This document describes the Terms and Conditions that apply to you as a Site Administrator a of the application (i.e. where you can define the Site and enter payment details). Please read it prior to using EVA Emergency, it contains VERY IMPORTANT information, incl. what the application does and does not do.
EVA Emergency Mobile and Web Application – Terms and Conditions
(Administrator)
1. Terms
These terms and conditions (Terms) set out the legal terms and conditions on which the EVA Emergency (EVA) mobile and web application (Application) and services via the same are made available to you through Apple App Store or Google Play store. By installing, using or accessing the Application you accept these Terms. Where you enter into these Terms on behalf of a company or other entity you warrant to us that you have authority to do so and that these Terms will be legally binding on that company or entity. These Terms apply where you are an Administrator in the Application for a particular Company or Site. You must be 18 years of age or older to accept these Terms.
2. Purpose and Limits of the Application
2.1 The Application is a tool for open workplaces to ASSIST with notifications and enhance communications and information availability in case of emergencies. THE APPLICATION DOES NOT PROVIDE A FULL SOLUTION AND CANNOT BE SOLELY RELIED UPON BY YOU IN THE CASE OF ANY SUCH EMERGENCIES. YOU AGREE THAT THE APPLICATION WILL NOT BE USED AS THE SOLE SYSTEM OR PROCEDURE BY YOU IN CASE OF ANY EMERGENCY AT THE SITE.
2.2 You acknowledge and agree that you have read our Documentation available at
https://evaemergency.com which sets out the general functionality of the Application for you (as an Administrator) and other types of Users including how to install and properly use the Application.
2.3 IMPORTANT: YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION MAY NOT BE EFFECTIVE, AVAILABLE, RELIABLE OR ACCURATE AT ALL TIMES. Such unavailability or failure (in whole or in part) may arise from any of the following (including combinations of the same): (a) you or a User does not have a smartphone or their smartphone operating system does not support the Application, (b) you or a User fails to bring their smartphone to the Site or misplaces it at the Site or their smartphone ceases to work (due to damage or flat batteries), (c) you or another Administrator does not tell or invite a User to install the Application, (d) you or a User fails to properly install and log in the Application (including by entering incorrect log in details at the time of installation or at any future time), (e) you or a User logs out or uninstalls the Application, (f) you or a User changes their mobile number and you or another Administrator fails to update the details in the Application database, causing a log in failure, (g) you or a User selects smartphone settings which limit or disable functionality of the Application, (h) you or another Administrator fails to correctly set up and keep up to date the Application database or enter false or inaccurate information in the Application (including Site boundary, location of emergency equipment and assembly points, registration of Users and their details and allocation of Users to the Site), (i) you or a User does not understand our Documentation as to installing or using the Application, (j) you, another Administrator or a Warden fails to operate the Application in a timely and properly manner in case of an emergency (including failing to correctly describe the emergency, give instructions or input the hazard and its location or the assembly point(s) during an emergency or failing to update these as required), (k) there is no or insufficient mobile data or internet availability at the Site, (l) you or a User do not have mobile data or internet access on their smartphone or there is any loss or interruption to such services, (m) a GPS or location reading on your or a User’s smartphone is not accurate (which could result in you, a User or others heading towards instead of away from a hazard and in your, another Administrator’s or a Warden’s smartphone receiving false readings of that User’s location), (n) third party service providers (including providers of mobile data, maps, internet server, sms, GPS service, payment gateway etc.) (Third Party Service Providers) fail to provide services (Third Party Applications) required for the Application to work or function properly because such Third Party Applications are unavailable for any reason, (o) any viruses which affect the Application, your or a User’s smartphone or Third Party Applications, (p) any bugs or errors in the Application, (q) errors or inoperability of the Application arising from upgrades to the operating system of your or a User’s smartphones or you or a User failing to install any Upgrade we issue for the Application, (r) any free Application trial period for the Site ends and neither you (where you are a Company Administrator) nor another Company Administrator pays to continue to use the Application, and/or (s) we terminate your right to use the Application including because of any failure to pay the Fees (this could occur because of any expiry or cancellation of your (where you are the relevant Company Administrator) or another Company Administrator’s specified credit card details as relevant).
2.4 You acknowledge that the Application may not satisfy or comply with applicable Laws and work place safety requirement in the jurisdiction of the Site.
2.5 We and relevant Third Party Service Providers do not warrant or guarantee that GPS and location data provided via the Application will be precise, accurate, without error or be available at all times. As such, you acknowledge and agree that you will not rely upon such GPS or location data provided via the Application and release us and any Third Party Service Providers from all claims, costs, loss or liability arising from any error, inaccuracy or unavailability of such GPS or location data made available via the Application.
3. Licence
3.1 Subject to these Terms, we grant you a non-exclusive, non-transferable licence to run and use the Application on your computer and mobile device to use the functionality in the Application in respect of the Site solely for your own internal business and operational purposes. To avoid doubt, the licence does not grant you the right to distribute or use the Application on multiple mobile devices which you do not own, to sell, lease, licence or to authorise others to use the Application. The Licence does allow you, as an Administrator to invite Wardens and General Users to install and use a free version of the Application in respect of the Site.
3.2 You must comply with the terms of the relevant digital storefront where you downloaded the Application from (being the Apple App Store or the Google Play Store).
3.3 When we make an Upgrade available you must promptly install the same. If you fail to comply with this obligation the Application may cease to function or not function properly.
3.4 You are required to have Third Party Applications to use the Application.
3.5 You warrant you will comply with our Policies from time to time in respect of the Application including the use of the same.
4. Intellectual Property
4.1 We own and have the rights to use and licence the Application.
4.2 Nothing in these Terms or otherwise transfers any ownership in the Application and the Intellectual Property in the same to you.
4.3 You acknowledge that the names “ASSISTEM” and “EVA Emergency” and the logos in respect of the same are our trade marks or otherwise owned by our related companies (Marks). You are not authorised to use any of the Marks in any advertising, publicity or any other commercial manner without our prior consent and your use of the Application does not give you any title or ownership in the Marks.
4.4 You will not (directly or indirectly) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure, ideas, or algorithms of, or found at or through the Application (subject always to applicable Laws).
4.5 You agree to comply with the following in respect of any claim or allegation that the Application infringes the Intellectual Property rights of a third party:
4.5.1 you must inform us as soon as you become aware of any allegation or claim that the Application infringe the Intellectual Property rights of any third party and provide all relevant materials to us; and
4.5.2 you grant us the right to conduct the defence or resolution of such claims (we must give you notice of whether we will conduct the defence within 20 days of the date you give us notice of the claim or allegation).
4.6 If we elect to conduct the defence we will pay all legal costs in respect of the same and you will provide all reasonable assistance required by us to conduct the defence.
4.7 In any claim or action in respect to the Application infringing the Intellectual Property rights of a third party we may:
4.7.1 procure for you a right to continue using the Application from the party bringing or succeeding in the claim or action;
4.7.2 amend the Application so they no longer infringe the Intellectual Property rights of a third party; and/or
4.7.3 terminate these Terms and your right to use the Application immediately and on doing so we will refund to you any Fees which you have paid which relate to the use of the Application beyond the termination date (on a pro rata basis where applicable).
4.8 Where you create User Generated Content via the Application you will own all Intellectual Property Rights in the same. You grant us a non-exclusive licence to collect and use such User Generated Content and other Data (including a right to provide the same to Third Party Service Providers) to (a) allow us to provide the Application and associated functionality and services to you, and (b) provide notices and updates to the Application to you.
5. Data and Privacy
5.1 You agree to only collect, use and disclose data which identifies a natural person (including Users) (Personal Data) via the Application in accordance will all applicable Laws (including the Australian Privacy Act 1988 if applicable). You agree that you will use such Personal Data solely for the purposes of utilising the functionality of the Application (for example, you will not use or rely on such Personal Data to terminate an employee for breach of contract). You indemnify us for any claims, liability, loss or damage we incur from you breaching this clause including as a result of a User or other person bringing a claim against us.
5.2 You remain solely responsible for Personal Data you transmit via the Application.
5.3 You warrant that you have the right to collect and disclose all Data and Personal Data that you transmit or make available via the Application (including to us) and in doing so you do not breach any obligations of confidentiality, contractual arrangements or privacy law. We warrant that we will only use such Personal Data to provide the Application and services via the same to you. You warrant that no Data you transmit will infringe the Intellectual Property rights of any third party.
5.4 We do not guarantee that Data and Personal Data stored via the Application will be secure and free from interception however, as set out in our Privacy Policy, we will comply with our obligations to use reasonable efforts to secure Personal Data.
5.5 We will not provide you with Personal Data, Data or User Generated Content on the expiry or termination of these Terms and may delete any or all of the same at that time.
5.6 We will set up an account for you via which you can operate and access the Application. You agree to take reasonable steps to protect your account details and to keep them secret. You are responsible for all activities performed via your account and in using the Application including adding other Users to the Site to use the Application and loading data and information onto the account. You are responsible for the initial and ongoing configuration of the Application to your needs and requirements (including any mandatory or optional information or functionality provided by the Application) and for all alerts, messages, notifications and other data you send via the Application.
5.7 You agree that we may contact you by email or other means to update you about the Application and offerings and as to your use of the Application. We may include in our marketing materials that you are a customer and user of the Application (including Sites related to the same).
6. Use and Communications
6.1 You agree to comply with all Laws in your use of the Application and your dealings with us, other Users and third parties.
6.2 In using the Application you will communicate and generally deal with other Administrators, Wardens and General Users as selected by you or another Administrator. At all times you agree you are solely responsible for your interactions and conduct with other Users including for deciding what communications are transmitted and to whom and the content of such communications. For example, you are responsible for whether your notification displays as an emergency exercise or a real emergency.
6.3 You will ensure that the content of your data or communications and other information sent via or downloaded or used via the Application by you do not:
6.3.1 breach any Laws or any mandatory codes of conduct applicable to any Internet Service Provider;
6.3.2 infringe the Intellectual Property rights of any user or third party; or
6.3.3 contain obscene, defamatory, libellous or threatening materials or which encourages criminal or illegal conduct.
6.4 We have no obligation to either monitor the content provided by you or your use of the Application.
7. Fees
If you (where you are a Company Administrator) or another Company Administrator fail to pay Fees associated to a Site (including renewal Fees) you will cease to be able to use the Application and Users will also cease to be able to use the Application in respect of that Site.
8. Term and Termination
8.1 Your licence to use the Application commences when you accept these Terms and continues for the Licence Term subject to early termination allowed under these Terms.
8.2 To avoid doubt, on the expiry or termination of these Terms your licence to the Application also terminates or expires. You may terminate these Terms by notice to us or using the termination and uninstall functionality in the Application. Where you terminate these Terms for convenience you are not entitled to any refund of the Fees.
8.3 We may terminate these Terms at any time without cause. Where we terminate these Terms without cause we will refund to you any Fees which you have paid which relate to the use of the Application beyond the termination date (on a pro rata basis where applicable).
8.4 We may terminate the Terms without liability or suspend your account and use of the Application without liability if:
8.4.1 you breach any of these Terms or on reasonable grounds we consider you have done so;
8.4.2 you cause us to breach any obligation we have with the Internet Service Provider hosting the Application; or
8.4.3 you are subject to a Bankruptcy Event.
8.5 Where we terminate these Terms or suspend your use of the Application under clause 8.4 you are not entitled to any refund of Fees.
8.6 Termination does not affect any parties’ rights or remedies existing before termination or arising from termination.
9. Liability and Risk
9.1 TO THE EXTENT ALLOWED AT LAW, WE DISCLAIM AND EXCLUDE ALL CONDITIONS AND WARRANTIES, EXPRESS, IMPLIED OR IMPOSED BY LAW OR TRADE CUSTOM OR USAGE IN RESPECT OF THE APPLICATION AND SERVICES PROVIDED VIA THE SAME. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, QUALITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION OR THE SERVICES PROVIDED VIA THE SAME. THE APPLICATION AND THE SERVICES PROVIDED VIA THE SAME ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU AGREE THAT THE APPLICATION AND SERVICES ARE NOT GUARANTEED TO BE ERROR FREE.
9.2 AS THE APPLICATION IS PROVIDED OVER THE INTERNET AND MOBILE SERVICES WE CANNOT AND DO NOT MAKE ANY WARRANTY OR REPRESENTATION THAT:
9.2.1 THE USE OF THE APPLICATION WILL BE SECURE, TIMELY OR ERROR FREE;
9.2.2 WILL BE AVAILABLE AT ALL TIMES;
9.2.3 DATA SENT AND RECEIVED WILL BE PROMPTLY AND ACCURATELY DELIVERED.
9.3 UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY AMOUNT FOR ANY ECONOMIC, CONSEQUENTIAL, CONTINGENT, SPECIAL OR INDIRECT DAMAGES, OR LOSS OF BUSINESS, REVENUE OR PROFIT WITH RESPECT TO CLAIMS ARISING IN CONNECTION TO THE APPLICATION OR YOUR USE OF THE SAME OR FOR A BREACH OF CONTRACT OR LAWS, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LAW INCLUDING WHERE WE WERE AWARE OR HAD BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE OR LOSS.
9.4 OUR MAXIMUM LIABILITY TO YOU IN RESPECT OF ALL CLAIMS, LIABILITY OR COSTS ARISING FROM ANY OF OUR ACTS OR OMISSIONS, BREACH OF CONTRACT OR LAWS, OR FOR NEGLIGENCE OR UNDER ANY OTHER THEORY OF LAW IS LIMITED TO THE LESSER OF:
9.4.1 $50 (Australian dollars); OR
9.4.2 THE FEES (IF ANY) YOU HAVE PAID US IN RESPECT OF THE APPLICATION FOR ONE SITE IN THE 6 MONTHS PRIOR TO THE DATE YOU NOTIFY US THAT YOU ARE OR ARE CONSIDERING MAKING A CLAIM AGAINST US.
9.5 YOU AGREE THAT CLAUSE 9.4 IS:
9.5.1 A GENUINE PRE-ESTIMATE OF THE LIKELY LOSS AND DAMAGE YOU MAY SUFFER IN RESPECT OF THE MATTERS SET OUT IN THAT CLAUSE; AND
9.5.2 AN ESSENTIAL BASIS OF THE BARGAIN IN MAKING A CONTRACT AND THAT WITHOUT THE AVAILABILITY OF ENFORCING THIS PROVISION AS WRITTEN, THE PRICING WOULD BE SIGNIFICANTLY DIFFERENT OR WE WOULD NOT HAVE OFFERED THE APPLICATION TO YOU OR TO OTHER USERS.
9.6 OUR LIABILITY FOR A BREACH OF A CONDITION OR WARRANTY OF SUPPLY (INCLUDING A CONDITION OR WARRANTY IMPLIED BY ANY LAW (INCLUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH)) IS LIMITED TO (AS WE MAY DECIDE), (A) IN THE CASE OF GOODS, (I) THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS OR THE REPAIR OF THE GOODS, OR (II) THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS OR OF THE COST OF HAVING THE GOODS REPAIRED; AND (B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
9.7 We will not be liable for failure to perform our obligations under these Terms (including the availability of the Application) to the extent and for so long as our performance is prevented or delayed because of circumstances outside of our direct control (including labour disputes, obtaining labour, destruction or damage to our premises, the default or insolvency of any third party, an act of government or governmental authority, terrorism, disruption to the supply of power, gas, internet, water, electronic or telecommunication services, civil disorder, the weather or other natural events).
9.8 To the extent allowed by law, your release and indemnify us from all damages, costs, expenses and liabilities arising from any User installing or using the Application including any claims made against us by such Users.
10. Export Control
Your use of the Application is subject to any export or re-export technology control laws that apply to you (Export Control Laws). You shall strictly comply with all such Export Control Laws. You must not use the Application if the same is prohibited by US or Australian Export Control Laws or other Laws and you warrant to us that you are not prohibited from receiving US origin software, goods or services.
11. General
11.1 You may not assign your rights under these Terms or the licence to the Application without our prior written consent. We may use third parties to provide any part of the Application without notifying you or obtaining your consent. We may assign our rights and benefits under these Terms without your consent.
11.2 We can only waive any of our rights under these Terms in writing.
11.3 Subject to clause 11.4 the parties submit to the non-exclusive jurisdiction of the courts of South Australia and the Federal Court of Australia (Adelaide Registry) in respect of any matter connected with these Terms and the Application.
11.4 We are entitled to bring proceedings in any court in any jurisdiction in which you are located or use the Application where, acting reasonably, we consider such court provides the most efficient or convenient means for us to enforce these Terms and our rights under the same.
11.5 Notice can only be in writing and be given to a party either by:
11.5.1 registered post to the addressee’s last known place of business or residential address (notice by post is deemed to be received at the time at which the letter would be delivered in the ordinary course of post). Our address is as set out on our website;
11.5.2 email or sms to the addressee’s last known electronic address or mobile phone number (notice by email or sms is deemed to be received 48 hours after it is sent unless the sender receives a delivery failure or delay message); or
11.5.3 by means of functionality contained in the Application or as otherwise set out in our Policies.
11.6 Clauses 4.1, 4.2, 5.1 (indemnity only), 8.6 to 9.6, 9.8, 11.3, 11.4, 12 and 13 survive the termination of these Terms.
11.7 To the extent allowed by Laws you agree that all international conventions and treaties which would apply to these Terms which are excludable by the contracting parties are excludable from applying to these Terms and the provision of Application under the same.
12. Interpretation
In these Terms:
12.1 singular includes plural and vice versa;
12.2 reference to a person includes a body politic or corporate, an individual and a partnership and vice versa;
12.3 a reference to you includes your employees, directors, officers and agents and any acts and omissions of the same will be deemed to be your acts and omissions;
12.4 a reference to us in respect of any limit of liability in these Terms is deemed to include our employees, directors and officers;
12.5 a reference to a clause means all subclauses of a clause unless otherwise stated;
12.6 a reference to a smartphone is to a smartphone or mobile device which is compatible with the Application;
12.7 these Terms are the sole terms of our contract in respect of the Application;
12.8 no rule of construction applies to our disadvantage because we put forward these Terms; and
12.9 if a provision in these Terms would, but for this clause, be unenforceable (a) the provision must be read down to the extent necessary to avoid that result and (b) if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of these Terms.
13. Meanings
In these Terms:
A reference to the Application includes all functionality and services that are provided to you via the same.
Administrator means either a Company Administrator or a Site Administrator.
Bankruptcy Event means you (a) have a resolution passed for winding up or liquidation if you are a company, (b) become insolvent or bankrupt, (c) cannot pay you debts as and when they fall due, (d) have proceedings brought against it under any bankruptcy or insolvency law and such proceedings are not discharged or stayed within 15 days, (e) become subject to the appointment of an administrator, provisional liquidator, trustee, receiver or similar official, or (f) causes or is subject to any event that has analogous effect to any of (a) to (e).
Company Administrator means a user of the Application in respect of the Company and associated Sites with functionality being that of the Site Administrator plus the ability to initially register the Company and associated Sites, set up payment and assign the first Site Administrator and other Company Administrators.
Data means data and information (other than Personal Data) including what you send, forward, otherwise transmit or receive by means of the Application including any notifications you issue.
Documentation means our documentation from time to time as to the use, specifications and functionality of the Application.
Fees means the fees you or another Administrator pay to use the Application in respect of the Site which are paid through the Application.
General User means a user of the Application in respect of the Site with functionality being limited primarily for the same to be able to receive notifications, alarms and emergency descriptions from you, another Administrator or a Warden via the Application (see the Documentation for full details).
Intellectual Property means all Intellectual Property rights, title and interest in anything including (a) copyright (including in computer software and source code, development and performance documentation, manuals, engineering documentation and price lists), and (b) all patent and design rights (registered or unregistered) and any applications for the same, and (c) the trade marks rights.
Laws means all applicable laws (general law, statute and equity) and mandatory standards which are in force in the place where you use the Application.
Licence Term means, subject to early termination, the period we grant you a licence to use the Application when you contract and accept these Terms on the relevant digital shop front and any extension of the same you make via the Application.
Policies mean our policies from time to time in respect of the Application and includes our Privacy Policy.
Site means the site or sites you or another Administrator selects for using the Application.
Site Administrator means a user of the Application in respect of the Site with functionality being that of the Warden plus the ability to assign other Site Administrators for the relevant Site, enter the Site boundary (including the outer safe distance), the emergency equipment and assembly points and registering Users in the Application.
Upgrade means any version release, update or fix for the Application which we release and make available to you from time to time.
User means any Administrator, Warden or General User who has the Application in respect of the Site.
User Generated Content means content generated, created or brought about by you using the Application and this includes communications or Data you upload to the Application.
Warden means a User at the Site who you or another Administrator have authorised to be a warden in respect of the Application and whose functionality is that of a General User plus the ability to raise alarms and manage emergencies (including describing the emergency, giving instructions, changing the location or removing assembly points and inputting the type and location of hazards). See Documentation for full details.
you means the company or legal entity specified by you when you contract and accept these Terms on the relevant digital shop front or where none is specified means you as a natural person as specified at that time.
ASSISTEM PTY LTD (Australian Company Number 615 908 499)