1.1. SeePilot Pty Ltd ACN 619 567 216 (Company) provides the SeePilot mobile application (seePilot) which is a virtual reality software solution that enables users to create their own virtual workspaces for communication, as more fully described in Clause 3 of this Agreement.
2.2. In addition to any other express or implied consents, by using SeePilot the User accepts and agrees to the terms of:
3. The SeePilot Product
3.1. SeePilot may enable the Users to
3.2. SeePilot enables the Organisation to create and administer Workers’ user accounts for SeePilot and assign permissions and restrictions on the Workers’ user account to allow the Workers to carry out any of the tasks listed in Clause 3.1.
4.1. By using SeePilot, the User is granted a limited, non-exclusive and revocable licence to access and use SeePilot for the term of the Licence, in accordance with the terms and conditions of this Agreement.
4.2. The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
4.3. The Company may revoke or suspend a User’s licence if they breach the terms and conditions in this Agreement. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
5.1. The User agrees that it shall only use SeePilot for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
5.2. Only one User may use a Worker’s user account. Two or more people may not share a Worker’s user account.
6. Registration and authorised users
6.1. The User must register an account in SeePilot to use SeePilot.
6.2. The Company may set any registration requirements in its absolute discretion.
6.3. The Organisation shall authorise Workers to access SeePilot in its absolute discretion. The Company accepts no liability for access to User Content by Users authorised by the Organisation or using login details of Users authorised by the Organisation.
6.4. The User is solely responsible for the security of its username and password for access to SeePilot.
6.5. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its SeePilot account.
7.1. The Organisation agrees and warrants that:
7.2. Any person who registers as or on behalf of an Organisation in SeePilot warrants that he or she is an authorised representative of that Organisation with the requisite authority to bind the Organisation to this Agreement.
8.1. A Worker’s access to SeePilot may be created, limited and cancelled by the Organisation at the Organisation’s discretion. Such access may include such features as described in clause 7.1 as the Organisation enables for the Worker.
8.2. The Worker agrees and accepts that:
9.1. The Organisation must pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once services are ordered or paid.
9.2. Where a Fee is paid for a particular term of access to SeePilot, the Organisation is not entitled to a pro-rata refund of any Fees if it elects to stop using SeePilot within that term. No refunds of Fees are offered other than as specified in this Agreement or as required by law.
9.3. The Company may revoke or suspend the User’s licence to access SeePilot for unpaid Fees without liability.
9.4. The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
9.5. All transactions are processed in Australian dollars and conversion rates may apply for foreign currencies.
9.6. GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
9.7. The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
9.8. Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
9.9. Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law, whichever is higher.
9.10. The User authorises the Company to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.
10. Customer Data
10.1. The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
10.2. The Organisation is responsible for the accuracy, quality and legality of User Content and the Organisation’s acquisition of it, and the Users that create, access and/or use User Content.
10.3. Despite clause 10.1 the Company shall be authorised to permanently delete User Content 30 days after the licence is terminated, or as otherwise negotiated in the licence.
10.4. The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for SeePilot).
11.1. Security. The Company takes the security of SeePilot and the privacy of its users seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
11.2. Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
11.3. Storage. The Company may limit the amount of data that the User stores in SeePilot and shall advise the User of such. Data that is stored with SeePilot shall be stored according to accepted industry standards.
11.4. Backup. The Company shall perform backups of SeePilot in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company will ensure it is able to recover all backups when requested by the Organisation.
12.1. The User agrees that the Company shall provide access to SeePilot to the best of its abilities, however:
12.2. Users may prepare for unscheduled unavailability of SeePilot by:
12.3. While the Company endeavours to ensure that SeePilot and the User Content continue to be available, the Company cannot guarantee that SeePilot or the User Content will operate or be available without any uninterrupted manner. Without limiting the generality of this clause 12.3, access to the Site or Service may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond the Company’s control. The Company shall not be liable if for any reason SeePilot or the User Content is unavailable at any time or for any period
12.4. As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter SeePilot. The Organisation will be notified of any major changes that impact known integrations 30 days beforehand.
12.5. The Company shall not exercise its rights under clause 3.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of SeePilot to the User, other than in accordance with the terms of this Agreement.
13. Intellectual Property
13.1. Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
13.2. Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any Third Party rights through the use of SeePilot.
13.3. The SeePilot Application. The User agrees and accepts that SeePilot is the Intellectual Property of the Company and the User further warrants that by using SeePilot the User will not:
13.4. Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including without limitation any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to SeePilot.
14.1. Information relating to the business operations, personal information and other information that should be confidential is Confidential Information
14.2. Each party acknowledges and agrees that:
14.3. A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
14.4. The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
15.3. The Company makes no warranty as to the suitability of SeePilot in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether SeePilot is appropriate for the Organisation’s circumstances.
15.5. The User agrees and accepts that SeePilot may be hosted on servers located outside Australia and may also use email servers located outside of Australia. However, specific server locations or services may be used as negotiated between The Company and The Organisation. Such services may host or transmit a Worker’s Personal Information.
16. Liability & Indemnity
16.1. The User agrees that it uses SeePilot at its own risk.
16.2. The User acknowledges that SeePilot does not provide occupational health and safety, or compliance advice.
16.3. The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
16.4. The User acknowledges that the Company is not responsible for the conduct or activities of any other User and that the Company is not liable for such under any circumstances.
16.5. The Organisation agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with SeePilot to the extent that such loss, damage, cost or expense is not caused by the act or negligence of the Company, including any breach by the User of this Agreement.
16.6. In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use SeePilot or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
16.7. Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
17.1. Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
17.2. Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out: (a) The steps taken to remedy the breach; or (b) Why the party believes it is not in breach as put forward in the Breach Notice, (c) Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
17.3. Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
18.1. Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
18.2. Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
18.3. Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
18.4. The rights and obligations under the relevant provisions of Clauses 4.1, 5.2, 10, 11, 13, 14, 15, 16, 19 and 21 survive termination of this Agreement.
19.1. Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions.
19.2. Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution.
19.3. Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in Clauses 19.1 and 19.2 unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
20. Force Majeure
20.1. If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
20.2. Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
20.3. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
20.4. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
20.5. The term of this Agreement will not be extended by the period of Force Majeure.
21. Electronic Communication, Amendment and Assignment
21.1. The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
21.2. The Organisation can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the Organisation of a change of details from time-to-time.
21.3. The Company will send the Organisation notices and other correspondence to the details that the User submits to the Company, or that the Organisation notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
21.4. A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.5. Notices must be sent to the parties’ most recent known contact details.
22.1. Assignment. The Organisation may not assign or otherwise create an interest in this Agreement. The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
22.2. Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
22.3. Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.4. Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.5. Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.6. Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.7. Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of New South Wales courts.
22.8. Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
23. Definitions and Interpretations
23.1. The following definitions apply in this document:
23.2. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise: