ThinkSafe Membership Terms and Conditions

Definitions

ThinkSafe Membership (members):

Means any individual, company, trust, entity, partnership, joint venture, association, corporation, body corporate, or governmental agency. ThinkSafe Membership refers to the individual or legal entity that completes the registration process to gain access to and use the Platform including its Services. Where applicable, this term also includes any other legal entities on whose behalf the individual acts when registering for and using the Service, as well as any Authorised Users permitted by the Member.

Member Fee:

Refers to the recurring charge billed either monthly or yearly as chosen by the Member, which is detailed in the fee schedule accessible on the Website and/or Platform. This fee is subject to adjustments by ThinkSafe and may be updated at ThinkSafe’s discretion with such changes communicated to the Member as and when they occur.

Agreement:

Refers to the binding contractual relationship established between ThinkSafe and the Subscriber encompassing the provision, utilisation, and/or access to the Platform and its associated Services. This includes adherence to the stipulated Terms and Conditions herein and acknowledges any subsequent alterations or updates that ThinkSafe may introduce to these terms over time.

ThinkSafe Software:

Means the mobile application provided by ThinkSafe available for download and designed to facilitate access and interaction with the ThinkSafe Platform.

Intellectual Property Rights:

Refer to all ThinkSafe’s Intellectual Proprietary (IP) rights including but not limited to patents, copyrights, trademarks, service marks, trade secrets, know-how, business names, trade names, designs, legal rights in software, domain names, and any application or registration of these rights. This applies to such rights in any form, whether they are acknowledged or protected under current or future legislation anywhere in the world, both registered and unregistered.

Your ThinkSafe Annual Membership includes:

•A complete Health and Safety Management System and associated tools and resources to help you manage risks in your organisation.

•Ongoing advice and support for any Health and Safety issues.

•Incident support.

•Assistance with pre-qualification questionnaires.

•The ThinkSafe APP free of charge for 1 user (5 devices).

Note: The list above is not an exhaustive list of the Services offered to members and we may decide to offer additional Services or cease to provide any Services to members at any time.

Your Membership Terms and Conditions

1.Membership Duration and Renewal:

oYour ThinkSafe membership is offered as a low-cost annual licensed membership that is subject to annual renewal.

oYour ThinkSafe membership is licensed for a minimum twelve (12) month period.

oYour ThinkSafe membership is automatically renewed every year with a Renewal Notice sent out 21 days prior to the due date.

oIf you don’t wish to renew your membership, ThinkSafe must be notified in writing of this intention via email at least seven days before the renewal date, time being of the essence.

oIf you fail to properly notify your cancellation of membership in a timely manner, your renewal for the ensuing year shall be legally binding.

2.Early Cancellation:

oShould you choose to cancel your ThinkSafe membership within thirty (30) days of the Commencement Date (‘Early Cancellation’), you may do so by sending an email requesting the cancellation of your ThinkSafe membership.

oWe reserve the right to deduct an administration fee of $250.00 (exclusive of GST) for processing the Early Cancellation of your account.

oIf you terminate within thirty (30) days of the Commencement Date, refer to the section above titled Early Cancellation. In all other cases, termination of your Subscription Account will take effect at the end of your current minimum subscription period. You will not receive a refund of any fees, charges, or other amounts already paid or owing to us, and if applicable, will be required to continue paying monthly fees until the end of your minimum subscription period.

3.Licensed Membership:

oThe ThinkSafe licensed membership is for one business entity only.

oIf ThinkSafe assists you with a Prequalification, you agree that the term of your membership will be legally binding for the entire period covered by the respective Prequalification that ThinkSafe assisted you with.

4.Copyright Protection:

oThe ThinkSafe Health and Safety resources logo and the information on the website are protected by copyright and may not be reproduced, distributed, or transmitted in any form or by any means without the prior written permission of ThinkSafe Ltd.

5.Personal Information:

oWe may collect personal information such as your name, address, contact details, and identification details primarily for the purpose of and incidental to selling and promoting our services to you in a secure way. We collect personal information directly from you and will treat any information that you give us as confidential within our Company and related entities. However, we may use your information in any of the ways described and permitted by the Privacy Act 1993.

6.Payment Terms:

oYour membership is payable in full upon accepting these terms and conditions.

oMonthly Billing: When relevant, upon subscription, ThinkSafe will invoice the Subscriber for the upcoming month's Access Fee. This process repeats monthly, ceasing only upon the termination of this Agreement.

oFor those opting for annual billing, ThinkSafe will generate an invoice for the year's Access Fee following subscription. Annual invoicing will continue each year on the subscription anniversary until termination of this agreement.

oIf you do not pay in accordance with the payment terms set out, then you will be liable to pay for all debt collection and legal costs ThinkSafe incurs in utilising such services in the enforcement of any rights contained in these Terms and Conditions, including any actual solicitor’s fees and/or debt collection agency fees. Your license to use ThinkSafe material will expire forthwith and continued use is a breach of copyright and prohibited.

oFailure to settle owed amounts as agreed allows ThinkSafe to apply a monthly interest of 2.5% on the overdue amount, accruing and compounding daily.

oPostage and packaging (if applicable) are payable by you.

7.Confidentiality:

oEach party agrees to maintain the confidentiality of the other's information unless consent has been provided in writing or if disclosure is mandated by law. This includes:

Protecting all confidential data obtained during the agreement and not disclosing it or using it for any personal advantage unless specifically allowed by the terms of this Agreement.

The persistence of these confidentiality obligations even after the Agreement has ended.

Exceptions to these confidentiality obligations include information that is already public knowledge, legally obtained from third parties, previously known to the receiving party, or required to be disclosed by legal or regulatory authorities.

8.Privacy:

oThinkSafe adheres to the principles of the NZ Privacy Act 1993, upholding a privacy policy that clarifies both parties' responsibilities regarding personal information. ThinkSafe members should familiarise themselves with ThinkSafe’s privacy policy found at [ThinkSafe's website URL], as agreement to these Terms is regarded as acceptance of the privacy policy. The Subscriber confirms the lawful right to disclose any 'personal data' (as per the Privacy Act 1993 or equivalent legislation applicable to the Subscriber) that is shared with ThinkSafe in relation to this Agreement.

9.Force Majeure:

oWe are not responsible for failure to fulfil our obligations due to causes beyond our control.

Termination / Cancellation by ThinkSafe

•We may suspend or terminate your right to use or access all or any part of the Website, ThinkSafe APP, and Services at any time if:

oAny of our fees and charges in relation to your Membership Account have not been paid by the relevant due date.

oYou violate or breach these Terms.

oYou misuse or abuse any of the ThinkSafe Services provided to or accessed by you.

oWe consider that the use of any of the ThinkSafe Services by you may harm or diminish our name or reputation.

oWe reasonably consider it necessary to do so for security, legal, technical, intellectual property, or operational reasons.

oAny step is taken to appoint a receiver and manager, liquidator, or other like person over the whole or any part of your assets.

•ThinkSafe reserves the right to terminate your membership (and accordingly your right to access our Services) at any time if you breach the Terms, including but not limited to defaulting on your payment obligations. On termination, any fees or charges invoiced by us or which we were entitled to invoice on or prior to the date of termination but which have not been paid will remain payable. The termination will be without prejudice to either you or our rights and remedies in respect of breach of these terms by the other where the breach occurred before termination.

•We will use reasonable efforts to provide you with notice of any such suspension or termination by email and may cancel your membership forthwith.

Service Availability

•You agree that access to the ThinkSafe Service is reliant upon various factors outside of ThinkSafe’s control, including without limitation your internet service provider, global telecommunications links, our hosting and other service providers, and other factors which may impact upon the availability of the ThinkSafe Service. While we will use all reasonable endeavours to ensure that you have continuous access to the ThinkSafe Service and apps created thereon, we will not be liable to you or any other person for any loss or damage caused by unavailability of the ThinkSafe Service.

Disclaimer of Warranties

•You understand and expressly agree that use of the ThinkSafe Service and ThinkSafe Software is at your sole risk. The ThinkSafe Service and ThinkSafe Software are provided on an “as is” and “as available” basis. ThinkSafe expressly disclaims all warranties of any kind, whether express or implied, with respect to the ThinkSafe Service and ThinkSafe Software (including but not limited to the implied warranties of merchantability, fitness for a particular use or purpose, and non-infringement). ThinkSafe makes no warranty that the ThinkSafe Service or ThinkSafe Software will meet your requirements or that the ThinkSafe Service or ThinkSafe Software will be uninterrupted, timely, secure, or error-free. You understand and agree that any material and/or information downloaded or otherwise obtained through the use of ThinkSafe is done at your own discretion and risk and that you will be solely responsible for any damage or consequential losses arising therefrom. No advice or information, whether oral or written, obtained by you from ThinkSafe or through the ThinkSafe Service or ThinkSafe Software shall create any warranty not expressly made herein.

Limitation of Liability

•You understand and expressly agree that to the extent permitted under applicable law, in no event will ThinkSafe or its officers, employees, directors, shareholders, parents, subsidiaries, affiliates, agents, or licensors be liable under any theory of liability (whether in contract, tort, statutory, or otherwise) for any direct, indirect, incidental, special, consequential, or exemplary damages including but not limited to damages for loss of revenues, profits, goodwill, use, data, or other intangible losses (even if such parties were advised of, knew of, or should have known of the possibility of such damages) resulting from your (or anyone using your account’s) use of the ThinkSafe Service or ThinkSafe Software.

Resolution by Arbitration

•This agreement requires the use of arbitration on an individual basis to resolve disputes rather than injunctive legal actions, jury trials, or class actions and also limits the remedies available to you in the event of a dispute.

Exclusions and Limitations

•Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations and disclaimers in these Terms may not apply to you. To the extent that ThinkSafe may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of ThinkSafe liability shall be the minimum permitted under such applicable law. Unless expressly provided otherwise, the limitation of liability shall not exceed the amount of the fees paid by you to use for the provision of the ThinkSafe Service and ThinkSafe Software.

Indemnification

•You agree to indemnify, defend, and hold harmless ThinkSafe, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys' fees) that such parties may incur as a result of or arising from (a) any information (including without limitation your Submissions or any other content) you (or anyone using your account) submits, posts, or transmits through the ThinkSafe Service or ThinkSafe Software, (b) your (or anyone using your account’s) use of the ThinkSafe Service or ThinkSafe Software, (c) your (or anyone using your account’s) violation of these Terms, and (d) your (or anyone using your account’s) violation of any rights of any other person or entity.

European and United Kingdom Data Collection

•If you collect personal data in or from any person resident (or normally resident) in Europe or the United Kingdom, your actions occur under the prevailing EU data protection and privacy regulations and you are likely considered to be a “data controller”. You agree to ensure that your use of the ThinkSafe Service and ThinkSafe Software is compliant with prevailing EU data protection regulations. Should you qualify as a data controller under prevailing EU data protection and privacy regulations, you also acknowledge and agree to the ThinkSafe Data Processing Addendum, available at on request and as updated from time to time.

Security

•We maintain appropriate technical and operational measures, internal controls, and data security routines intended to protect your data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction. We are not responsible for the security of any data stored on any mobile device owned or controlled by you, your customers, or any other Service users.

Privacy and Data Processing

•By using the ThinkSafe Service or ThinkSafe Software you indicate acceptance of these terms and agree to our Privacy Policy. You agree that ThinkSafe shall process data on your behalf as necessary to provide you with the ThinkSafe Service and ThinkSafe Software, in accordance with our Privacy Policy, applicable data protection and privacy laws and, where applicable, the ThinkSafe Data Processing Addendum.

Amendments to Terms and Conditions

•ThinkSafe reserves the right to update or modify these Terms and Conditions at any time, at its sole discretion. Any changes will be effective immediately upon posting the updated Terms and Conditions on the ThinkSafe website. Your continued use of the ThinkSafe services following the posting of changes constitutes your acceptance of such changes. We encourage you to review the Terms and Conditions periodically to stay informed about any updates.

Miscellaneous

•These Terms constitute the entire and exclusive and final statement of the agreement between you and ThinkSafe with respect to the subject matter hereof and supersede any prior agreements or negotiations between you and ThinkSafe with respect to the subject matter hereof. These Terms and the relationship between you and ThinkSafe shall be governed by the laws of New Zealand as applied to agreements made, entered into, and performed. All lawsuits arising from or relating to these Terms or your use of the ThinkSafe Service and ThinkSafe Software shall be brought in New Zealand and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose. The failure of ThinkSafe to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavour to give effect to the intentions of ThinkSafe and you as reflected in the provision and that the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the ThinkSafe Service and ThinkSafe Software or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. All terms, as well as any limitations on liability explicitly set forth herein, shall remain in full force and effect notwithstanding any termination of your use of the ThinkSafe Service and ThinkSafe Software.

Disclaimer: To the fullest extent permitted by law, ThinkSafe Limited (and all those associated with it) disclaims all warranties express or implied in relation to the information within the ThinkSafe Health and Safety System. ThinkSafe Ltd. will not be liable to you for any damage, losses, costs, or expenses of any kind which arise out of or result from any use/misuse of the information contained within the ThinkSafe Health and Safety System.

 

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