Terms of Agreement – Smart Welding Manager
If you are entering into the agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates.
If you register for a free trial for our services, the terms will also govern that free trial.
You may not access the services if you are our direct competitor, except with our prior written consent. In addition, you may not access the services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This document was last updated on 1 January 2015.
1. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means the service agreement.
“Beta Services” means our services that are not generally available to customers.
“Content” means information obtained by us from our content licensors or publicly available sources and provided to you.
“Documentation” means our online user guides, documentation, and help and training materials, as updated from time to time, accessible via the applicable service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the services, including, for example, the heroku add-ons catalog located at https://addons.heroku.com/, and any successor websites.
“Non SPMT applications” mean web-based or offline software applications that are provided by you or a third party and interoperate with our service.
“Order Form” means an ordering document specifying the services to be provided hereunder that is entered into between you and us or any of our affiliates, including any addenda and supplements thereto. By entering into an order form hereunder, an affiliate agrees to be bound by the terms of the agreement as if it were an original party hereto.
“Purchased Services” means services that you or your affiliate purchase under an order form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by you under a free trial or an order form and made available online by us, including associated offline components, as described in the documentation. “Services” exclude content and non-SPMT applications.
“SPMT” means Smart Project Management Tools, a trading name of Vision-Pro Consulting Australia Pty Ltd, the company described in section 13 and the website www.smartpmtools.com.
“SWM” means Smart Welding Manager, a welding management software product developed by Vision-Pro Consulting Australia Pty Ltd. It is this product and associated services the service agreement will cover.
“User” means an individual who is authorized by you to use a service, for whom you have ordered the service, and to whom you (or we at your request) have supplied a user identification and password. Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.
“We,” “Us” or “Our” means Vision-Pro Consulting Australia Pty Ltd, the company described in section 13 (who you are contracting with, notices, governing law and jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting the agreement, and affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for you to the purchased services or collected and processed by or for you using the purchased services, excluding content and non-SPMT applications.
2. Free trial
If you register for a free trial, we will make one or more services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable service(s), or (b) the start date of any purchased service subscriptions ordered by you for such service(s).
Any data you enter into the services during your free trial will be permanently lost unless you purchase a subscription before the end of the trial period.
Notwithstanding section 9 (representations, warranties, exclusive remedies and disclaimers), during the free trial the services are provided “as-is” without any warranty. Please review the user manual during the trial period so that you become familiar with the features and functions of the services before you make your purchase.
3. Our responsibilities
3.1. Provision of purchased services. We will (a) make the services and content available to you pursuant to the agreement and the applicable order, (b) provide support for the purchased services to you at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online purchased services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which we shall give at least 8 hours electronic notice, and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), internet service provider failure or delay, non-SPMT application, or denial of service attack.
3.2. Protection of your data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data, as described in the documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your data by our personnel except (a) to provide the purchased services and prevent or address service or technical problems, (b) as compelled by law in accordance with section 8.3 (compelled disclosure) below, or (c) as you expressly permit in writing.
3.3 Our personnel. We will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under the agreement, except as otherwise specified herein.
3.4 Beta Services. From time to time, we may invite you to try beta services at no charge. You may accept or decline any such trial in your sole discretion. Beta services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta services are for evaluation purposes and not for production use, are not considered “services” under the agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any beta services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the beta services becomes generally available. We may discontinue beta services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a beta service.
4. Use of services and content
4.1 Subscriptions. Unless otherwise provided in the applicable order form, (a) services and content are purchased as subscriptions for the agreed duration, (b) subscriptions may be upgraded during a subscription term at the agreed pricing.
4.2 Usage limits. Services and content are subject to usage limits, including, for example, the quantities specified in the service agreement. Unless otherwise specified, (a) the service or content may not be accessed by more than that number of users, (b) a user’s password may not be shared with any other individual, and (c) a user identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the service or content.
4.3 Your Responsibilities. You will (a) be responsible for users’ compliance with the agreement, (b) be responsible for the accuracy, quality and legality of your data and the means by which you acquired your data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of services and content, and notify us promptly of any such unauthorized access or use, (d) use services and content only in accordance with the documentation and applicable laws and government regulations, and (e) comply with terms of service of non-SPMT applications with which you use services or content.
4.4 Usage Restrictions. You will not (a) make any service or content available to, or use any service or content for the benefit of, anyone other than you or users, (b) sell, resell, license, sublicense, distribute, rent or lease any service or content, or include any service or content in a service bureau or outsourcing offering, (c) use a service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any service or third-party data contained therein, (f) attempt to gain unauthorized access to any service or content or its related systems or networks, (g) permit direct or indirect access to or use of any service or content in a way that circumvents a contractual usage limit, (h) copy a service or any part, feature, function or user interface thereof, (i) copy content except as permitted herein or in an order or the documentation, (j) frame or mirror any part of any service or content, other than as permitted in the documentation, (k) access any service or content in order to build a competitive product or service, or (l) reverse engineer any service.
5. Non-SPMT providers
5.1. Acquisition of non-SPMT products and services. We or third parties may make available (for example, through a marketplace or otherwise) third-party products or services, including, for example, non-SPMT applications and implementation and other consulting services. Any acquisition by you of such non-SPMT products or services, and any exchange of data between you and any non-SPMT provider, is solely between you and the applicable non-SPMT provider. We do not warrant or support non-SPMT applications or other non-SPMT products or services, whether or not they are designated by us as “certified” or otherwise, except as specified in an order form.
5.2. Non-SPMT applications and your data. If you install or enable a non-SPMT application for use with a service, you grant us permission to allow the provider of that non-SPMT application to access your data as required for the interoperation of that non-SPMT application with the service. We are not responsible for any disclosure, modification or deletion of your data resulting from access by a non-SPMT application.
5.3. Integration with non-SPMT applications. The services may contain features designed to interoperate with non-SPMT applications. To use such features, you may be required to obtain access to non-SPMT applications from their providers, and may be required to grant us access to your account(s) on the non-SPMT applications. If the provider of a non-SPMT application ceases to make the non-SPMT application available for interoperation with the corresponding service features on reasonable terms, we may cease providing those service features without entitling you to any refund, credit, or other compensation.
6. Fees and payment for purchased services
6.1. Fees. You will pay all fees specified in the service agreement. All fees mentioned are in United States Dollars. Except as otherwise specified herein or in an order form, (i) fees are based on services and content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) service levels purchased cannot be decreased.
6.2. Invoicing and payment. You will provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for all purchased services listed in the order form for the initial subscription term and any renewal subscription term(s) as set forth in section 12.2 (term of purchased subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable order form. If the order form specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the relevant order form. Unless otherwise stated in the order form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
6.3. Overdue charges. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future subscription renewals and order forms on payment terms shorter than those specified in section 6.2 (invoicing and payment).
6.4. Suspension of service and acceleration. If any amount owing by you under this or any other agreement for our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full. We will give you at least 10 days’ prior notice that your account is overdue, in accordance with section 13.2 (manner of giving notice), before suspending services to you.
6.5. Payment Disputes. We will not exercise our rights under section 6.3 (overdue charges) or 6.4 (suspension of service and acceleration) above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “taxes”). You are responsible for paying all taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect taxes for which you are responsible under this section 6.6, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
6.7. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
7. Proprietary rights and licenses
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our/their right, title and interest in and to the services and content, including all of our/their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
7.2. License by us to use content. We grant to you a worldwide, limited-term license, under our applicable intellectual property rights and licenses, to use content acquired by you pursuant to order forms, subject to those order forms, the agreement and the documentation.
7.3. License by you to host your data and applications. You grant us and our affiliates a worldwide, limited- term license to host, copy, transmit and display your data, and any non-SPMT applications and program code created by or for you using a service, as necessary for us to provide the services in accordance with the agreement. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under the agreement in or to your data or any non-SPMT application or program code.
7.4. License by you to use feedback. You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or users relating to the operation of the services.
8. Confidentiality
8.1. Definition of confidential information. “Confidential Information” means all information disclosed by a party (“disclosing party”) to the other party (“receiving party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your confidential information includes your data; our confidential information includes the services and content; and confidential information of each party includes the terms and conditions of the agreement and all order forms (including pricing), as well as technology and technical information, product plans and designs, and business processes disclosed by such party. However, confidential information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party, or (iv) was independently developed by the receiving party.
8.2. Protection of confidential information. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any confidential information of the disclosing party for any purpose outside the scope of the agreement, and (ii) except as otherwise authorized by the disclosing party in writing, to limit access to confidential information of the disclosing party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with the agreement and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those herein. Neither party will disclose the terms of the agreement or any order form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this section 8.2.
8.3. Compelled Disclosure. The receiving party may disclose confidential information of the disclosing party to the extent compelled by law to do so, provided the receiving party gives the disclosing party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s confidential information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that confidential information.
9. Representations, warranties, exclusive remedies and disclaimers
9.1. Representations. Each party represents that it has validly entered into the agreement and has the legal power to do so.
9.2. Our warranties. We warrant that (a) the agreement, the order forms and the documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data, (b) we will not materially decrease the overall security of the purchased services during a subscription term, (c) the purchased services will perform materially in accordance with the applicable documentation, (d) subject to section 5.3 (integration with non-SPMT applications), we will not materially decrease the functionality of the purchased services during a subscription term, and (e) the purchased services and content will not introduce malicious code into your systems. For any breach of an above warranty, your exclusive remedies are those described in sections 12.3 (termination) and 12.4 (refund or payment upon termination).
9.3. Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Content and beta services are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
10. Mutual indemnification
10.1. Indemnification by us. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of a purchased service in accordance with the agreement infringes or misappropriates such third party’s intellectual property rights (a “claim against you”), and will indemnify you from any damages, legal fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a claim against you, provided you (a) promptly give us written notice of the claim against you, (b) give us sole control of the defense and settlement of the claim against you (except that we may not settle any claim against you unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance. If we receive information about an infringement or misappropriation claim related to a service, we may in our discretion (i) modify the service so that it no longer infringes or misappropriates, without breaching our warranties under section 9.2 (our warranties), (ii) obtain a license for your continued use of that service in accordance with the agreement, or (iii) terminate your subscriptions for that service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a claim against you arises from content, a non-SPMT application or your breach of the agreement.
10.2. Indemnification by you. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your data, or your use of any service or content in breach of the agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “claim against us”), and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a claim against us, provided we (a) promptly give you written notice of the claim against us, (b) give you sole control of the defense and settlement of the claim against us (except that you may not settle any claim against us unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance.
10.3. Exclusive remedy. This section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section 10.
11. Limitation of liability
11.1 Limitation of liability. Neither party’s liability with respect to any single incident arising out of or related to the agreement will exceed the amount paid by customer hereunder in the 12 months preceding the incident, provided that in no event will either party’s aggregate liability arising out of or related to the agreement exceed the total amount paid by customer hereunder. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. However, the above limitations will not limit customer’s payment obligations under section 6 (fees and payment for purchased services).
11.2. Exclusion of consequential and related damages. In no event will either party have any liability to the other party for any lost profits, revenues or indirect, special, incidental, consequential, cover or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
12. Term and termination
12.1 Term of agreement. The agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of purchased subscriptions. The term of each subscription shall be as specified in the applicable order form. Except as otherwise specified in an order form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediate prior term unless we have given you written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3. Termination. A party may terminate the agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or payment upon termination. If the agreement is terminated by you in accordance with section 12.3 (termination), we will refund you any prepaid fees covering the remainder of the term of all order forms after the effective date of termination. If the agreement is terminated by us in accordance with section 12.3, you will pay any unpaid fees covering the remainder of the term of all order forms. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination.
12.5. Your data portability and deletion. Upon request by you made within 30 days after the effective date of termination or expiration of the agreement, we will make your data available to you for export or download as provided in the documentation. After that 30-day period, we will have no obligation to maintain or provide your data, and will thereafter delete or destroy all copies of your data in our systems or otherwise in our possession or control as provided in the documentation, unless legally prohibited.
12.6. Surviving provisions. The sections titled “fees and payment for purchase services,” “proprietary rights and licenses,” “confidentiality,” “disclaimers,” “mutual indemnification,” “limitation of liability,” “refund or payment upon termination,” “portability and deletion of your data,” “who you are contracting with, notices, governing law and jurisdiction,” and “general provisions” will survive any termination or expiration if the agreement.
13. Who you are contracting with, notices, governing law and jurisdiction
13.1. General. You are contracting with Vision-Pro Consulting Australia Pty Ltd under the agreement, and any notice required to be given under the agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as may have been notified by that party for such purposes, or sent by fax or email as set out in the order form. Notices to SPMT shall be addressed to Vision-Pro Consulting Australia Pty Ltd, PO Box 6858, Upper Mount Gravatt QLD 4122, Australia Attn: Director.
13.2. Manner of giving notice. Except as otherwise specified in the agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant services system administrator designated by you.
13.3. Agreement to governing law and jurisdiction. The agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Australia. The parties irrevocably agree that the courts of Australia have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the agreement or its subject matter or formation (including non¬-contractual disputes or claims).
13.4. No agency. For the avoidance of doubt, we are entering into the agreement as principal and not as agent for any other SPMT company. Subject to any permitted assignment under section 14.4, the obligations owed by us under the agreement shall be owed to you solely by us and the obligations owed by you under the agreement shall be owed solely to us.
14. General provisions
14.1. Export compliance. The services, content, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. Government denied-party list.
14.2. Anti-corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with the agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify us.
14.3 Entire agreement and order of precedence. The agreement is the entire agreement between you and us regarding your use of services and content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in your purchase order or in any other of your order documentation (excluding order forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable order form, (2) the agreement, and (3) the documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign the agreement in its entirety (including all order forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate the agreement upon written notice. In the event of such a termination, we will refund to you any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, the agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the parties. The parties are independent contractors. The agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-party beneficiaries. Our content licensors shall have the benefit of our rights and protections hereunder with respect to the applicable content. There are no other third-party beneficiaries under the agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under the agreement will constitute a waiver of that right.
14.8. Severability. If any provision of the agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the agreement will remain in effect.
