Sunset Coast Holdings Pty. Ltd trading as Risk Talk (ACN 614 517 547)
Terms and Conditions of Service
- These Terms are a legal agreement between you (Organisation) and Sunset Coast Holdings Pty. Ltd (Company) and governs the use of the Company’s Platform and the Services provided by the Company.
- The Company is the owner of the Platform through which it provides the Services.
- Organisation agrees that its access to and use of the Platform and the Services as an Organisation, and the access to, and use of the Platform and the Services by its Users, will be subject to these Terms.
In these Terms unless the context indicates a contrary intention:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth)
Company means Sunset Coast Holdings Pty. Ltd trading as Risk Talk (ACN 614 517 547).
Confidential Information means information which relates directly or indirectly to the business, operations or affairs of the business of the Organisation, the User and the Company and which the Parties could reasonably expect to be regarded as confidential. It includes but is not restricted to trade secrets, records, documents, accounts, plans, formulae, specifications, inventions, intellectual property, devices, methods, price information, customers correspondence, technical and customer data, information relating to business development and marketing activities.
Contract means any contract between the Company and the Organisation to which these Terms relate.
Data means any information other than Third Party Controlled Data that is entered into, or made available via, the Platform by Users, including (without limitation), personal information, voice recordings, risk assessments, safety observations, incident reports, hazard reports, GPS/location data, image and video.
Disparage and Disparagement means to disparage, discredit, defame, deliberately misrepresent information, or to spread malicious information in any way.
Fees and Charges include, but are not limited to, all fees and charges related to the Services as outlined in a fee schedule provided by the Company to the Organisation and any other fees and charges as set by the Company in respect of the Services from time to time, which form and are subject to these Terms.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Any amount required to be paid in accordance with these Terms is exclusive of GST.
Intellectual Property means copyright (including but not limited to designs, texts, graphics, images, video, information, logos, button icons, software, audio files and other content appearing on the Platform and the compilation thereof), patents, trademarks, (registered or not), domain names, registered design rights, Confidential Information, and all other proprietary technical information of the Company.
Malware means any virus, malware, worm, Trojan Horse, bot, malware, spyware, adware, ransomware, scareware, cookie or any other form of malicious online program of any description which may be downloaded onto a device or system;
Organisation Information means information provided by any means to the Company by the Organisation or Users.
Party means a party to this Agreement and Parties has the corresponding meaning.
Platform means the software platform known as ‘Risk Talk’, which consists of a subscription service for Users and Organisations, and through which the Company provides the Services.
Privacy Act means the Privacy Act 1988 (Cth).
Services refers to the range of current and future actions which can be taken by Users and the Organisation as a result of utilising the Platform and consists of but not limited to the following:
- access to the Data;
- voice recording and voice signature sign off;
- risk assessments, safety observations, hazard and incident reporting;
- creation of User profiles, Organisation profiles, Project profiles, risk matrices, questions, risk types and levels, observations, incident recordings, data and images, video; and
- communication between Users and Organisations, as enabled by Third Party Services; and
- analysis of voice recordings.
Subsidiary means any subsidiary of the Organisation as agreed between the Parties from time to time.
Third Party Controlled Data information provided by Users other than the Data, such emails, passwords, attachments and links to external documents, and Organisation Information.
Third Party Services means services provided by Third Party Service Providers, including but not limited to storage and handling of Third Party Controlled Data.
Third Party Service Provider means a third party provider of services to the Company in connection with the Platform.
Tax Invoice has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Terms refers to these terms of service as supplemented, amended or varied from time to time.
User refers to any person who is employed or contracted by the Organisation or any Subsidiary of the Organisation, and who is registered, or seeking to be registered, on the Platform as a user of the Services.
Website means the Company’s website, www.risktalk.com.au, and any related websites and on-line communities associated with the Company, including but not limited to social media platforms and mobile applications.
The Parties agree as follows:
- Services and Access
- In consideration of the Organisation making payment of the Fees and Charges as per clause 9, the Company will provide the Organisation and its Users with:
- the Services; and
- access to the Platform.
- The Organisation acknowledges and agrees that whilst the Company aims to provide the Organisation and its Users with uninterrupted uptime on the Platform, the Company accepts no responsibility if there is not ongoing, uninterrupted or fault-free access to the Platform for any reason whatsoever outside the Company’s control.
- The Organisation shall not use the Platform for any purpose other than as permitted by these Terms.
- Organisation’s Warranties and Acknowledgements
- The Organisation warrants that:
- any person providing Organisation Information is authorised to do so on behalf of the Organisation;
- the Organisation and its Users have a bona fide intention to utilise the Platform and the Services;
- the Data and the Services provided to the Organisation will only be used as provided for in these Terms and under no circumstances will be used (including but not limited to being republished or distributed in whole or in part) by the Organisation in any other way or for any other purpose. In the event of a breach of this clause, the Organisation will, to the maximum extent permitted by the law, indemnify both the Company and its licensors for any loss and damage including but not limited to legal costs and disbursements calculated on a solicitor-client basis;
- it will not require any form of payment from any User in respect of any aspect of the Platform;
- the Organisation and its Users will not resell or assign any rights or opportunities arising from its access to, or use of, the Platform;
- the Organisation and its Users will not use the Platform in any way to endorse a political party, political agenda, political issue, or any religion or organisation which could reasonably be regarded as religious in nature;
- unless permissible under local law, it will not require Users to provide information relating to the User’s racial or ethnic origin, political beliefs, philosophical or religious beliefs, membership of any union or organisation which may be regarded as similar to a union, mental health, physical disability, sexual orientation, or age;
- the Organisation and its Users will not use the Platform to disseminate material or information which could or be reasonably regarded as being capable of harassing, inciting hatred, or which advocates any harassment or hatred of any person or group, including but limited to bigotry, racism, discrimination, homophobia, or sexism;
- if it is located in a jurisdiction where laws or customs relating to religion, sexual orientation, or gender may be reasonably said to have the potential to adversely impact the health (including mental health), well-being, safety, security, freedom of movement, freedom of association, freedom of expression, and lifestyle of any User, then the Organisation will alert all Users of those laws or customs; and
- any Data provided by its Users is true and correct.
- The Organisation acknowledges that:
- any Subsidiary of the Organisation will be bound by these Terms and the Organisation will procure the compliance of any Subsidiary of the Organisation with these Terms;
- it will be providing the Company with access to Organisation Information including information about the Organisation which is or may be confidential in nature, and thereby expressly authorises the Company to investigate the authenticity of the information provided, notwithstanding that the Company’s use of Organisation Information is limited to reviewing Organisation reporting; and
- the Company is not responsible for the accuracy of any Data.
- Licence for the Services
- Subject to clause 13, the Company shall grant the Organisation and its Users a worldwide, limited, non-exclusive, non-transferrable licence to access the Platform and use the Data and the Services, subject to the following:
- the Organisation and its Users abiding by these Terms including but not limited to the copyright obligations as per clause 6 and maintaining strict confidentiality as per clause 15; and
- all Fees and Charges properly due to the Company having been paid.
- The Organisation agrees to allow the Company access to all information provided through any registration process and any other provision of personal data to the Company (whether via the Platform or otherwise), and agrees that this information may be used to further and promote the purposes and business of the Company. This access shall be contiguous and unimpeded by terms or termination of Contracts.
- The Organisation agrees not to take any action that imposes an unreasonable or disproportionately large load upon the Platform and the Company’s associated infrastructure.
- The Organisation acknowledges that the Company uses its best efforts to prevent Malware from being delivered by or downloaded from the Platform, but cannot guarantee that by using the Platform no Malware will be introduced or downloaded into any of the Organisation’s devices or system. In so far as the Platform provides hypertext links and other connections to other third-party websites, the Company does not endorse, approve of, nor is it associated or affiliated with, any of those websites, and the Company is not liable for any of the content contained on that website, including but not limited to:
- Malware; and
- any and all inaccurate, misleading or incomplete information.
- User Access
- Subject to the Company’s decision to determine otherwise in accordance with these Terms, from registration Users will be entitled to use the Platform during the period as agreed between the Company and the Organisation.
- Upon successful registration, Users must utilise a login and password personal to them. Any login or password details are confidential in nature and should not be provided to any other person.
- The Organisation agrees to ensure that its Users will create a profile on the Platform and update the User’s details and availability as and when required to maintain currency and accuracy.
- The Organisation must procure that Users shall not engage in any conduct that is unlawful, immoral, threatening, abusive in any way or deemed unreasonable by the Company in its discretion and it shall not bring the reputation of the Company into disrepute by way of the User’s use of the Platform or through any other association with the Company. If a User is found to be engaging in such conduct or brings the Company’s reputation into disrepute, the Company may immediately deregister the User or access to the Platform may be permanently denied.
- The Company may contact any User by digital means with respect to the User’s use or access of the Platform.
- The Organisation acknowledges that any engagement by Users for projects arising as a result of their use of the Platform may be subject to the internal policies of the relevant Organisation(s) involved. The Organisation acknowledges that the Company cannot warrant that any such engagements will be non-discriminatory and conscionable.
- User Removal
- The Company will have absolute discretion in deciding whether to remove a User from the database on the Platform.
- The Company may revoke a User’s access to the Platform at any time if the User is discovered to have been misusing access to the Platform.
- If a User is found to have provided false or misleading Data at any time:
- the User’s access to the Platform may be revoked permanently; and
- the Company may inform Organisations and any other persons or bodies who will likely use the Services of the provision of false Data.
- Copyright Retained
- The Organisation shall retain all copyright in Data of its Users and the Organisation Information.
- retain, use, distribute, modify, and create derivative works partly or wholly based in depersonalised, aggregated Data and depersonalised, aggregated Organisation Information in conjunction with depersonalised aggregated information obtained by the Company from other sources;
- use technology such as pixel tags, cookies, and unique identification numbers relating to the Company’s services so as to create derivative works based upon Data or Organisation Information; and
- provide Third Party Controlled Data to Third Party Service Providers.
The Company shall retain ownership of copyright in all outcomes derived from the activities described in this clause.
- The Organisation reserves all present and future moral rights in so far as any may exist in all intellectual property in any Data of its Users or Organisation Information.
- Intellectual Property
- The Company shall retain ownership of, and reserves all rights in respect of all Intellectual Property.
- Save as provided by law, all information on the Platform, other than the Data, must not be given, sold, licensed, reproduced, or disseminated in any way to any person, public authority, institution or organisation without the express permission of a duly authorised representative of the Company. The Organisation agrees not to infringe or assist any third party to infringe the copyright of the Company, or any other aspect of any Intellectual Property owned by the Company or its licensors.
- The Organisation, nor any of its agents, associates, officers or employees shall not, nor assist any third party to:
- reverse engineer, decompile, or otherwise endeavour to disassemble the source code or object code for the Platform;
- use, data mining software, bots, site scraping or screen scraping, or similar automated data gathering extraction or publication tools on the Platform;
- implement website framing techniques or any other similar arrangement such as to obscure in any way the Company’s Intellectual Property;
- block any person from using the Platform; or
- reproduce, copy or replicate the Platform in any way.
- Third Party Controlled Data
The Company is the recipient of Third Party Services, which are utilised in part for the storage of Third Party Controlled Data. The Organisation and its Users acknowledge that by utilising any Third-Party Services through the Services, that they are bound by the terms and conditions of that third party, and that the Company is not liable for any loss, claims or damages howsoever arising in connection with those Third Party Services.
- Subscription, Fees and Charges, Payment and Renewals
- The Organisation acknowledges and agrees to pay for all Fees and Charges in relation to the Services rendered by the Company in accordance with these Terms.
- The Services and access to the Platform are provided on the basis of a monthly subscription which commences on the day the Organisation registers to access the Platform and Services and continues until the Organisation elects not to renew the subscription or the Company terminates the subscription.
- Your one (1) month subscription will automatically renew for a further period of one (1) month on the same terms, unless you advise the Company prior to the renewal date that you do not wish to renew the subscription.
- Requests to cancel a subscription must be submitted to [email protected].
- The Company will continue to process payments to the credit card or direct debit method elected by the Organisation for all subscription Charges and Fees (including renewals), unless the Organisation cancels the subscription with effect from the next renewal date.
- The Organisation must ensure that credit card or direct debit details (including card or account numbers, email addresses and phone numbers) are up to date at all relevant times. A failure to maintain up to date records, or failure to respond to requests for updated information will not constitute valid notice of cancellation under these Terms.
- The Company will issue a tax invoice to the Organisation on the date of each subscription payment.
- All Fees and Charges on the Platform are exclusive of GST.
- The Company is under no obligation to refund any part of the Fees and Charges paid for in accordance with clause 9.
- The Company shall be entitled to charge interest at a rate of 7% per annum on all overdue Fees and Charges. Payment of the interest charges will not relieve the Organisation of the obligation to pay the outstanding Fees and Charges.
- Where required, the Organisation shall reimburse the Company for all Fees and Charges, without any set-off or counterclaim whatsoever, reasonably and properly incurred in connection with the Services disbursed by the Company on behalf of the Organisation as per the Payment Terms.
- The Organisation acknowledges that the Fees and Charges are not incurred on a pro-rata basis and are payable regardless of when it commences using the Services.
- Term and Termination
- The Company may immediately terminate or suspend the Services, with or without notice, at any time, in the following circumstances:
- if the Organisation breaches its warranties under these Terms in any way;
- if the Organisation breaches its copyright obligations under these Terms (including clause 6) in any way;
- if the Organisation or any of its Users breach the fair use policy contained in clause 11.
- if the Organisation breaches its strict confidentiality obligations under these Terms in any way;
- if the Organisation defaults in payment of any Fees and Charges to the Company pursuant to these Terms for more than fourteen (14) days;
- if the Company believes the Organisation has been unethical, grossly unfair, discriminatory to Users or dishonest;
- in the event of any other breach by the Organisation of these Terms, which is not remedied within thirty (30) days of written notice from the Company requiring the breach to be remedied; or
- upon giving the Organisation thirty (30) days written notice of its intention to do so.
- The Organisation may terminate these Terms upon giving the Company written notice of a cancellation request in accordance with clause 9(d).
- If these Terms are terminated by either Party, the Organisation must still pay all monies owed to the Company for Services performed up to and including the date of termination pursuant to these Terms and for any costs incurred by the Company.
- Fair Use Policy
- The Organisation and its Users must not use the Platform for:
- unlawful, fraudulent, criminal or otherwise illegal activities;
- sending, receiving, publishing, posting, distributing, disseminating, encouraging the receipt of, uploading, downloading or using any material which is offensive, abusive, defamatory, indecent, obscene, unlawful, harassing or menacing or a breach of the copyright, trademark, intellectual property, confidence, privacy or any other rights of any person;
- sending or uploading unsolicited emails, advertising or promotional materials, offering to sell any goods or services, or conducting or forwarding surveys, contests or chain letters,
- knowingly or negligently creating, transmitting, storing, publishing or uploading any electronic material (including, without limit, files that contain viruses, corrupted files, Trojans or any other similar software or program) which is known or likely to cause, interrupt, damage, destroy or limit the functionality of any computer software, hardware or telecommunications equipment owned by us or any other Internet user or person;
- activities that invade another’s privacy, cause annoyance, inconvenience or needless anxiety to any person;
- activities that are in breach of any other third party’s rights, including downloading, installation or distribution of pirated software or other inappropriately licensed software, deletion of any author attributions, legal notices or proprietary designations or labels in any file that is uploaded, falsification of the origin or source of any software or other material;
- anything that may disrupt or interfere with our Platform or Service or cause a host or the network to crash;
- launching ‘denial of service’ attacks; ‘mailbombing’ attacks; or ‘flooding’ attacks against a host or network;
- granting access to the Platform to any person who is not a User or, in any way reselling or re-providing the Services to third parties;
- making excessive use of, or placing unusual burdens on, the network, for example by sending or receiving large volumes of download requests or print requests; or
- circumventing the user authentication or security process of a host or network.
- The Organisation is responsible for ensuring that security information remains confidential, so that the network cannot be used by any unauthorised person.
- The security information referred to in clause 11(b) includes, but is not limited to, information controlling access to:
- any equipment, computer hardware systems or networks;
- any computer software or applications; or
- any other services accessed by you in the use of either of the above.
- The Organisation shall not disclose any security information to any third party, or use the same for any purpose connected with the improper use of the network including accessing or attempting to access other parts of the services for which you do not have access rights.
- The Organisation is responsible for taking all reasonable steps necessary to prevent a third-party obtaining access to the network.
- Variation to Costs
In the event that the Organisation requires that the provision of the Services be extended or varied and the Company and the Organisation have agreed in writing to extend or vary the Services, the Company shall be entitled to review the value of the Fees and Charges, and the Organisation shall be obliged to pay all additional costs associated with such amended scope as is agreed in writing between the Company and the Organisation.
- Legal Costs
All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by the Company as a result of the Organisation failing to perform its covenants and obligations contained herein, shall be paid by the Organisation to the Company.
If the Organisation defaults in the due and punctual observance of all or any of its obligations or covenants under these Terms, all monies owed by the Organisation to the Company shall become immediately due and payable and the licence granted to the Organisation under clause 3 shall be immediately terminated.
- The Company makes no warranty as to the suitability of the Platform in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether the Platform is appropriate for the Organisation’s circumstances.
- The Company and the Organisation warrant to treat, deal in, retain, and handle any Data in accordance with privacy requirements and to not use Data except for the purposes stated herein, or otherwise to further improve and promote the purposes and business of the Company.
- The Organisation may be provided with a login and password personal to the Organisation in connection with its use of or access to the Platform. The Organisation agrees that any login or password details are confidential in nature and should not be provided to any other person other than as authorised by the Company. The Organisation is entirely responsible for the confidentiality of its log-in name and password.
- The Organisation shall treat all Confidential Information disclosed by the Company as confidential, and shall not disclose to any person or make known in any manner any part of the Confidential Information without the Company’s prior written consent.
- The Organisation shall not make use of the Confidential Information disclosed by the Company for its own benefit or the benefit of a third party and shall only use the Confidential Information for the purposes of the Services.
- The Organisation shall not for whatever reason either for itself or for any third party appropriate, copy, memorise or in any other manner reproduce any of the Confidential Information without the written consent of the Company.
- The Organisation agrees that it will forever observe the obligations of confidence set out in this clause unless released from such obligation in writing by the Company;
- The Organisation agrees that:
- all Confidential Information provided by the Company to the Organisation will be safely and securely stored when not in use and will remain the exclusive property of the Company; and
- all originals and copies:
- of documents which are or contain the Confidential Information, or
- which reproduce, are based on, utilise or relate to the Confidential Information, will be immediately returned to the Company or destroyed at its request.
- The Organisation agrees that the obligations provided for in this clause will survive the termination of these Terms, or any Contract.
- The Organisation agrees to procure that its officers, employees, agents, consultants or advisers using the Platform, Data or Confidential Information, will also abide by the same terms as are set out in this clause.
- The Parties each agree that the undertaking of confidentiality does not apply to Confidential Information which is or becomes available to the public other than as a result of a breach of this clause.
The Parties agree to not Disparage the other Party. The Parties agree that in the event that Disparagement occurs or is reasonably suspected to have occurred, then the Party which has been Disparaged may obtain urgent interlocutory relief to prevent or mitigate the spread of the Disparagement without the need to provide any undertaking as to damages.
- Dispute Resolution
- In the event of a dispute between the Parties, either Party may serve a notice on the other detailing matters of dispute and requiring that senior representatives of each Party meet and attempt to settle the dispute within five (5) working days.
- If the dispute is not settled by the senior representatives within ten (10) working days of the service of the notice, the dispute will be referred to to mediation by a single mediator. The costs of mediation will be shared equally by the Parties.
- If the Parties cannot agree upon the identity of the mediator, the dispute will be referred for mediation to a mediator nominated by the Institute of Mediators and Arbitrators.
- If the dispute is not settled within twenty-five (25) working days of the appointment of the mediator, the Parties may pursue other forms of dispute resolution within the jurisdiction of Western Australia, including but not limited to, litigation.
The Organisation hereby indemnifies and holds harmless and shall continue to indemnify and hold harmless the Company against all losses, damages, costs (including legal costs on a full indemnity basis) and expenses suffered or incurred by the Company by reason of, arising out of or referable to any conduct on the part of the Organisation or its Users, including breach or non-performance by the Organisation or its Users of any provision of these Terms, and any conduct in connection with access to or use of the Platform and the Services.
- Limitation of Liability
Notwithstanding anything contained herein the Organisation acknowledges that no representation, warranty or condition, express or implied, is given by the Company about the Services or that the Services provided comply with the rules, regulations, laws and legislation of the place where the services are being provided and the Company will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the Services, or any Third Party Services and such services not complying with such rules, regulations, laws and legislation, or by any inaccuracy, error or omission in the Data and any other information provided by or to the Company.
- No Warranties
- Where the Australian Consumer Law and other laws imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of goods and services, to the extent that it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these Terms which cannot be excluded, then the liability of the Company for any breach of such term will be limited in the manner permitted under section 64A of the Australian Consumer Law to either supply of the Services again or payment of the cost of having the Services supplied again (as the Company may determine).
- The Organisation acknowledges and agrees that it should obtain his own independent legal, financial, accounting, human resources, immigration, or taxation advice as applicable and that the Company does not, has not, and will not provide any of this type of information to the Organisation. The Organisation acknowledges and agrees that it has entire responsibility, to the fullest extent permissible by law, to assess and evaluate the accuracy, completeness, utility, and viability of all information provided on the Platform and by any User.
- Certain areas of the Platform may be subject to additional terms or conditions. By using such areas, or any part thereof, the Organisation agrees to be bound by any additional terms and conditions applicable to such areas of the Platform.
- No amendment or variation of these Terms is valid and binding on the Company unless it is in writing and signed by an authorised officer of the Company.
- The Organisation may not assign these Terms or any of its rights and obligations in whole or in part in these Terms, whether by actual assignment or by operation of law or by providing any information on the Platform to any third party without the Company’s prior written consent, unless otherwise agreed to in writing between the Parties.
- A provision of these Terms may not be waived except in writing and signed by an authorised officer of the Company. No waiver or breach of any provision of these Terms shall constitute a waiver or breach of any other provision.
- If the Organisation comprises two or more parties each of those parties are jointly and severally liable on the covenants and obligations herein.
- These Terms and the relationship between the Company and the Organisation shall be governed and construed in accordance with the laws of Western Australia, Australia and the Parties shall submit to that jurisdiction.
- If any part of these Terms become void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. None of these Terms will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these Terms.
- If these Terms are inconsistent with any other previous Contract, document or agreement between the Parties, these Terms will prevail to the extent of the inconsistency.
- The Parties agree that no joint venture, partnership, employment, or agency relationship exists between them.