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1              Application of Terms

1.1      These Terms apply to your use of the Services and the App (as those terms are defined below). By subscribing to or using the Services and/or downloading or using the App:

a        you agree to be bound by these Terms; and

b       where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2     If you do not accept these Terms, you are not authorised to access and use the Services or the App, and you must immediately stop doing so.

1.3     We reserve the right to change these Terms (Amendments) at any time. Any Amendments will be posted on the Websites (and the “last updated” date will be updated).  By continuing to access or use the Services or the App from the date on which the Terms are changed, you agree to be bound by the Amendments. We recommend you regularly review this page to see any updates or changes to our Terms.

1.4     These Terms were last updated on 17 March 2021

2              Interpretation

In these Terms:

App means any software application provided by us for use in connection with the Services, including any update.

Fees means the applicable fees set out on our pricing pages on the Websites at https://getonside.com and or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 3.6.

Force Majeure means an event that is beyond the reasonable control of a party, excluding:

a        an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or

b       a lack of funds for any reason.

including and similar words do not imply any limit.

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Onside, we, us or our means the contracting entity defined in clause 14.

a party includes that party’s permitted assigns.

a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

personal information means information about an identifiable, living person.

personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Services means the services having the core functionality described on the Websites, as the Websites are updated from time to time.

Start Date means:

  • the date that you first subscribe to, access or use the Services or the App; or
  • such other date that you and we agree in writing will be the date on which your right to access and use the Services will commence.

Subscription Period means the subscription period you have selected for the Service or otherwise agreed in writing between you and us, e.g. monthly, annual, multi-year.

Terms means these terms titled Onside terms of use.

Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Services and the App, including any third-party solutions, systems and networks.

Websites means the internet sites at the domain names ending in getonside.com, or such other site notified to you by us.

You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

Your Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Services or the App.

Words in the singular include the plural and vice versa.

A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

3              Payment

3.1     You must pay the Fees. Payments can be made either by direct transfer, direct debit or credit card.

3.2    If you are paying the Fees by direct debit or credit card:

a        the Fees will be debited to your nominated account or charged to your valid credit card in advance of each Subscription Period; and

b       if we are unable to collect the Fees from your nominated account or credit card for any reason, including where there are insufficient funds, you have revered the direct debit authority or your card has expired, you remain responsible for any uncollected amounts and we may suspend or cancel your access to the Service without giving you notice.

3.3    If you are paying the Fees by direct transfer, we will issue invoices to you in advance of each Subscription Period or as otherwise agreed in writing between you and us. All Fees contained in the invoice are payable on the date the invoice is raised, unless otherwise agreed in writing between you and us.

3.4    All payments are non-refundable. If you aren’t able to satisfy your payment obligations within 30 days of the due date, we have the right to charge a late fee and/or suspend or terminate access to the Services.

3.5    We reserve the right to review your use of the Service and invoice for the use of any Services being used by you and not currently being paid for.

3.6    We may increase the Fees for the paid versions of the Services with effect from the start of a Subscription Period by giving at least 90 days’ notice.  If you do not wish to pay the increased Fees, you may terminate your subscription with effect from the end of the then-current Subscription Period in accordance with clause 4.  If you do not terminate your subscription with this clause, you are deemed to have accepted the increased Fees.

4              Subscription term

4.1     If you have subscribed to a paid version of the Services, we will provide the Services from the Start Date for the initial Subscription Period.

4.2    To make renewal as easy as possible, your subscription to the Services includes an automatic renewal of Services. This is to ensure you have continued access to the Services if, for whatever reason, we are unable to reach you towards the end of your Subscription Period. Unless you cancel your subscription at least 60 days prior to the end date of a Subscription Period, your subscription to the Services will automatically renew for a further Subscription Period at our then standard price.

4.3    If we don’t receive your written cancellation at least 60 days before the end of the initial or any subsequent Subscription Period, you agree to the renewal.

5              Your acknowledgements and obligations

5.1     By accessing and using the Services and/or the App you agree that:

a        neither Onside nor any of its personnel are responsible in any way for your or your personnel’s health and safety while on a worksite or elsewhere;

b       the App and the Services and the information on each are no substitute for your own care and efforts for your own health and safety and the health and safety of others;

c        you will take all practicable steps and comply with all applicable laws to look after your own health and safety, and the health and safety of your employees, contractors, invitees and others on each worksite and other workplace; and

d       you will not:

i         use the Services or the App for any unlawful purpose;

ii        take any action which may disrupt access to, cause damage to, or interfere with the proper operation of the Services or the App, including any action that may result in the introduction of any viruses, trojan-horse type programs, malware or any other material which is malicious or technologically harmful;

iii       use the Services or the App other than for your internal business and personal work purposes; or

iv       resell or make available the Services or the App to any third party, or otherwise commercially exploit the Services or the App.

5.2    When accessing the Services and/or the App, you and your personnel must:

a        not impersonate another person or misrepresent authorisation to act on behalf of others or us;

b       correctly identify the sender of all electronic transmissions;

c        not attempt to undermine the security or integrity of the Underlying Systems;

d       not use, or misuse, the Services or the App in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;

e        not attempt to view, access or copy any material or data other than:

i         that which you are authorised to access; and

ii        to the extent necessary for you to use the Services and the App in accordance with these Terms; and

f        not use the Services or the App in a manner, and not transmit, input or store Your Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

5.3    You must procure that your personnel who access or use the Service and/or App comply with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.  A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.

5.4    You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services and App, including to use, store and input Your Data into, and process and distribute Your Data through, the Services and App.

6              Information provided “as is”

6.1     Onside does not:

a        warrant the accuracy, reliability, adequacy, completeness or fitness for purpose of any data or information displayed on the Services or the App;

b       undertake to keep the Services or the App updated;

c        accept responsibility for the content or privacy practices of any third-party websites or applications that may be linked to the Services or the App; or

d       accept any liability for any promise, warranty or representation given by any third party during any sales, marketing, on-boarding, set-up or training received by you.

6.2    You acknowledge that the Services and the App (and the information and data displayed thereon):

a        are provided for guidance and informational purposes only and are subject to change;

b       should not be considered complete, nor should they be solely relied on for the management of your business or work; and

c        are not intended as a substitute for, nor do they replace, your own business and work records.

7              Our liability

7.1     To the maximum extent permitted by law, we will not be responsible or liable to you or any other person for any loss or damage:

a        in relation to your access and use of the Services or the App, including if the Services or the App are unavailable (in whole or part) or performing slowly;

b       in connection with any errors, omissions or misstatements in any information or data on the Services or the App;

7.2     We are not liable to you under or in connection with these Terms or relating to the Services or the App for any:

a        loss of profit, revenue, savings, business, use, data (including Your Data), and/or goodwill; or

b       consequential, indirect, incidental or special damage or loss of any kind.

7.3     These exclusions apply regardless of whether our responsibility or liability arises in contract, tort (including negligence), statute or otherwise and for any loss or damage however caused (including direct, indirect, incidental, special or consequential loss or damage).

8              Indemnity

You will defend and indemnify us and our personnel against all costs, expenses and damages incurred in connection with any claim brought by a third party against us or our personnel arising from or, in connection with, any breach by you of these Terms and/or your or your personnel’s use of the Websites, the Services or the App.

9              Intellectual Property

9.1     We own all Intellectual Property Rights in and to the Services and the App. Except as expressly stated in these Terms, these Terms do not grant you any Intellectual Property Rights in or to, or any other rights or licences in respect of, the Services or the App or the information and data contained thereon.

9.2    We grant you a non-exclusive, non-transferable, irrevocable licence to use and access:

a        the Services and/or the App; and

b       the data and information displayed on the Services and the App for as long as you access the Services and/or the App in accordance with these Terms,

for your own internal business purposes in accordance with these Terms.

9.3    You own the Intellectual Property Rights in, and are solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data.

9.4    If you provide us with ideas, comments or suggestions relating to the Services, the App or the Underlying Systems (together feedback):

a        all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and

b       we may use or disclose the feedback for any purpose.

10           Your Data

10.1    You grant to Onside a non-exclusive right to use Your Data:

a        to provide the Services and the App to you;

b       to facilitate and ensure Onside’s compliance with its legal and regulatory obligations; and

c        as otherwise set out in this clause 10, required by law or expressly permitted by you.

10.3   You must arrange all consents and approvals that are necessary for us to access Your Data as described in clause 10.1.

10.2   You acknowledge that in using the App and/or the Services, you become part of a community of users (Onside Community).  The Onside Community benefits from pooled information collected via the Services and/or the App.  You will have access to that pooled information where it relates to you and Your Data will become part of that pool.  Where Your Data relates to other members of the Onside Community, you grant those members a non-exclusive right to use Your Data for their respective business purposes.

10.3   Where you or we terminate your rights to access and use the Services and the App, then we will no longer collect Your Data.  Historical information (including Your Data) will continue to be held by us and used by members of the Onside Community where it also relates to other active members of the Onside Community.

10.4   You acknowledge and agree that:

a        we may:

i         use Your Data and information about your and your personnel’s use of the Services and App to generate anonymised and aggregated statistical and analytical data (Analytical Data);

ii        use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and

iii       supply Analytical Data to third parties;

b       our rights under clauses 10.4aii and iii above will survive termination or expiry of these Terms; and

c        title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

10.5   We may disclose Your Data to our related companies and our third party service providers for the purposes set out above. We may also disclose Your Data to any regulatory agency if:

a        you have expressly consented to such disclosure; or

b       we are legally required to do so.

11           Personal information

11.1     The way that we use and disclose your personal information is explained in our Privacy Policy. By using the Services and/or the App you permit us to collect, hold, process, use and share your personal information in accordance with our Privacy Policy.

11.2    You acknowledge and agree that to the extent Your Data contains personal information, in collecting, holding and processing that information through the Services and App, we are acting as your agent and/or service provider and/or data processor for the purposes of the Privacy Act 2020 and any other applicable privacy and data protection laws.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

12           Apple Inc. terms (for iPhone or other Apple mobile device users)

12.1    This clause 12 applies if you download, access or use the App on an iPhone or other Apple mobile device.

12.2   You acknowledge that these Terms are between us and you, and not Apple Inc (Apple). You are given a revocable, non-transferable and non-exclusive license to use the App (including any updates to it) on your mobile device in accordance with these terms and conditions and the Apple Usage Rules in the App Store Terms of Service.

12.3   In the event that any failure of the App to conform to any applicable warranty (whether under New Zealand consumer law or otherwise), Apple will refund the purchase price (if any) for the App, however, subject to these terms and conditions, we are solely responsible for the App, and Apple Inc. is not responsible for the App in any way. To the maximum extent permitted by law, Apple has no warranty obligations whatsoever with respect to the App. You agree that we, and not Apple, are responsible for the following things:

a        the content of the App;

b       addressing any claims by you or a third party in relation to the App, including but not limited to product liability claims, claims that the App fails to confirm to legal or regulatory requirements or consumer protection claims;

c        investigating any claim that the App breaches third party Intellectual Property Rights, and for defending, settling or discharging such claim; and

d       maintenance and support services for the App.

12.4   Any questions, complaints or claims with respect to the App should be directed to us at the following address: [email protected]

12.5   You warrant that you are not located in a country that is subject to a US Government embargo or is designated by the US Government as a “terrorist supporting” country, and you are not listed on any US Government list of prohibited or restricted parties.

12.6   You acknowledge and agree that:

a        Apple and its subsidiaries are third party beneficiaries of these terms and conditions and that Apple has the right to (and will be deemed to have accepted the right) to enforce these terms and conditions against you as a third-party beneficiary; and

b       ‘iPhone’ and the ‘App Store’ are trademarks of Apple, registered in the U.S. and other countries.

13      Termination and suspension

13.1    If you are using the free version of the Services and App, you can terminate these Terms and your right to access and use the Services and App at any time by disabling your account and deleting the App.

13.2   If you have subscribed to a paid version of the Services and you cancel your subscription in accordance with clause 4, these Terms and your right to access and use the Services and App will terminate at the end of the then-current Subscription Period.

13.3   Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Services and App if the other party:

a        breaches any material provision of these Terms and the breach is not:

i         remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

ii        capable of being remedied; or

b       becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

13.4   Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

13.5   On termination of these Terms, you must pay all Fees for the provision of the Services prior to that termination.

13.6   No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

13.7   Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Services and/or App and/or delete, edit or remove relevant Your Data if we consider that you or any of your personnel have:

a        undermined, or attempted to undermine, the security or integrity of the Services or App or any Underlying Systems;

b       used, or attempted to use, the Services or App:

i         for improper purposes; or

ii        in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services;

c        transmitted, inputted or stored any Your Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

d       otherwise materially breached these Terms.

14           Contracting Entity, disputes and governing law

The company that you are contracting with under these Terms is stated below.  These Terms are governed and will be construed in accordance with law stated below. You submit to the non-exclusive jurisdiction of the courts stated below for any matter or dispute arising in relation to these  Terms.

If you are domiciled in: you are contracting with: the governing law is the law of: and we and you submit to the non-exclusive jurisdiction of the courts of:
Australia Onside Pty Limited, a company incorporated in Australia, ABN 86 646 795 342 NSW, Australia NSW, Australia
Any other country other than Australia. Onside Limited, a company incorporated in New Zealand, company number 5788788 New Zealand New Zealand

 

15           General

15.1    Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

15.2   No person other than you and us has any right to a benefit under, or to enforce, these Terms.

15.3   For us to waive a right under these Terms, that waiver must be in writing and signed by us.

15.4   Subject to clause 11.2, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

15.5   If we need to contact you, we may do so by email or by posting a notice on the Website or App.  You agree that this satisfies all legal requirements in relation to written communications.  You may give notice to us under or in connection with these Terms by emailing [email protected]

15.6   Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6, 7, 8, 9.1, 9.3, 9.4, 13.5 – 13.6 and 14.7, continue in force.

15.7   If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.  If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms.  The remainder of these Terms will be binding on you.

15.8   Subject to clauses 1.3 and 3.6, any variation to these Terms must be in writing and signed by both parties.

15.9   These Terms set out everything agreed by the parties relating to the Services and the App, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the Services or the App that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.

15.10  You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.

 

Last updated 17 March 2021