For the provision of Services by:
Environmental Systems Solutions (ESS) Pty Ltd
ABN 85 100 839 450
Revised January 1st 2021
1.1 These definitions are provided in addition to those within the body of the Agreement.
“Agreement” refers to the document that outlines the goods and/or services that will be provided by ESS, and what is being paid for by the Client. This may be in the form of a quotation, Services Agreement, or invoice.
“Background Intellectual Property” means any Intellectual Property that pre-exists the Agreement or is independently developed outside the Agreement, which is owned or controlled by a Party and which that Party chooses at its sole discretion to make available for the purpose of carrying out the Services.
“Block” means a number of hours (or days) of Professional Services that the Client agrees to buy in advance of provision of such Professional Services.
“Client Content” means any data of the Client that is entered into the System provided by ESS by the Client.
“Confidential Information” means information disclosed by or on behalf of the Client to ESS for the purposes of this Agreement or in the course of providing the Services that:
and includes all copies, notes, analyses and records and all related information generated by ESS based on, derived from or arising out of any such disclosure and any documents or information that may be subject to legal professional privilege.
“Contract Material” means any material that is:
and includes but is not limited to presentations, advice, data, information, genealogies, briefing notes, field notes, correspondence, photographs, video footage, and pictorial representations of information.
“Intellectual Property” includes all copyright (including rights in relation to phonograms and broadcasts); all rights in relation to inventions, plant varieties, registered and unregistered trademarks (including service marks), registered and unregistered designs and patents, and circuit layouts; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
“Parties” means the parties to this Agreement, and Party means any one of them.
“Personal Information” means any of the following information provided by or on behalf of the Client to ESS: (a) any information that identifies or can reasonably be used to identify any individual or that can be reasonably associated or linked to any individual, such as first and last name, social security number or other government issued number or identifier, date of birth, home or other physical address, e-mail address or other online contact information, IP address, geolocation data, telephone number, financial account number, credit or debit card number, biometric data, mother's maiden name or any other personally identifiable information; (b) personally identifiable financial, health or insurance information; (c) any unique persistent identifier associated with an individual or a networked device, including a Client number held in a cookie, a user ID, an advertising ID, a browser fingerprint, a processor serial number, a device serial number, or any other number that uniquely identifies a particular telecommunications device, processor or computer; (e) any information that is treated as personal information or its equivalent by an applicable privacy or data security Law; or (f) any other information relating to an individual that is combined with any information in clause (a) of this definition.
“Professional Services” means any implementation, installation, training, consulting, custom development or other professional services provided by ESS to the Client under any Agreement.
“Services” means the services required to be performed by ESS as set out in the Agreement.
“System” refers to the software applications (e.g. web applications, databases, file storage) that ESS provides for use by the Client as part of the Agreement.
“Traditional Knowledge” means the knowledge, innovations and practices of Indigenous and local communities around the world.
1.2 In the interpretation of the Agreement, the following rules apply unless the context otherwise requires.
2.1 Services commence and terminate on the dates specified in the Agreement or when one party terminates the Agreement, or the Agreement is terminated under any clause in Section 11 of these Terms.
3.1 ESS will provide the Services set out in the Agreement
3.2 In providing the Services, ESS will:
4.1 In consideration for providing the Services, the Client will pay ESS the Charges specified in, and according to, the Payment Schedule or invoice (as set out by the Agreement)
4.2 The Client will pay ESS via Electronic Funds Transfer (EFT) within 14 days of receiving a valid invoice from ESS.
4.3 The Client is not obliged to pay the Charges until it is reasonably satisfied that ESS has performed the Services in accordance with the Agreement.
4.4 Unless otherwise indicated, the Charges and all other considerations for any supply made under this Agreement are inclusive of any GST imposed on the supply.
4.5 ESS agrees to pay all taxes, duties and government charges imposed or levied in Australia or elsewhere in connection with the Agreement, including any GST payable in respect of the Agreement or the Services, and indemnifies the Client against any failure to comply with this Clause
5.1 ESS is engaged as an independent contractor and nothing in the Agreement shall be deemed to constitute ESS as an agent or employee of the Client for any purpose.
5.2 ESS agrees that:
5.3 ESS must not incur any financial or other obligation on behalf of the Client, or make any representation on behalf of the Client, except with the prior written consent of the Client.
5.4 ESS must meet all employer responsibilities (if any) as defined under the Income Tax Assessment Act 1997 (Cth) and ESS hereby indemnifies the Client with respect to any such responsibilities.
6.1 ESS must maintain the insurance policies required at law to provide the Services.
6.2 ESS must notify the Client immediately if an insurance policy required under this Clause is cancelled.
6.3 ESS must, if requested by the Client, provide satisfactory evidence to the Client of the existence and currency of the insurance policies
6.4 If ESS takes out a “claims made” policy, which requires all claims and any fact situation or circumstance that might result in a claim to be notified within the period of insurance, ESS must maintain the policy (or a policy in like terms) for the duration of the Agreement and for a period of 7 years on and from the expiry or the early termination of the Agreement.
6.5 If ESS takes out an “occurrence” policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of event can occur at any time subsequently, ESS must maintain the policy during the term of the Agreement.
6.6 ESS should also maintain insurance policies of the types and with the amounts of coverage that a prudent operator in ESS’s industry would consider normal and adequate including when performing contracts of this kind.
7.1 ESS agrees that they will keep all Confidential Information confidential and take all reasonable steps to protect and maintain such confidentiality.
7.2 Upon the written request of the Client, ESS must return to the Client any documents, information or material which embody Confidential Information, including all Contract Material, and must not keep any copies, notes or records of such documents, information or material in any form without the prior written consent of the Client.
7.3 The obligations under this Clause continue to apply beyond the expiry or termination of the Agreement.
7.4 The obligations of ESS under this Clause will not be taken to have been breached to the extent that Confidential Information:
8.1 Parties agree that the ownership of Background Intellectual Property is not affected by the Agreement and that all Background Intellectual Property remains the property of the Party that makes it available for the purpose of carrying out the Services.
8.2 For any Background Intellectual Property of ESS which is incorporated into the Contract Material, ESS grants the Client a royalty-free, non-exclusive, worldwide, irrevocable, perpetual licence (including a right to sub-licence) to use, modify, adapt, communicate, publish, and broadcast such Background Intellectual Property but only as part of the Contract Material.
8.3 ESS warrants that all Contract Material provided under the Agreement and used by the Client does not infringe the intellectual property of third parties.
8.4 ESS must respect the rights of Traditional Owners to preserve the cultural integrity of their Cultural and Intellectual Property by maintaining the cultural context and spirit of the Traditional Knowledge and Traditional Cultural Expression.
9.1 Any Professional Services to be provided will be described in an Agreement and will be provided on a time-and-materials basis, unless otherwise set forth on the applicable Agreement. The Client shall provide ESS with (a) reasonable assistance to facilitate scheduling and performance of Professional Services; (b) information required to perform the Professional Services; and (c) an engagement manager/contact to help ensure effective delivery of the Professional Services. Professional Services are accepted when delivered unless otherwise set forth in the applicable Agreement.
9.2 The Client may purchase a Block, whether as part of any Agreement. If the Client has purchased a Block, ESS shall deduct the number of hours used for Professional Services from the Block until the number of hours is zero. The Client will be notified that no hours remain within this Block and will be able to choose to purchase an additional block, or be invoiced at the current rate for Professional Services (on an agreed interval). Thereafter, ESS shall invoice the Client at the current rate for Professional Services, except in the event that the Client purchases another Block (unless such other Block is consumed). Upon request, ESS shall email the Client within five business days after the end of each calendar month setting forth the number of hours remaining in any Block purchased by the Client.
10.1 The Client may request that ESS develop any Add-on Feature. The Parties may negotiate an Agreement therefore, which shall include the payment of Professional Services fees to develop the Add-on Feature. Upon acceptance of the Agreement, the Client shall be licensed to use the Add-on Feature. ESS shall be the sole owner of all right, title and interest in and to any improvement to the System provided by ESS, including any modification, alteration or enhancement made to any Add-On Feature that may be developed in accordance with this Section 9.3. The Client hereby assigns to ESS all of the Client’s right, title and interest in and to any intellectual property in any Add-On Feature.
11.1 Either Party may terminate the Agreement at any time by providing 14 days’ notice in writing to the other Party.
11.2 The Client may reduce the scope of the Services at any time and in its absolute discretion by providing not less than 7 days’ written notice to ESS.
11.3 Any termination of the Agreement does not affect any obligations incurred by ESS before termination.
11.4 The amount (if any) owed by the Client to ESS on termination of the Agreement is the fair value of the work performed by ESS up to the date of termination
11.5 The Client is not liable to make any further payment to ESS.
11.6 ESS may suspend access to the System provided by ESS (a) in the event of any failure to pay Fees when due or (b) in the event of any other breach of the Agreement that is not cured within 15 days after notice thereof to the Client.
11.7 When communicating with ESS, the Client shall not be abusive, obscene, threatening, harassing or racially offensive, or otherwise behave inappropriately. If ESS feels that the Client’s behaviour towards any of ESS’s representatives is at any time threatening or offensive, ESS reserves the right to immediately Terminate the Agreement and associated Service, including the Client’s access to the System provided by ESS.
12.1 The Client shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Content including any Personal Information and use and processing of any Client Content including any Personal Information hereunder. The Client shall be responsible for obtaining any consent that may be required to collect, submit and use Client Content including any Personal Information on the System provided by ESS. The Client shall be solely responsible for ensuring that the collection, disclosure, analysis and use of Client Content including Personal Information complies with any applicable Law. The Client shall not use the System provided by ESS to collect or otherwise transmit to ESS any sensitive Personal Information, including any financial account number, financial information, driver’s license number, passport number, government identification number, health information or biometric data. The Client shall maintain a policy that complies with applicable Law in respect of handling of Personal Information.
12.2 ESS agrees that all systems used to process, and store Client Content will adhere to commercially reasonable security standards. ESS may process and store Client Content with a Third Party at a location where such Third Party maintains facilities. ESS takes data security very seriously and will vigorously pursue all actual or threatened security breaches. The Client agrees to report any security concerns to [email protected].
12.3 The Client will own all Client Content. Nothing shall permit ESS to disclose Client Content to any Third Party, except at the request of Client
12.3 The Client will own all Client Content. Nothing shall permit ESS to disclose Client Content to any Third Party, except at the request of Client.
12.4 Use of the System provided by ESS is also governed by ESS’s Privacy Policy located at https://essolutions.com.au/privacy-policy. By using the System provided by ESS, the Client accepts and agrees to abide by the terms of the Privacy Policy.
12.5 The System and associated Client Content will primarily be stored and provided from virtual machines and storage devices located in Australia. All Client Content stored by the System will be backed up daily to off-site storage also located in Australia. Any Client Content stored by a Third Party will be subject to the backup arrangements and location of the Third Party.
12.6 Upon ceasing an Agreement with ESS or upon Client request, all Client Content will be returned to the Client as digital files in the same file formats they were stored in by the System (i.e. no file conversion). All Client Content stored by a Third Party will need to be obtained from the Third Party. The Client Content will be transferred digitally via a suitable network connection. The hours required to prepare Client Content for return to the Client are considered a Professional Service and must be paid for accordingly.
12.7 ESS will retain backups of Client Content for a period of 12 months beyond the cease date of the Agreement (unless requested by the Client to delete them prior).
12.8 In the case of a major service interruption or unforeseen event that causes the System to be unavailable, ESS will restore Client Content from backups and restore the System as quickly as possible. The hours required to resolve the System interruption will not be considered Professional Services.
13.1 In no event shall either party be liable to the other party for any loss of data, profits, revenues or use of the System provided by ESS, or for any special, incidental, consequential, punitive, multiple or other indirect damages, arising out of or in connection with the use or performance of the System or this agreement.
13.2 ESS does not warrant that the System it has provided will operate error-free or that ESS will correct any error. The System provided by ESS and any services are provided “as is” and “as-available”. ESS does not warrant that any Client content will be accurate or reliable. ESS and its Third-Party suppliers disclaim all other warranties, express or implied, with respect to the System or services furnished under this agreement, including without limitation any warranty of merchantability, fitness for a particular purpose, accuracy, reliability, course of dealing, course of performance or usage in trade. Any use of the System or services by any party, including Client, in any high-risk application, including without limitation in connection with any Client software which is a high-risk application, is done at the user’s own risk, without any warranty. A “High Risk Application” is any application or use where the failure of the System provided by ESS or Professional Services could cause serious risk, including risk of injury to persons or property, or a life-threatening situation, including medical, aviation, navigation, emergency services, or emergency weather alerts. ESS is not responsible, directly or indirectly, via the System provided by ESS or Services or otherwise, for providing any medical, legal, financial or other advice subject to regulatory oversight, or acting as a doctor, lawyer, broker, insurance agent or other regulated entity.
13.3 The Client hereby agrees to defend, indemnify and hold harmless ESS from any costs (including reasonable attorneys’ fees), expenses, claims, liabilities, judgments, damages or losses (collectively, “Losses”), in each case, arising out of any claim by a Third Party to the extent alleging (a) any failure by the Client to comply with any applicable Laws; (b) any violation of privacy rights of any Third Party by the Client; (c) any gross negligence or intentional misconduct of the Client; (d) use of the System provided by ESS by the Client in combination with products or software not provided by ESS; (e) any modification, alteration or enhancement of the System provided by ESS not created by or on behalf of ESS; or (f) any infringement or misappropriation of any patent, copyright, trademark or trade secret of any Third Party by any Client Content.
14.1 The Client agrees that the systems provided by ESS may not be available during any Maintenance Window (occurring between 8-11pm Australian Eastern Standard Time on Friday, which may be reasonably shortened or extended by ESS from time to time).
14.2 Most Systems provided by ESS integrate with third-party software (including Fulcrum) to provide certain functionalities. By using any System provided by ESS that integrates with third-party software, the Client agrees to comply with the terms of service, end-user license agreement or other relevant agreement in such third-party software. Any Client that uses an ESS System that is integrated with Fulcrum must read and agree to the Fulcrum terms of service (found at https://www.fulcrumapp.com/terms-of-service). Although ESS manages the Client’s subscription to Fulcrum, it is the Client’s responsibility as the end-user to understand and abide by Fulcrum’s terms of service. Upon Client’s request, ESS shall make available a list of all third-party software that is being used or included as part of the Client’s system.
14.3 The Client shall be responsible for procuring all hardware and software necessary to use the system provided by ESS, or that may be used to integrate with or connect to the system.
14.4 The Client represents, warrants and covenants to ESS that: (a) all Client Content has been collected in compliance with all applicable Laws and policies; (b) no Client Content contains any confidential or proprietary information that the Client does not have authority to make available via the System provided by ESS; (c) the Client has the right to submit all Client Content for storage and use or have received all necessary consents and approvals; (d) the Client shall use all Client Content in compliance with all applicable Laws and policies; (e) the Client’s use of the Client Content does not infringe or violate the rights of any Third Party.
14.5 ESS may provide links to third-party websites on the System provided by ESS, and some of the Client Content may be supplied by any third party. ESS has no responsibility or accountability for any third-party website or any content made available by any Third Party. A link to any other website or service is not an endorsement of that website or service or the information it provides. The Client’s use of any information on any third-party site is at the Client’s own risk.
14.6 If the Client elects to provide ESS with any suggestion, idea for improvement, recommendation or other feedback (collectively, “Feedback”), ESS may use such Feedback without any restriction or payment, including to improve the System provided by ESS.
14.7 ESS has the right to collect and analyse data relating to provision, use or performance of the System provided by ESS, and ESS may (a) use such data to improve the System or for other development, diagnostic or corrective purposes in connection with the System or to develop other ESS offerings; (b) disclose such data solely in aggregate or de-identified form; and (c) use any such improvement or make any such disclosure without limitation hereunder.
14.8 The Client hereby grants to ESS a worldwide, non-exclusive, royalty-free, non-transferable license to use the Client’s trademarks, service marks or logos for the purpose of identifying the Client as a user of the System provided by ESS in order to promote this System. If the Client prefers that ESS not use Client’s name or logo in a particular way, please contact [email protected] and ESS will respect the Client’s wishes.