This agreement (User Agreement, or Agreement) contains the terms, conditions and provisions (Terms and Conditions) upon which You (You, or the User) may access and use the App, including all Content and all information made available to You through the App by Xperior or any other party.
1. Definitions —
App means the contractor safety and compliance applications developed and managed by Xperior, including the web applications hosted at www.ipro.net and www.iprolive.com and the iPRO mobile applications available on the Apple App Store and Google Play.
App Suspension has the meaning given in clause 9.2.
Content means all information of whatever kind (including blogs, articles, comments, photos, logos, videos, audio, images etc.) published, stored or sent on or in connection with the App.
Hiring Client means iPRO subscribing hiring clients and contractor-operators.
Intellectual Property means any confidential information, copyright, trademarks, service marks, designs, patents, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields.
Intellectual Property Rights means any present or future rights conferred by statute, common law or equity in any part of the word in relation to any Intellectual Property.
Representative means an employee, sub-contractor, supplier or other related party that You have authorised to use the administration features of the App.
Xperior refers to Xperior Group Pty Ltd (ACN 160 608 195) and its related entities (hereinafter referred to as Xperior, Us, We or Our).
2. Terms & Conditions —
- If You do not agree to be bound by the Terms and Conditions of this Agreement, do not use or access Our services.
- These Terms and Conditions take effect from the date when you click on the “I Accept” button during the registration process. The Terms and Conditions will remain operative until either you or Xperior terminate your use of the App.
- These Terms and Conditions may be modified and amended by Xperior at any time without prior notice to You.
- You agree that, on and from the date of any modification or amendment to these Terms and Conditions, You will be bound by the modified or amended Terms and Conditions. Your use of this App constitutes acceptance of these Terms and Conditions, which apply to the exclusion of any inconsistent terms and conditions which may appear on any other documentation or correspondence between Xperior and You.
3. Access & Use by You —
- Our services are available only to individuals and organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to temporarily or indefinitely suspended Users.
- Provided You pay to us the required Fees as and when they fall due, we grant You a non-exclusive, revocable,non-transferable limited licence, to:
- permit a Representative (interchangeably referred to as an Authorised User) to access and use the App.
- The App and software (if any) made available through the App will only be made available to You (and Authorised Users) as a hosted service.
4. Authorised Users —
- You may permit an Authorised User to access and use the App subject to these Terms and Conditions. Nothing in the Terms and Conditions operates to limit the rights or obligations of each of You and Us under this Agreement.
- You acknowledge that We have no control over what You, any Authorised User or other third party does with or on the App, and the transactions that are made using the App.
- We are not a party to any transaction You or an Authorised User enter into with each other or between themselves using the App. Accordingly (and with the exception of liability that cannot be excluded by law), we accept no liability for any Claims or demands by any Authorised User relating to this Agreement, the Terms and Conditions, the App, transactions made using the App or the User Data.
- Where You permit an Authorised User to access or use the App under clause 4.1 above, then You will:
- ensure that the Authorised User complies with these Terms and Conditions; and
- indemnify Us against any losses,
- liabilities, damages or penalties (inclusive of reasonable legal fees) suffered or incurred by Us as a result of any:
- breach of this Agreement or the Terms and Conditions by an Authorised User (or its employees, contractors, agents or officers); or
- Claim by an Authorised User relating in any way to this Agreement, the Terms and Conditions, the App, the transactions made using the App or the User Data.
- You will promptly notify Us of any breach of the Terms and Conditions by an Authorised User that You become aware of, and do all that is reasonably necessary (at Your cost) to halt any such breach. You will also provide Us with reasonable assistance were we elect (in Our discretion) to take legal action against an Authorised User or other third party to protect or enforce Our rights under this Agreement or the relevant Terms and Conditions.
5. Password Policy & Account Access
- Your use of certain portions of this App requires the authentication of Your identity through the provision of a username and password.
- Xperior cannot and does not confirm each User’s purported identity. You agree that You are solely responsible for:
- maintaining the strict confidentiality of your usernames and passwords;
- all statements made and acts or omissions that occur while your username and password are being used;
- subject to clause 4, not allowing others to use Your username to access the App;
- any losses that may be incurred or suffered as a result of Your failure to maintain the confidentiality of Your usernames and passwords; and
- promptly informing Xperior in writing of the need to deactivate a username resulting from actual or potential security concerns.
- You release Xperior (and our officers, directors, agents, subsidiaries, joint ventures, suppliers and employees) from claims, demands and damages (actual and consequential) (each a Claim) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with a Claim that arises from Our inability to confirm User identity other than such Claims that result solely and directly from Xperior’s breach of this User Agreement, gross negligence or wilful misconduct.
6. User Data —
- The App may offer features that allow You and Authorised Users to upload data or information (of any kind) to the App (User Data), and may involve the transmission to and from You of User Data.
- You consent to the transmission by electronic means of User Data through the App, and such consent will be effective at all times that You or an Authorised User use the App.
- You are solely responsible for Your Information. You certify that Your Information is correct and complete to the best of your knowledge. You confirm that you have all rights, power, and authority necessary to post Your Information to the App.
- Your information and your activities on the App shall not:
- be false, inaccurate or misleading;
- be fraudulent, including impersonation of any person or entity, misrepresenting an affiliation with another person, entity or association, or concealing your identity from Xperior for any reason;
- infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- violate any law, statute, ordinance or regulation.
- Upon transmission of Your User Data, and solely to enable Xperior to use the User Data in offering the contractor safety and compliance management service offered by iPRO, You agree to grant Us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free right to exercise the rights You have in Your User Data.
7. Intellectual Property in the App —
- We retain all right, title, copyright, patent, trademark, trade secret and all other proprietary interests to the App (and related documentation) and any modifications or derivatives thereof. Your sole rights to the App are set out at clause 4.1.
8. Fees & Payment Terms —
- Our fees for the use of the App are set out in the My Account section of the App (Fees). The Fees, specified as being either a fixed amount per month (which will be due and payable by You at the start of each month) or an annual fee (which will be due and payable by You up front).
- You will make all payments without deduction or set off, and will also pay to us any applicable GST and any other applicable taxes assessed on this Agreement, or the transactions the subject of this Agreement, when making such payment. The payment method is by credit card.
- Should You fail to pay the Fees, then we may suspend Your (and Authorised Users) rights to access and use the App until such time as all overdue Fees are paid in full.
- The Fee is completely non-refundable (for the avoidance of doubt, this will include but not limited to the case where a User’s account is downgraded to a lower subscription plan prior to that subscription period’s expiry date or terminated under these Terms and Conditions).
- We may change our Fees from time to time, but such changes will not apply to You until the next monthly or annual renewal of Your subscription. No refunds or credits will be extended.
9. App Availability —
- You agree to Us modifying the App (including its functionality, data formats and other matters) and from time to time, so long as any such modifications do not substantially impact upon Your ability to continue to use the App in the manner contemplated by this Agreement.
- We may suspend access to and use of the whole or any part of the App, where we have a reasonable basis to believe that:
- there is a detected or suspected denial of service attack or other attack on the App (or other event that we determine, in our reasonable discretion, may create a risk to the App, or to You, an Authorised User or other third party, if the App was not suspended);
- You are in breach of this Agreement;
- You have failed to pay the Fees at the start of the relevant subscription period;
- an Authorised User is in breach of the relevant Terms and Conditions (in this case the suspension will be limited to that Authorised User only); or
- access to or use of the App is prohibited by law in a relevant jurisdiction, or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons, (collectively, App Suspension).
- We will use reasonable efforts to ensure that the period of suspension is limited to the extent that is required to specifically address such issue or non-compliance and only for such period as the issue or noncompliance persists.
- We provide the App on an “as is” and “as available” basis. In particular, we disclaim all other warranties and representations of any kind, whether express or implied, with respect to this Agreement, or the App including, without limitation, that the App is error-free or that the App will be continuously available, or any implied warranties of merchantability and fitness for a particular purpose, in each case to the extent permitted by law. Our liability in relation to any warranty or condition implied into this Agreement by law which cannot be excluded, is limited to one or more of the following at our option:
- in the case of goods, the replacement or repair of the goods or payment of the cost of having the goods replaced; or
- in the case of services, the supply of the services again or payment of the cost of having the services supplied again.
10. Termination —
- We may terminate a User’s account at any time with or without cause, including (but not limited to) circumstances where You:
- breach this Agreement;
- in our reasonable opinion, are, or likely to become, insolvent; or
- You have failed to pay the Fees by the due date.
- On expiry or termination of this Agreement You will:
- pay all amounts owed to us until the date of termination or expiry;
- You acknowledge that Your (and Your Authorised Users) rights to access and use the App will cease.
- Termination or expiry of this Agreement will not affect any accrued rights or remedies either party may have.
11. Limitation of Liability —
- In no event shall Xperior, its subsidiaries, officers or employees be responsible or liable in relation to the information or documents uploaded by You, Your Authorised Users, or Your representatives on the App including information or documents created by third parties.
- You represent and warrant to Xperior that You have the requiApp authority and permission to upload such information and documents onto the App and that You are not in breach of any intellectual property rights or confidentiality obligations in respect of the information and documents uploaded onto the App. You indemnify and hold Xperior, and its parent, subsidiaries, affiliates, officers, directors, agents, and employees, representatives, shareholders, servants, attorneys, predecessors, successors and assigns (Xperior Group) harmless from any claim by third parties in respect of the information or documents uploaded by You onto the App including but not limited to any claims for breach of intellectual property or breach of confidentiality.
- You are solely responsible for ensuring that the App:
- is suitable and adequate for Your requirements; and
- complies with all laws and regulations applicable to You and Your business.
- You agree to indemnify and hold Xperior Group harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your (or an Authorised User’s) breach of this User Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
- You represent and warrant that:
- You are at least 18 years of age and that you possess legal right and ability to enter into these Terms and Conditions;
- all of the information provided by You during the registration process is true and accurate and correct.
- Except as expressly set forth in these Terms and Conditions and to the maximum extent permitted by law, Xperior Group hereby expressly disclaims all express and implied warranties in relation to the App. To the extent permitted by law, Xperior Group does not warrant, guarantee or make any representations or warranties whatsoever, express or implied, or assume any liability to You regarding:
- the use or the results of the use of the App, including without limitation any securing of contracts from organisations to whom the information is submitted, results based on use of the App or information or any delay or loss of use of the App; or
- system performance and effects on or damages to software and hardware in connection with any use of the App.
- Except for liability arising under or in relation to clauses 4.4, 11.11, 12 or 14.3 of this Agreement:
- neither party shall be liable for any indirect or consequential loss, lost data or lost profits, or costs of procuring substitute goods, software or services, however arising, even if it has been advised of the possibility of such damages; and
- the liability of each of You and us for damages in relation to this Agreement whether in contract, tort (including without limitation negligence), statute or otherwise, for all claims in the aggregate shall be limited to the Fees actually paid to us in the [twelve (12) months] immediately preceding the act or omission most closely linked with the most recent claim.
- The Competition and Consumer Act 2010 (Cth) guarantees certain conditions, warranties and undertakings, and gives You other legal rights, in relation to the quality and fitness for purpose of consumer goods or services sold in Australia. These guarantees cannot be modified nor excluded by any contract. Nothing in these Terms and Conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Competition and Consumer Act 2010 (Cth) and other laws which cannot be modified or excluded.
- Except as expressly set out in this Agreement and the Competition and Consumer Act 2010 (Cth), Xperior Group makes no warranties or other representations under these Terms and Conditions. Xperior Group’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.
- You acknowledge that the App is not intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the App could lead directly to death, personal injury, or severe physical or environmental damage (High Risk Activities). Accordingly, we specifically disclaim any express or implied warranty of fitness for High Risk Activities and will not be liable for any claims, loss or damage arising from the use of the App in such circumstances.
- You indemnify Us against any amount we are finally ordered to pay to a third party by a court of competent jurisdiction (or settlement agreed by You) which arises from a claim alleging that our use of the any material or information provided by You or an Authorised User to us under this Agreement or the relevant Terms and Conditions (inclusive of the User Data) infringes the Intellectual Property Rights or other rights of that third party
12. Verification Service Disclaimer —
- Xperior Group (including through one or more third party suppliers or contractors) may perform review and verification of Your information to assist Hiring Clients in determining Your compliance with specified regulatory and/or Hiring Client requirements. Our review and verification results are provided as guidance to assist Hiring Clients in reviewing Your compliance with specified regulatory standards and/or Hiring Client requirements, but are not intended, and should not be relied upon, to ensure compliance with such regulations or requirements. Each User is solely responsible for ensuring its own full compliance with all applicable Hiring Client, state, and federal regulations and requirements.
- You are solely responsible for any and all information and documentation (Contractor Documentation) submitted to Xperior by or on behalf of You. By submitting Contractor Documentation into the App, You represent and warrant that:
- You own or have the necessary licenses, rights, consents, and permissions to use and authorize Xperior and its subscribers to use all patent, trademark, trade secret, copyright or other proprietary rights in and to such Contractor Documentation to enable inclusion and use of such Contractor Documentation in the manner contemplated by the App and User Agreement;
- the use of such Contractor Documentation by Xperior Group and its suppliers and contractors will not infringe or violate any proprietary rights, intellectual property rights and/or other rights of any third party; and
- You have obtained the consent or permission of each identifiable person in the Contractor Documentation to submit his or her data to Xperior for use in connection with iPRO services.
- Xperior Group (including through one or more third party suppliers or contractors) may perform reviews of Your self-reported Workers’ Compensation Rate (or equivalent) information against specified information reported on the Annual Premium Rate Calculation (or equivalent) documentation provided by You. These services and any results provided in connection with these services are provided on an “as is” basis without warranty of any kind, and subject in all respects to the Terms and Conditions of this Agreement.
- The App may interface with third party Apps for data and information verification. Specifically, we exclude any liability for the content, accuracy and availability of any such Apps.
13. Confidentiality & Privacy —
- Xperior Group will use reasonable precautions to maintain the confidentiality of the information You have provided to Xperior and information you have created, input or developed in connection with Your use of the App, but You hereby acknowledge and agree that there can be no assurance that any information provided by You through the App, or any communication through e-mail will remain secure.
- You acknowledge that Your personal information (and other relevant information) will be disclosed to organisations who may seek to use Your services (and who may contact You in this regard), and to Xperior Group’s employees, representatives, officers, agents, and affiliates.
- To the maximum extent permitted by law, You release and Indemnify Xperior Group from and against any improper use or disclosure, of the information so submitted to such organisations.
14. General —
- Except as explicitly stated otherwise, any notices shall be given to Xperior by email to firstname.lastname@example.org and to You by email to the email address you provide to Us during the registration process (in Your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Xperior during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
- Nothing in this Agreement will deem You, or any person engaged by You, as our employee, servant or agent.
- You will comply with all laws and restrictions and regulations of any relevant government or regulatory body in the access to and use of the App.
- This Agreement is governed by and must be construed in accordance with the laws of the State of Victoria. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters or things arising out of this Agreement.
- If any provision of this User Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions, together with a valid, enforceable replacement provision, shall be enforced.
- If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.