Welcome to the PlanSafe platform (PlanSafe) developed and owned by Locatrix a Concept Safety Systems Pty Ltd ACN 138 151 256 (we/us/our) company.
PlanSafe is a software solution that assists with:
(a) the development and maintenance of:
(i) internal building plans;
(ii) fire evacuation programs, WH&S programs, training and compliance;
(iii) building emergency procedures; and
(b) contractor management.
You must carefully read these Terms and you should contact us with any questions before using PlanSafe.
(a) These Terms and Conditions (Terms) govern your use of PlanSafe and form a binding contractual relationship between you and us.
(b) By using PlanSafe you acknowledge and agree that you have had a sufficient opportunity to read and understand these Terms and that you agree to be bound by them. If you do not agree to these Terms, please immediately exit PlanSafe and do not proceed to access or use it in any way.
These Terms commence on the acceptance date and continue until terminated under clause 14.
4. Public site
Unless we otherwise agree with you in writing, you acknowledge that access to PlanSafe will be by way of a publicly available web address.
5. Customer warranties
You represent, warrant and undertake that:
(a) you have the capacity and authority to enter into and to perform your obligations under these Terms;
(b) these Terms have been accepted by you or a duly authorised representative of yours and accordingly legally bind you;
(c) you will not use PlanSafe in a manner that is contradictory or inconsistent with these Terms;
(d) you will comply with all reasonable and lawful directions that we may give from time to time with respect to your access to, and use of PlanSafe;
(e) you will not provide any other person with access to your personal account or provide unauthorized persons with access to your administrator account (as the case may be);
(f) you will not infringe the rights, including intellectual property rights, of any third party in accessing and using PlanSafe;
(g) you are responsible for properly recording and ensuring the accuracy of all information that is input into PlanSafe;
(h) you are responsible for ensuring the accuracy of all your information in PlanSafe upon each annual review;
(i) you will not engage in malicious conduct in using PlanSafe including conduct that is targeted at, or has the effect of, disrupting or interfering with the functionality and operating of PlanSafe; and
(j) you will not breach any law in accessing and using PlanSafe.
6. Access and use
(a) Subject to the stipulations of these Terms, we grant you a non-exclusive, worldwide, non-transferable licence to use PlanSafe in accordance with these Terms.
(b) We reserve the right to refuse you access if we consider it reasonable or necessary:
(i) in order to protect our rights under these Terms;
(ii) to protect the PlanSafe system and our commercial advantage; or
(iii) to comply with any other commercial agreement to which we are a party.
6.2 General conditions
(a) The licence to PlanSafe is granted to you by us under clause 6.1, subject to the following conditions:
(i) you must only use PlanSafe for the purposes it was expressly intended and must not grant or provide any right to any third party to use, access or commercialise PlanSafe other than strictly in accordance with these Terms;
(ii) you must co-operate with us in any remediation of any security, unauthorised use or misuse of the PlanSafe;
(iii) you must promptly report to us all such matters which you become aware of or consider to be suspicious in the context of unauthorised use or misuse of PlanSafe;
(iv) you are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use PlanSafe;
(v) you must not make any copies of, or derivate works based on, the floor plans, safety compliance training programs, safety compliance examinations or any other information, imagery or content that is available within PlanSafe;
(vi) you must not share, give answers or provide any other information contained in or relating to any of the safety compliance examinations with others who will be required to undertake the same examination as part of a safety compliance program;
(vii) you must not interfere with or disrupt the operation of PlanSafe, or attempt to do the same; and
(viii) you must not, subject to any right under sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to PlanSafe.
6.3 Specified use
(a) You are only authorised to use PlanSafe for the following:
(i) creating an account;
(ii) updating, amending or editing your information once you have created an account;
(iii) retrieving our contact details;
(iv) participating in safety examinations and training, where these resources have been made available to you by an administrator user;
(v) accessing and reviewing mapping information, overlay information and images/data that have been made available to you and are required by you to complete a service you are providing, or a task you are performing that has been approved by an administrator user;
(vi) reviewing our policies and guidelines; or
(vii) contacting us.
(b) If you are an administrator user within PlanSafe, you may also use it to:
(i) maintain your safety compliance records;
(ii) creating and maintaining fire and evacuation plans and building emergency procedures;
(iii) develop/use safety compliance training programs;
(iv) create and maintain overlay information to your building floor plan, including attaching additional relevant content to those overlays; and
(v) assist with contractor management and provide limited access to it to your contractors.
7. Proposal, fees and payment
7.1 Application of this clause
This clause 7 applies only those who are administrators users.
(a) The parties acknowledge that if there is a statement of supply that we both agree to (Proposal), it will form part of these Terms.
(b) If there is an inconsistency between one or more of the documents which constitute these Terms, the order of precedence will be:
(i) the Proposal;
(ii) this document; and
(iii) any other document or information expressly incorporated by reference either in the Proposal or in this document.
(a) In consideration of being granted access to PlanSafe pursuant to clause 6.1, you must pay us licence fees in accordance with our usual published fees or as set out in our Proposal to you (Fees).
(b) The Fees will be charged in advance, calculated from the date you create an account, or as otherwise reasonably nominated by us from time to time.
(c) You must make payment of the Fees within 14 days of receipt of our invoice.
(d) We may elect to use the services of a third party for the purposes of charging and processing Fees (Payment Manager). If we elect to do so, you will be required to agree to the terms and conditions imposed by the Payment Manager. If you do not agree to its terms you will not be able to continue to access and use PlanSafe.
(e) You acknowledge and agree that we may reasonably increase the Fees from time to time upon providing you with at least 14 days’ notice. If you do not agree to the increase in Fees, you may terminate these Terms in accordance with clause 14 of these Terms.
(a) If the you fail to pay or default on payment of any Fees that are due and owing, we may charge you for all costs and expenses incurred by us in recovering the outstanding Fees, including legal fees (on a solicitor and own client basis) and court costs. These costs and expenses are payable by you on demand.
(b) You acknowledge that we may charge interest on our unpaid Fees. You agree that interest at the rate of the Reserve Bank of Australia Cash Rate plus 2% is payable in respect of any invoice which is not paid in accordance with the terms of payment described in that invoice. Interest will be charged and calculated on daily rests on the balance owing until the invoice is paid in full.
(c) You acknowledge that we also have a right to immediately terminate your access to PlanSafe pursuant to clause 15.
Unless otherwise expressly stated, all amounts under these Terms are exclusive of all taxes, duties and customs. If any taxes, duties or customs are imposed on any supply made under or in accordance with this engagement and such taxes, duties or customs have not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of those taxes, duties or customs.
We will use our best endeavours to provide support to you within 1 business day of a request being made. Support provided by us under these Terms does not encompass providing you with assistance in relation to internet connectivity or hardware issues.
9. Our responsibilities
(a) comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws in relation to your data;
(b) provide you with reasonable notice of scheduled maintenance to the Platform;
(c) use adequate security systems and procedures to safeguard and prevent third party access to your data;
(d) conduct general server maintenance as and when reasonably required;
(e) host all data; and
(f) ensure that PlanSafe will be provided in accordance with:
(i) these Terms;
(ii) applicable laws; and
(iii) our marketing material.
10. Intellectual property
(a) The content and material contained within or forming a part of PlanSafe (including its coding, imagery, wording, design, graphics, logos, building floor plans and safety compliance training) are owned by us or are granted to us under license and are protected by copyright laws.
(b) Each party retains all right, title and interest in and to its pre-existing intellectual property rights.
(c) Nothing in these Terms affects a party’s moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in PlanSafe or any of its content.
10.2 Trade marks
PlanSafeTM and the PlanSafe logo are our trade marks, as are all other related signs distinguishing our services from others that are used by us in PlanSafe. You acknowledge and agree that you are not granted any right or license to our trade marks.
10.3 Your content
(a) You should not record or upload any sensitive or private information regarding any person to PlanSafe. If you do so, you acknowledge and agree that this information is entirely at your risk.
(b) If you add any content, material or other data into PlanSafe directly, you grant us a perpetual, worldwide, royalty free, transferrable and sub-licensable right and license to use, host, modify and publish all information and imagery you have added to PlanSafe.
(c) The right and license granted to us by you under paragraph (a) is strictly for creating and displaying plans for the development of building emergency procedures, fire evacuation programs and contractor management. You hereby consent to this information being made available for this purpose and acknowledge that it will be accessible by other users, including approved safety plan developers, the relevant building owner/manager and emergency services personnel.
(d) You warrant that you have the legal capacity to grant us the right and license under paragraph (b).
(e) The license in paragraph (b) survives any termination of these Terms.
(f) You acknowledge and agree that all data will be stored by our server host located in Australia unless otherwise specified by us.
You acknowledge and agree that all intellectual property rights in the variations, additions and alterations to PlanSafe are owned by us, even where suggested or created by you.
11. Electronic communication
(a) When using PlanSafe you are sending information and communicating electronically.
(b) By making such electronic communications you acknowledge and consent to receiving communications (including legal notices) from us electronically. We may communicate with you by email (to the address detailed in your account information) or by private message within PlanSafe.
12. Off platform conduct
It is a direct violation of these Terms for you to engage in an activity using information obtained from PlanSafe to contact, abuse, advertise, sell to, harass or harm any current or past PlanSafe user or do anything that would enable another to do such an act.
13. Confidentiality and restrictions
13.1 Definition of confidential information
In this sub-clause and in sub-clause 14.3:
Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
13.2 Recipient must keep Confidential Information confidential
Each party must keep confidential all Confidential Information and only use Confidential Information for providing or receiving PlanSafe.
13.3 Disclosure exceptions
The obligations in clause 13.1 do not apply:
(a) to the extent necessary to enable a party to make any disclosure required by law;
(b) to the extent necessary to enable a party to perform its obligations under these Terms;
(c) to any disclosure agreed in writing between the parties; or
(d) in respect of any portion of the Confidential Information which has entered the public domain other than because of a breach of these Terms.
You undertake to not during the duration of these Terms or for a period of 12 months after they end:
(a) solicit, canvass, induce or encourage any person who was at any time during the term of these Terms an employee, a director, employee or agent of ours to leave our employment or agency; or
(b) do anything that would or would be likely to interfere with the relationship between our clients, customers, employees, partners or suppliers.
14.1 Termination by notice
(a) With respect to administrator users, either party may terminate these Terms by written notice to the other (Termination Notice). Where a Termination Notice is received at least 14 days before the end of the then current billing period. Termination will take effect at the end of that billing period.
(b) With respect to non-administrator users, either party may terminate these Terms at any time by providing written notice to the other.
14.2 Termination for breach
With respect to administrator users, either Party may, without prejudice to its other rights or remedies, terminate these Terms with immediate effect by written notice to the other Party, in the event of:
(a) any material breach of the Agreement by the other party which is not remedied within 30 days after the service on the party in default of a written notice specifying the nature of the breach and requiring that the same be remedied; or
(b) the other party becoming insolvent.
14.3 Consequences of termination
Upon termination or expiry of these Terms:
(a) you must pay all outstanding Fees, and other charges due to us under these Terms up to the date of termination;
(b) each party must destroy the other parties Confidential Information received under these Terms and certify such destruction in writing;
(c) any accrued rights or liabilities of either party or any provision of these Terms which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected;
(d) promptly following termination, we will inform emergency services that you are no longer participating in our safety compliance program;
(e) If you are an administrator user, we will maintain your content and data for 12 months from its last update, whilst is remains accurate and valid. We may not continue to maintain this information beyond this period. We will not provide you with notice of your content and data being deleted before it is. If you wish to obtain a copy of your data, we will promptly provide it to you following your request upon payment of our reasonable handling fees. We will not be liable to you in any way where you have failed to obtain your data before it is deleted
15. Consequences of violation
(a) If you violate these terms in any way we may in our sole discretion and without notice to you:
(i) take any legal action we have available against you;
(ii) terminate your account;
(iii) block your use of PlanSafe; and/or
(iv) disclose information about you and your use of PlanSafe for investigation by any enforcement body for your unlawful activity.
(b) You agree that monetary damages may not be sufficient where your actions cause damage to us, whether by tarnishing our goodwill, impacting upon our downloads or increasing our expenses and in such a case you irrevocably consent to us seeking injunctive or other equitable relief against you as a consequence of your violation.
16. Third party content
(a) Opinions, advice, statements, or other information made available through PlanSafe by third parties, are those of their respective authors, and should not necessarily be relied on. We hold authors fully responsible for any information that they create. We do not:
(i) guarantee the accuracy, completeness, or usefulness of any third-party information; or
(ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice or statement made by a third-party,
(b) Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on PlanSafe that:
(i) we have not expressly endorsed; or
(ii) has been transmitted to you by any third-party via PlanSafe.
17. Third party sites
(a) PlanSafe may contain links to third party websites outside our control (Linked Sites). We take no responsibility for content contained in any Linked Sites, and do not endorse any aspect of these third party services. We cannot and do not guarantee, represent or warrant that the content contained in any Linked Site is accurate, legal, or inoffensive. Such links are provided for convenience only. You use these Linked Sites entirely at your own risk.
(b) We do not assume any responsibility or liability for the actions, products, services and content of any Linked Site. We advise that users should carefully review each Linked Site’s privacy policies and terms and conditions of use. If you choose to purchase goods or services from a third party via a Linked Site, including one accessed from PlanSafe, then you are entering a separate agreement with that third party, and expressly agree that we are not a party to that transaction.
18. User’s risk
(a) We will use reasonable care and skill to ensure that PlanSafe is free from defect and harmful code. Internet services are however, subject to interruption, break down, viruses, delays, interception, interference and other errors involving electronics, communications networks, computer systems, servers, providers, computer equipment, hardware and software.
(b) Whilst all due care has been taken in providing the information on PlanSafe, we do not provide any warranty either express or implied, including without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose.
(c) To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
(d) All due care is taken in ensuring that PlanSafe is free of any virus, worm, Trojan horse and/or malware, however we are not responsible for any damage to your computer system or device which arises in connection with your use of PlanSafe.
(f) We will not be liable to you or any other party for damages of any kind arising from your use of PlanSafe.
19.1 Your indemnity
(a) You agree to indemnify us and to keep us indemnified against any loss, cost or expense that may be incurred by us arising from or in connection with:
(i) any breach or default by you of these Terms (including any breach of warranty);
(ii) a negligent act or omission by you or by a party you are responsible for;
(iii) your failure to comply with any law;
(iv) your failure to comply with your contractual obligations to any third party insofar as such obligations arise or relate to your use of PlanSafe;
(v) the infringement of any third party rights, including intellectual property rights, arising from or relating to your use of PlanSafe.
(b) The indemnity provided to us by you in accordance with this clause 19.1 will be reduced proportionately to the extent that any loss incurred by us is contributed to by our own negligent acts or omissions.
19.2 Exclusion of liability
To the maximum extent permitted by law, we will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits, loss of data and loss of personnel) arising out of these Terms or the use of PlanSafe, even if we were appraised of the likelihood of such loss or damage occurring.
19.3 Limit of liability
(a) Except as expressly provided by these Terms, PlanSafe and the data accessible through it are provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition, accuracy or fitness for purpose and we do not warrant that PlanSafe or any data in it will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
(b) Except in relation to liability for personal injury, our liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of ours in connection with our obligations under these Terms will not exceed the total Fees received by us from you in the immediately preceding 3 months calculated from when the cause of action arose.
(c) We have no responsibility or liability whatsoever as a consequence of any Loss suffered by you as result of:
(i) any reliance by you on PlanSafe or the data and information accessible through it;
(ii) any third party software malfunctions;
(iii) malfunctions in PlanSafe caused as a result of integration with third party software; or
(iv) being your nominated fire safety adviser.
(a) If a dispute arises out of or relates to these Terms (Dispute) a party to these Terms may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
(b) A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to these Terms specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to by them.
(c) If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
(d) Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
(e) Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.
(a) We reserve the right to modify, permanently or temporarily disable or discontinue any part of PlanSafe and to alter, amend or withdraw any part of these Terms or any information or material appearing on PlanSafe at any time, without liability or further notice to you.
(b) The current version of these Terms is published and available within PlanSafe. Where changes made to the Terms impact your rights or obligations, you will be provided with reasonable notice before the changes take effect.
(c) Please be aware that, your continued use of PlanSafe following any change under this clause 20 will constitute your automatic acceptance of it.
22. General matters
(a) We may, upon notice in writing to you, assign or otherwise transfer the benefit of all or any part of these Terms to any other person or entity.
(b) Neither any rights, benefits or liabilities relating to these Terms may be assigned by you without our prior consent, which will not be unreasonably withheld.
Unless these Terms expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under these Terms. To be effective any consent under these Terms must be recorded in writing (which includes an “I agree” click acceptance).
Each party will pay their respective costs and expenses of in connection with the negotiation, preparation, execution, and performance of these Terms.
22.4 Entire Agreement
These Terms contain the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by these Terms and has no further effect. You warrant that you have not relied on any representation made by us which has not been stated expressly in these Terms.
22.5 Further acts
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.
These Terms is governed by the law in force in the State of Queensland Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to these Terms.
22.7 No Merger
No right or obligation of any party will merge on completion of any transaction contemplated by these Terms.
Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of these Terms which shall remain in force.
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under these Terms by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under these Terms.
(b) Any waiver or consent given by any party under these Terms will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of these Terms will operate as a waiver of another breach of that term or of a breach of any other term of these Terms.