration of its delay or inability to perform and use all reasonable diligence to remove the Force Majeure as quickly as practical. If the delay continues beyond 10 business days after the above notice is given, then either party may terminate this agreement by giving 5 business days written notice to the other.