This sensor solution agreement (Agreement) is entered into by and between SafetyCulture Pty Ltd ABN 16 089 180 049 of 221 Sturt St, Townsville City QLD 4810 (SafetyCulture, “us,” “we,” or “our”) and the person or entity agreeing to this Agreement (“you”).
Thank you for choosing to use our sensor software (Sensor Services) and related hardware (Sensor Products). Sensor Services means the provision of the online Subscription Service known as Sensor Services available through the SafetyCulture Platform, and as described in the Service Description at https://safetyculture.com/sensor-terms-and-conditions/. Sensor Products means the hardware products that are required in order for you to receive the Sensor Services, as described in Appendix 3 (Hardware). By ordering the Sensor Services and Sensor Products in accordance with section 7, you agree to the terms and conditions set out in this Agreement (Terms). If you do not agree with these Terms, do not execute this Agreement and stop using the Sensor Services and Sensor Products immediately.
If you also use any of our other services, the separate terms and conditions that apply to those services will apply to you in addition to these Terms which will continue to apply to your use of the Sensor Products and Sensor Services.
We may offer certain Sensor Products and Sensor Services to you, with or without charge, along with access to pre-release and beta products (Trial Services). Your use of Trial Services is subject to any additional terms that we specify and is only permitted for the period designated by us. We determine eligibility for Trial Services at our sole discretion. We may terminate your right to use Trial Services at any time and for any reason. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to Trial Services, including any support and maintenance, warranty, and indemnity obligations.
If we charge you for Trial Services, the Fee will be set out at the time of ordering in accordance with section 7 or otherwise set out on the Site.
If we provide you with a free trial of the Sensor Products and Sensor Services for a specified period (Trial Period), then any use of the Sensor Products and Sensor Services after the Trial Period has ended may be subject to additional charges.
Subject to these Terms, SafetyCulture shall make the Sensor Products and Sensor Services available to you solely for your internal business operations.
The Terms of this Agreement shall also apply to any updates and upgrades subsequently provided by SafetyCulture to you for the Sensor Products and Sensor Services. SafetyCulture shall host the Sensor Services and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Sensor Products and Sensor Services from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Sensor Products and Sensor Services.
Unless permitted by law, as otherwise expressly permitted in these Terms, or as separately agreed between you and us, you must not (nor may you authorise any third person to): (i) rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Sensor Products and Sensor Services to a third party; (iii) reproduce, modify, adapt, create derivative works of, the Sensor Services; (iv) reverse engineer, disassemble, decompile, transfer, exchange or translate the Sensor Products and/or Sensor Services or otherwise seek to obtain or derive the source code or API; (iv) remove or tamper with any disclaimers or other legal notices; (v) combine the whole or any part of the Sensor Products and Sensor Services with any other software, data or material; (vi) store or use any part of the data you do not own in an archival database or other searchable database. You must promptly notify us in writing of any breach of these conditions of use.
You agree that all intellectual property of any sort in or associated with the Sensor Products and Sensor Services, including all code, libraries, programs, software, documentation, content, databases, systems, logos and trademarks are owned either directly by us or by our licensors. You are not authorised to use any of our intellectual property except as is expressly allowed under these Terms.
Notwithstanding anything in these Terms to the contrary, SafetyCulture has no support, warranty, indemnification or other obligation or liability with respect to your combination, interaction or use of third party products and services with our Sensor Products and Sensor Services, or your modifications to the Sensor Products and Sensor Services (“Your Modifications”). You must indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Sensor Products and Sensor Services) or your breach of this Section. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of SafetyCulture at your expense.
We will defend you against any claim brought against you by a third party alleging that the Sensor Products or Sensor Services, when used as authorised under this Agreement, infringe a third parties’ intellectual property rights (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by us, arising out of a Claim, provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. If your use of the Sensor Products or Sensor Services is (or in our opinion is likely to be) materially reduced, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our sole discretion: (i) procure a license for your continued use of the Sensor Products or Sensor Services in accordance with this Agreement; (ii) substitute a substantially functionally similar Sensor Product or Sensor Service; or (iii) terminate your right to continue using the Sensor Products or Sensor Services and refund any prepaid amounts for the terminated portion of the Sensor Products or Sensor Services. Our indemnification obligations above do not apply: (1) if the Sensor Products or Sensor Services are modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (2) if the Sensor Products or Sensor Services are used in combination with any non-SafetyCulture product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of the Sensor Products or Sensor Services; (4) to any Claim arising as a result of (i) Your Modifications or (ii) any third-party deliverables or components contained with the Sensor Products or Sensor Services; or (5) if you settle or make any admissions with respect to a Claim without our prior written consent.
This Section shall only apply if and to the extent that: (i) the EU General Data Protection Regulation 2016/679 ("GDPR"); and/or (ii) the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the GDPR apply to any of the data with which you use the Sensor Products or Sensor Services and/or No Charge Services. If this Section applies, the provisions of Appendix 1 (Data Protection Compliance) and Appendix 2 (Data Processing Agreement) shall apply.
You may need to register for an account in order to access or receive any Sensor Services and Sensor Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
To order the Sensor Products and Sensor Services you must either:
a) complete the online order page (Online Order) located on the Site which contains details of: (i) the Sensor Services and Sensor Products being ordered; (ii) the applicable fees (Fees); (iii) the term of the Agreement (Term); (iv) the applicable form of payment; and (v) your domain names; or
b) execute a quote or order form (Quote/Order Form) provided by SafetyCulture which specifies:
i. the Sensor Services;
ii. the Sensor Products;
iii. the period of the agreement (Term); and
iv. the applicable fees for the Sensor Services and Sensor Products,
all of which are subject to these Terms.
A reference to an Order in these Terms includes an Online Order and Quote/Order Form.
Sensor Products and Sensor Services are provided for a set Term as specified in your Order. Except as otherwise specified in your Order, all subscription terms will automatically renew for periods equal to your initial Term (and you will be charged at the then-current rates) unless you cancel your subscription in writing. If you cancel, any subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
If SafetyCulture does not want the Sensor Products and Sensor Services Term to renew, then it will provide you written notice to this effect. This notice of non-renewal will be effective upon the conclusion of the then current Term.
You agree to pay all Fees in accordance with your Quote/Order Form. Unless otherwise specified in your Quote/Order Form, you will pay all amounts in in the offered currency (as updated from time to time) at the time you place your Quote/Order Form. All amounts are non-refundable, non-cancellable and non-creditable.
In addition to the Fees payable for the relevant Sensor Products and Sensor Services, you must pay to SafetyCulture shipping charges as included in the Quote/Order Form and based on the cost incurred by SafetyCulture to send the Hardware to your nominated locations.
In making payments, you acknowledge that you are not relying on future availability of the Sensor Products and Sensor Services beyond the current agreed Term or any upgrades or feature enhancements. If you add End Users during your Term, we will charge you for the increased number of End Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional End Users, and unpaid fees, as applicable.
You must elect one of the following billing options when registering and placing an order for each of the Sensor Products and Sensor Services:
- Monthly Plan. If you select this option, you will pay for the Sensor Products and Sensor Services on a monthly basis. We will provide you with the monthly rate for the Sensor Products and Sensor Services in your Quote/Order Form and will use this rate to calculate your monthly charges.
- Annual Plan. If you select this option, you will pay for the Sensor Products and Sensor Services on an annual basis. We will provide you with the annual rate for the Sensor Products and Sensor Services in your Quote/Order Form and will use this rate to calculate your annual charges.
Fees for Orders where you are paying with a credit card, debit card or other non-invoice form of payment are due the month prior to which you received the Sensor Products and Sensor Services. For credit cards, or debit cards, as applicable: (i) we will charge you for all applicable Fees when due and (ii) these Fees are considered overdue after the end of the month during which you received the Sensor Products and Sensor Services.
Where we issue an invoice for payment rather than direct debit, payment shall be due thirty (30) days after the invoice date and shall be considered overdue after such date.
We may enable other forms of payment by making them available on the Site. These other forms of payment may be subject to additional terms which you may have to accept prior using the additional forms of payment.
Overdue payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal or collection fees) incurred by us in collecting such delinquent amounts, except where such overdue amounts are due to our billing inaccuracies.
You will have thirty days to pay overdue Fees. If you do not pay overdue Fees within thirty days, we will automatically suspend you use of the Service. The duration of this suspension will be until you pay all outstanding Fees.
If you have a monthly billing plan or an annual billing plan commitment, we will continue to charge you Fees during suspension for non-payment and you must pay all outstanding Fees in order to resume use of the Services.
If you remain suspended for non-payment for more than sixty days, we may terminate this Agreement.
You are responsible for any duties, customs fees, or taxes (other than our income tax) associated with the sale of the Sensor Products and Sensor Services, including any related penalties or interest (Taxes), and you will pay us for the Services without any reduction for Taxes. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any Taxes from payments to us, you must provide us with an official tax receipt or other appropriate documentation to support such payments.
You acknowledge that the terms of agreement with your respective telecommunications network provider (Network Provider) will continue to apply when using the Sensor Services. As a result, you may be charged by the Network Provider for access to network connection services for the duration of the connection while accessing the Sensor Services or any such third party charges as they may arise. You accept responsibility for any such charges that arise.
In order to use the Sensor Products and Sensor Services, you must purchase and install the hardware set out in Appendix 3 (Hardware). You must follow any installation instructions we provide to you when you install the Hardware.
You are responsible for making any changes to your systems, required to be able to install the Hardware, and for any calibration of the Hardware required to integrate the Hardware with your systems and for any ongoing use of the Sensor Products and Sensor Services.
Any information, insights, statistics, measurements or reports (Data) produced or generated by the Sensor Products and Sensor Services remain our sole and exclusive property. Your use of the Sensor Products and Sensor Services does not grant or transfer you any rights, title or interest in the Data, except as set out in these Terms.
We grant you a limited licence to copy, transmit, store, analyse and back up or otherwise access the Data, during the Term solely for you to:
● analyse and diagnose problems with your equipment, systems or procedures;
● create reports based on analysis conducted by or on the Sensor Products and Sensor Services; and
● use any other Sensor Products and Sensor Services we provide.
You must use the Sensor Products and Sensor Services in accordance with the Acceptable Use Policy and Site Terms and Conditions and any other SafetyCulture policies posted on the Site.
You will be provided credentials to enable access to the Sensor Services and Sensor Products for your users to which you have granted authorised access. You agree that our responsibilities do not extend to the internal management or administration of the Sensor Products and Sensor Services for you and that we are merely a software provider.
You are responsible for responding to a request from a third party for records relating to your use of the Sensor Products and Sensor Services (Third Party Requests). Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order. We will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify you of the receipt of a Third Party Request; (b) comply with your reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide you with the information or tools required for you to respond to the Third Party Request. You will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact us only if you cannot reasonably obtain such information.
By using the Sensor Products and Sensor Services, you acknowledge that it is your sole responsibility to ensure the confidentiality and security of any information transmitted from or stored on a Device for the purposes of the Sensor Products and Sensor Services, for all transactions and other activities, whether authorised or unauthorised. You understand that use of the Sensor Products and Sensor Services involves transmission of your data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party providers that are required for your use of the Sensor Products and Sensor Services.
Except as expressly stated in this Agreement, we do not make any representation or warranty (express or implied) in respect of the Sensor Products and Sensor Services, any Materials or any other goods or services provided by SafetyCulture to you, including, without limitation, any implied warranty: (i) of merchantability; (ii) of fitness for a particular purpose; (iii) arising from a course of performance, course of dealing, or usage of trade; (iv) of non-infringement of third party rights; or (v) against hidden defects.
The Sensor Products and Sensor Services and Materials are provided on an “as is”, “with all faults” and “as available” basis and without any further warranties of any kind other than provided in Appendix 3 (Hardware). We make no warranty that operation of the Sensor Products and Sensor Services and Materials will be uninterrupted or error free or that all defects will be corrected.
Without limiting the above, you acknowledge that:
● you are using the Sensor Products and Sensor Services at your own risk;
● the Sensor Products and Sensor Services are not a substitute for professional advice;
● you are solely responsible for the use of the Sensor Products and Sensor Services;
● you have not relied on any representation in ordering the Sensor Products and Sensor Services or any goods and services from us;
● we are not liable for any loss or damage caused to you or your Hardware for your failure to install the Hardware in accordance with any installation instructions we provide to you. If you install the Hardware, we encourage you to carry out appropriate testing to ensure the Hardware is installed correctly;
● you are responsible for ensuring that the Hardware is adequately charged at all times. We are not responsible if you fail to provide your Hardware with uninterrupted access to a power source, or if you provide the Hardware with access to an inadequate power source. We may provide notification on our application that available battery life on the Hardware is running low, however you are responsible for carrying out your own checks to ensure that the Hardware is properly charged; and
● the Sensor Products and Sensor Services are not designed to be a replacement for any notification, emergency warning or evacuation warning system. You must have your own policies and procedures in place to deal with any notification, emergency situation or evacuation situation. The Sensor Products and Sensor Services should be used as a backup emergency warning system only.
To the maximum extent permitted by law, we exclude completely all liability whatsoever, and you release and discharge us from all liability for any claims, liability, loss or damage of any kind however caused (including negligence) arising out of or in connection with any goods or services provided by us including the Sensor Products and Sensor Services and its access, use or performance, including, without limitation, we are not liable for: (a) misuse of the Sensor Products and Sensor Services or any Materials; (b) use of the Sensor Products and Sensor Services and Materials with third party data, software or hardware which is incompatible with the Sensor Products and Sensor Services and/or not recommended by us; (c) reduced performance or non-availability of the Sensor Products and Sensor Services or any Materials as a result of network connections; (d) errors in the Sensor Products and Sensor Services or any Materials resulting from your configuration or manipulation of the Sensor Products and Sensor Services or any Materials, in each case not specifically recommended in writing by us; (e) a loss of stock, assets or any other material monitored by the Sensor Products and Sensor Services; (f) event or circumstances beyond our reasonable control; (g) acts or omissions of your personnel; (h) any defect, error, lack of functionality, or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit), inaccessibility of, interruption or outage with respect to the Sensor Products and Sensor Services; (i) any injury or loss to any person; and (j) breach of these Terms or any law, including but not limited to any food safety law.
Under no circumstances (including but not limited to any act or omission on our part) will either party be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, the Sensor Products and Sensor Services or any Materials.
To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to supply of the good or service ordered by you again or paying for their resupply.
Notwithstanding the above, to the maximum extent permitted by law, in no event shall either party’s aggregate liability for any claims arising out of or related to these Terms exceed the amount that you paid, if any, to us for access to or use of the Sensor Products or Sensor Services during the twelve (12) months immediately prior to the event giving rise to such liability.
You agree to indemnify SafetyCulture and its related parties, officers, agents and employees (Indemnified Parties) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including legal expenses (on a full indemnity basis) arising from or relating to: (i) your use of the Sensor Products and Sensor Services or any Materials; (ii) a breach of these Terms by you; and (iii) your breach of any applicable law.
This Agreement is in effect for the Term, unless sooner terminated as permitted in these Terms. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of these Terms and does not cure the breach within thirty (30) days after written notice of the breach, or if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
We may terminate this Agreement before the expiration of the Term if you are in material breach of these Terms more than two times during the Term notwithstanding any cure of such breaches or if you remain suspended at any time for non-payment of Fees for more than sixty days.
You may terminate this Agreement at any time with notice to SafetyCulture, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Sensor Products and Sensor Services.
Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.
Except as set forth in this Section, once the Agreement terminates, then: (i) the rights granted by SafetyCulture to you will cease immediately (except as set forth in this Section); (ii) you must cease all use of the Sensor Services and, if you have not paid up front for the Hardware, the Sensor Products; (iii) you must pay to us any and all outstanding Fees for the Term; and (iv) you undertake not to attempt to access the Sensor Services and, if you have not paid up front for the Hardware, the Sensor Products or any data stored in the Sensor Products and Sensor Services after the date of termination.
After termination SafetyCulture will provide you access to, the data, including email, provided, generated, transmitted or displayed via the Sensor Products and Sensor Services by you (Customer Data) for a commercially reasonable period of time at our then-current rates. After a commercially reasonable period of time, we will delete Customer Data by removing pointers to it on our active and replication servers and overwriting it over time.
If we become aware of a breach by you of these Terms, then we may specifically request that you suspend the Services. If you fail to comply with our request to suspend an account, then we may do so. The duration of any suspension by us will be until you have cured the breach which caused the suspension.
We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order. If we modify these Terms during the Term, the modified version will be effective upon your next renewal of the Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any Terms set to auto-renew.
With respect to Trial Services, accepting the updated Terms is required for you to continue using the Trial Services. If you do not agree to the updated Terms after it becomes effective, you will no longer have a right to use Trial Services. For the avoidance of doubt, any Order is subject to the version of the Terms in effect at the time of the Order.
These Terms are governed by the laws of New South Wales, Australia and the parties agree to submit to the exclusive jurisdiction of the courts in New South Wales, Australia.
If any provision of these Terms is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of the Terms shall be construed in a manner as to give greatest effect to the original intention of these Terms.
The waiver of any right or failure of either of us to exercise in any respect any right provided in these Terms in any instance shall not be deemed to be a waiver of such right in the future or a waiver of any right under these Terms.
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, pandemic, act of war or terrorism, riot, labour condition, governmental action, and internet disturbance) that was beyond the party's reasonable control (Force Majeure).
Your use of any website or software that is not provided by us to access or download the Sensor Products and Sensor Services shall be governed by the terms and conditions applicable to that website or software. We are not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Sensor Products and Sensor Services.
Any notices to you may either be posted on the Site or given in writing (which may be by email) to the address last notified by you to SafetyCulture. Any notices to SafetyCulture, and any questions, concerns or complaints relating to the Sensor Products and Sensor Services shall be in writing and addressed to: Enquiry Officer, SafetyCulture Pty Ltd, PO Box 7175, Garbutt QLD 4814 Australia or given by email to: firstname.lastname@example.org.
You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process. Please notify us in writing of any dispute you may have.
This Agreement, and any rights and licenses granted hereunder, must not be transferred or assigned by you without our prior express written consent. We may, without restriction, assign this Agreement and our rights and delegate our obligations hereunder to: (i) any of our affiliates or subsidiaries, or (ii) a third party participating in a merger, acquisition, sale of shares or assets, change of control, corporate reorganisation or similar transaction in which SafetyCulture is participating.
In respect of the subject matter of the Terms, these Terms contain the entire understanding between the parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the parties has relied entirely on its own enquiries before entering into the Terms.
This Agreement may be executed in counterparts. A counterpart may be delivered by facsimile or other electronic imaging means. Each counterpart constitutes an original of this Agreement, and all together constitutes one agreement.
Appendix 1 (Data Protection Compliance)
In this Appendix and in Appendix 2 (Data Processing Agreement):
Data Protection Laws means the EU Data Protection Laws and the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the EU Data Protection Laws in relation to the processing of personal data and sensitive personal data.
EU Data Protection Laws means, up to and including 24 May 2018, any legislation in force from time to time which implements the EU Directive 95/46/EC and relevant national implementations of the same and, with effect on and from 25 May 2018, means the GDPR and any relevant national implementations of the same;
personal data, sensitive personal data, consent, controller, processor, data subject and processing mean those concepts, roles and activities as defined in the applicable EU Data Protection Laws and on and from 25 May 2018 sensitive personal data means those classes of personal data that are described in Article 9 of the European General Data Protection Regulation 2016/679) or, where relevant, equivalent concepts, roles and activities as described in other Data Protection Laws.
We are the controller in respect of personal data and sensitive personal data, such as account registration details, that we collect directly from users of the Sensor Products or Sensor Services (End Users) and users of No-Charge Services, and which we use for the purposes of our business.
You are the controller and we are the processor in respect of any other personal data and sensitive personal data (including within Your Modifications) that is uploaded by End Users and/or users of No-Charge Services including data, templates, information, content, code, video, images or other material of any type (Materials), or which is provided by your administrators (see Section 10 above).
On and from 25 May 2018, to the extent that the Sensor Products or Sensor Services and/or Non-Charge Services comprise the processing of personal data or sensitive personal data where we are the processor and you are the controller and the processing of personal data or sensitive personal data is subject to the GDPR:
Appendix 2 (Data Processing Agreement)
The provisions of this Appendix (Data Processing Agreement) form part of the Agreement to the extent that Section 6 of the Agreement applies.
Appendix 3 (Hardware )
1. The Hardware
The Hardware referenced in these Terms is comprised of the sensor equipment and a gateway which communicates with the sensor equipment and the SafetyCulture platform (iAuditor), if applicable, purchased by you.
In order to use the Sensor Product and Sensor Services, you must purchase and install the sensor equipment and a gateway which communicates with the sensor equipment and the SafetyCulture platform compatible with the Sensor Services as specified at https://safetyculture.com/temperature-sensors/ .
2. Title and Risk
Title in the Hardware will only pass to you if you pay for the sensor equipment up front and when we have received full payment for the Hardware as per the Order Form or Online Order, as applicable. If we do not receive payment for the Hardware, title to the Hardware will not pass to you. Title in the Hardware will not ever pass to you if you pay for the sensor equipment on an instalment basis as per the Order Form or Online Order, as applicable.
Risk of loss in the Hardware will pass to you when the Hardware is installed. Once risk in the Hardware passes, you are solely responsible for the Hardware and your use of the Hardware in all respects.
3. Acceptance Testing
Within five (5) business days of you installing the Hardware being installed, you agree to:
● notify us that the Hardware is functioning in accordance with any specifications we provide and that you accept the Hardware; or
● notify us that the Hardware is not functioning in accordance with any specifications we provide and that the Hardware does not meet the Acceptance Tests.
If you provide notice to us that the Hardware is not functioning in accordance with any specifications, and we are satisfied that the Hardware does not meet the specifications, then we will organise replacement Hardware, provided that the failure of the Hardware has not been caused, in whole or in part, by your:
● incorrect installation of the Hardware;
● misuse of the Hardware contrary to the specifications;
● use of the Hardware by a person not trained to use the or Hardware; and/or
● deliberate tampering with, or damage to the Hardware.
We reserve the right to charge you additional Fees in the event that any returned Hardware is determined by us to be functioning in accordance with its specifications, which may include administrative and shipping Fees.
If you do not notify us within five (5) business days as required above, or use the Hardware in a non-test, live or production environment prior to accepting the Hardware, you will be deemed to have accepted the Hardware.
Hardware Warranty: We will take all reasonable steps to facilitate a warranty claim for the Hardware.
If you pay for the sensor equipment up front, and we have received full payment for the sensor equipment, you will be eligible for a warranty for the period that is two (2) years after you have received the sensor equipment.
If you pay for the sensor equipment on an instalment basis, you will be eligible for a warranty for the Hardware for the Term as per the Order Form or Online Order.
The Hardware Warranty provided herein is void and of no effect, if the defect or damage has been caused, in whole or in part, by:
● misuse of the Hardware (contrary to any specifications that were provided);
● use of the Hardware by a person not trained to use the Hardware; and/or
● deliberate tampering with or damage to the Hardware.
In the event of damage of any kind as a result of misuse of the Hardware, we will not be liable for any damage so suffered or any ancillary or resulting damage.
For Australian Customers Only:
Goods: If you are a consumer as defined in the Australian Consumer Law ( ACL ), the following notice applies to you in relation to the Hardware: "our goods come with warranties and guarantees that cannot be excluded under the Australian Consumer Law ( Consumer Guarantees ). You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
Manufacturer: The Hardware comes with a manufacturer's warranty, as detailed above, provided by us. The Hardware Warranty is in addition to but may overlap with any rights and remedies you may have under applicable law, including any Consumer Guarantees. If you are not considered a "consumer" within the meaning of the ACL, the Hardware Warranty may be your sole remedy.
You must follow any installation instructions we provide to you when you install the Hardware. We are not liable for any loss or damage caused to you or Hardware arising from your failure to install the Hardware in accordance with any installation instructions we provide to you.
You are responsible for:
● ensuring that your systems and facilities are compatible with the Hardware and meet any minimum requirements specified in the specifications;
● making any changes to your systems required in order to install the Hardware;
● any calibration of the Hardware required to integrate the Hardware with your systems and for any ongoing use of the Sensor Services; and
● ensuring that the Hardware is adequately powered and/or charged at all times. We may provide notification through the Sensor Services that available battery life on the Hardware is running low, however you are responsible for carrying out your own checks to ensure that the Hardware is properly powered or charged.