Terms & Conditions
The website accessed via the URL at semstoolkit.com (“Website”) and the online tool for assessing and managing the sustainability of your event accessible at semstoolkit.com/sems (“SEMS”) and are owned and operated by The Watermark Group Sustainable Event Solutions Pty Ltd (ACN ) ("SES").This is an agreement between the user of the Website and SEMS ("you") and SES. By using this website you are agreeing to abide by these terms and conditions. If you do not accept these terms and conditions then do not use the website or SEMS.
PARTS OF THIS AGREEEMENT
This Agreement consists of the following terms and conditions (“Terms of Use”) which relate to you as a user of the Website and the SEMS Tool and the terms and conditions specific to you as a Licensee of SEMS (“License Terms"). The Terms of Use and License Terms are collectively referred to as the “Terms”. In the event of a conflict between the Terms of Use and the License Terms, the License Terms shall prevail.
VARIATION OF TERMS
SES may change the Terms at its discretion upon notice. Notice shall be given either by an email sent to you or posting to the Website. By continuing to use this Website and the SEMS Tool you accept the Terms as they apply from time to time. The Terms are in no way limited or altered by any other terms or conditions on this website.
TERMS OF USE
A reference to ‘the website’ in this section should be read as a reference to both the Website and SEMS.
LINKS
This website contains links to other websites. These links are provided for your convenience and information. SES does not represent or warrant the accuracy or any other aspect of the information on those linked sites. No link is an endorsement or recommendation of any information, goods or services on the linked website.
INTELLECTUAL PROPERTY
All trademarks mentioned on this website belong to their respective owners. Unless otherwise indicated, SES owns all intellectual property in the Website. Nothing in the these terms and conditions gives you a right to use any of SES’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features
CONFIDENTIALITY
Some of the content on this website may be restricted to certain authorised individuals and as such may included information which is confidential to SES. You must respect the confidentiality of such information and not disclose this information to any other person unless authorised by SES or required by law.
USE OF WEBSITE MATERIAL
No material on this website can be reproduced, adapted, distributed, stored in a retrieval system or transmitted without prior written consent from SES. You may only access and use the content for non-commercial or personal uses, unless you have prior written approval from us. You may print out any content on this website for your personal use. All other use, copying or reproduction of this website or any part of it is prohibited (except to the extent permitted by law). None of the content or any part of it may be reproduced on any other website. You may not create any derivative works from this content.
EXCLUSION OF WARRANTIES
You expressly understand and agree that your use of this website is at your sole risk and that the Website and SEMS Tool are provided "as is" and “as available.” Other than any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this clause to be void, SES expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. Without limiting the foregoing, SES does not represent or warrant to you that:
• your use of this website will meet your requirements,
• your use of this website will be uninterrupted, timely, secure or free from error,
• that defects in the operation or functionality of website or the SEMS Tool will be corrected.
You acknowledge that any material downloaded or otherwise obtained through the use of this website is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or other device or loss of data that results from the download of any such material.
LIMITATION OF LIABILITY
SES excludes all liability for any consequential loss resulting from use of this website, including but not limited to loss of opportunity, lost revenue, lost profits, loss of data, and losses resulting from security failure, disclosure of confidential information by other parties, or the transmission of a computer virus. To the fullest extent permitted by law, SES’s liability for breach of any implied warranty or condition which cannot be excluded is limited, at SES’ option, to the following: (a) the supply of the services again, or (b) the payment of the cost of having services supplied again.
INDEMNITY
If you breach these terms and conditions or any other legal obligation related to your access and use of this website then you agree to indemnify SES for any loss, damage or costs it may incur in connection with that breach or legal obligation.
TERMINATION
SES may terminate this agreement and your access to the website at any time without notice. In the event of termination, you are no longer authorised to access this website, but all restrictions imposed on you, licenses granted by you and all SES disclaimers and limitations of liability set out in these terms and conditions will survive.
MISCELLANEOUS
This agreement will be governed by and construed in accordance with the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales. If any provision of this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the agreement which will continue in full force and effect.
USE OF SEMS
The following terms apply specifically to your use of SEMS.
You may only access or use SEMS if you are authorised to do so under a valid and existing SEMS License Agreement or SEMS Auditor Agreement. In accessing SEMS you warrant that you have made yourself familiar with the terms of the SEMS License Agreement or SEMS Auditor Agreement, and agree to be bound by them. Without in any way limiting the terms of either of those agreements you agree to the following.
SEMS and the Services are not intended for personal, domestic or household use or consumption and you agree that your use of SEMS is solely for business purposes.
You shall not (and must not allow any third party) do any of the following:
• gain unauthorised access or attempt to gain unauthorised access to SEMS or data generated by any other licensee of SEMS ;
• prevent access to or the use of SEMS by other licensed users of SEMS;
• copy, reproduce, republish, upload, post, transmit, resell or distribute SEMS or the content of SEMS or the Website;
• use or allow any third party to use SEMS for an event other than the event for which you have been granted access to SEMS;
• charge any third party a fee for use of SEMS;
• attempt to enable or disable features or functionalities in SEMS or the Website;
• decompile, disassemble, or otherwise reverse engineer SEMS;
• perform or attempt to perform any actions that would interfere with the proper working of SEMS.
• remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the SEMS Tool, or any material generated through the use of the SEMS Tool.
By uploading any information or other material to the SEMS Tool you grant to SES a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence to do the following in respect of the information or material:
• use, copy, sublicense, redistribute, adapt, transmit, publish and/or broadcast, publicly perform or display, and
• sublicense to any third parties the unrestricted right to exercise any of the foregoing rights granted.
PROVIDED THAT SES complies with its obligations of confidentiality with respect to that information and material as contained in the SEMS License Agreement and its obligations to you under its Privacy Policy.
Your access to SEMS will continue until it is terminated either by you, SES, or the SEMS Licensee under which you are authorised to access SEMS.
SES may, without notice and at any time, terminate its agreement with you and prevent you from accessing SEMS if:
• you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to; comply with the provisions of the Terms); or
• you have breached the terms of the SEMS License Agreement or SEMS Auditor Agreement under which you are authorised to access SEMS; or
• the SEMS License Agreement or SEMS Auditor Agreement under which you are authorised to access SEMS has expired or been terminated.
SEMS LICENSE AGREEMENT
1 GRANT OF LICENCE
1.1 The services provided by SES are described on the Website (“Services”).
1.2 In consideration for purchasing credits to use Services through SES’s online shop (“Credits”), SES:
(a) agrees to provide the Services; and
(b) grants the person or entity in whose name the Credits were purchased (“Licensee”) a non-exclusive licence to access and use SEMS (“Licence”) for the purposes outlined in the product description of the relevant service:
on the terms and conditions of this agreement and subject to all procedures and directions contained on the Website.
1.3 The Licensee must ensure that all persons the Licensee authorises to use SEMS (“SEMS Users”) comply with these terms and conditions and all procedures and directions contained on the Website for the use of SEMS and/or the Services.
1.4 The Licensee may extend the term of its Licensee and increase the range and quantum of Services provided to it by SES by purchasing additional Credits.
1.5 The Licensee may permit up to (but no greater than):
(a) 3 people to use SEMS as a ‘producer’ (as defined in SEMS); and
(b) 100 additional people to use SEMS as a ‘supplier’ (as defined in SEMS)
to use SEMS simultaneously from separate computer terminals anywhere in the world provided that each person is registered with SEMS and has agreed to abide by the terms and conditions governing the use of SEMS by completing the registration process contained on the Website.
1.6 The Licensee may increase the number of Producers who have simultaneous access to SEMS by contacting SES through the /Contact_Us/Contact_Us and paying SES the applicable additional fees specified by SES from time to time.
1.7 The Licensee must indemnify SES against any loss or claim of any kind arising from use of SEMS by any User.
2 FEES AND CREDITS
2.1 SES may vary the fees charged for any Service at its discretion at any time on notice. Notice shall be given by changing the Fees specified in the SEMS Shop.
2.2 The Licensee must pay SES all Fees for the Licence and the Services in advance. Fees are deemed to have been paid when SES receives cleared funds. If SES gives the Licensee access to SEMS and for any reason it does not receive payment in full of all monies due, then SES may withdraw the Licensee’s access to SEMS without notice and SES is not obliged to provide any Services.
2.3 The Licensee may redeem credits for Services by logging into SEMS and following the instructions (for a SEMS Self-Assessment, SEMS Measurement Module, or SEMS Audit) or by logging into the website and submitting a request for Consulting Services.
2.4 Any fees paid for unused Credits are non-refundable.
3 SCOPE OF SEMS
3.1 The Licensee warrants and agrees that:
(a) the Licensee has inspected SEMS and has made its own assessment of the utility of SEMS to its business;
(b) SES makes no representation and gives no warranty that the Licensees use of SEMS will improve the sustainability or environmental impact of an event; and
(c) although some environmental indicators are covered by SEMS, SEMS is not an environmental impact assessment.
4 AUDIT SERVICES
4.1 The Licensee may request that SES audit its Self-Assessment of an event. To request an audit the Licensee must:
(a) Purchase an Audit Credit by following the directions in in the SEMS Shop;
(b) complete a Self-Assessment;
(c) upload evidence to the SEMS event as required to support the answers the Licensee has provided in the Self-Assessment; and
(d) submit the event for audit by clicking the ‘audit’ button on the event Details Tab on the event Dashboard for the SEMS event.
4.2 Upon receiving a request for an audit, SES will do the following
(a) Take all reasonable steps to respond within 72 hours with an estimated time for completion of the audit;
(b) Appoint an appropriately qualified person who is independent of the Licensee (Auditor) who will review both the answers and the evidence that the Licensee has provided and assess whether the evidence the Licensee has provided supports the answers that the Licensee has given.
(c) The Auditor may, in their absolute discretion, contact the Licensee to discuss various areas of the event so as to clarify all details being assessed.
4.3 If, in the Auditor’s opinion, the evidence that the Licensee has provided does not adequately supports the answer that the Licensee has given to a question then the Auditor may request additional evidence..
4.4 Based on all of the evidence provided, the Auditor may change the answers provided by the Licensee’s in the SEMS Tool. As a result the SEMS Score(s) for the event may change.
4.5 Once the Auditor has reviewed the SEMS event and made any adjustments they wish to make, then the Auditor will issue an audited version of the SEMS event and an audit report to the Licensee.
4.6 The Auditor’s decision is final, and no correspondence will be entered into.
5 CONSULTING SERVICES
5.1 The Licensee may request that SES assist it with training and answering questions on the use of SEMS, or assisting or facilitating the Licensee’s use of SEMS (“Consulting Services”).
5.2 To request Consulting Services the Licensee must:
(a) purchase the relevant Credit in the SEMS Shop; and
(b) complete a request for consulting support by logging in and going here - https://semstoolkit.com/support/support.asp; .,
5.3 SES will supply the Licensee with Consulting Services for the number of hours specified in the Credits purchased, which are charged on a time and materials basis in fifteen minute increments.
5.4 SES reserves the right to charge in part for any Consulting Services which have been scheduled to be provided on a specified date where that date is either changed or the Licensee advises SES that the Support Services are no longer required.
6 INTELLECTUAL PROPERTY
6.1 For the purposes of this agreement, “Intellectual Property” means all forms of intellectual property throughout the world including patents, petty patents, innovation patents, patentable inventions, know-how, trade marks (whether registered or unregistered), copyright, registered and registrable designs, circuit layout rights, applications for registration of any of the foregoing and rights to apply for registration of any of the foregoing.
6.2 SES warrant that the Licensees use of SEMS in compliance with this agreement will not infringe the Intellectual Property rights of any third party.
6.3 The Licensee acknowledges and agrees that:
(a) SES is the sole and exclusive owner of all Intellectual Property in SEMS, the Website and all documents and data uploaded to or generated by the use of SEMS, the Website and the Services, other than any documents created independently of the SEMS Tool by the Licensee and which the Licensee uploads to SEMS as evidence to support its answers to SEMS questions; and
(b) SES may use said Intellectual Property in any way it sees fit provided that SES shall not publish any data generated from the use of SEMS in such a way that a person could identify the data as being the result of an individual event or group of events managed by the Licensee.
6.4 The Licensee must not (and must not allow any third party, including any Third Party User to) do any of the following:
(a) gain unauthorised access or attempt to gain unauthorised access to SEMS or the Website or data generated by any other licensee of SEMS;
(b) copy, reproduce, republish, upload, post, transmit, resell or distribute SEMS or the content of SEMS or the Website;
(c) use or allow any third party (including but not limited to any Third Party User) to use SEMS for an event other than the event specified in the Services Schedule;
(d) charge any third party (including but not limited to any Third Party User) a fee for use of SEMS;
(e) work around any technical limitations in SEMS or the Website;
(f) enable or disable features or functionalities (that are otherwise disabled or enabled, respectively) in SEMS or the Website;
(g) decompile, disassemble, or otherwise reverse engineer SEMS;
(h) perform or attempt to perform any actions that would interfere with the proper working of SEMS, the Website or any of the Services;
(i) prevent access to or the use of SEMS, the Website or any Services by Our other licensees or customers, or
(j) otherwise use SEMS except as expressly allowed under this agreement.
6.5 SES will take all reasonable steps to ensure that any data input into SEMS is not published or made publicly available in a format which would enable it to be reasonably identified as the data of the Licensee. The Licensee acknowledges that SES may publish material including anonymised SEMS data.
7 LICENSEE REFERENCES TO SEMS
7.1 The Licensee must not at any time publish in any promotional or other material of any kind any reference to SES, SEMS, any other party using SEMS, or any data generated by use of SEMS, unless:
(a) this agreement has not been terminated; and
(b) the data was audited under clause 4 of this agreement, or
(c) the Licensee makes an unambiguous and prominent statement in connection with the publication that the results were derived from unaudited self-assessment data.
(d) it is to communicate and promote the permissible marketing materials distributed when purchasing a SEMS license.
7.2 If the Licensee does make a reference to SEMS as permitted under clause 7.1 then the Licensee must comply with the brand use guidelines as updated from time to time. The brand use guidelines can be viewed on the Website.
8 EXCLUSION AND LIMITATION OF LIABILITY
8.1 Nothing in this agreement is or should be interpreted as an attempt to modify, limit or exclude terms or warranties which are imposed by statute (including but not limited to the Competition and Consumer Act 2010) and which cannot be modified, limited or excluded.
8.2 Subject to clause 8.1, SES excludes all representations and warranties other than those given expressly in this agreement. For the avoidance of doubt the Licensee acknowledges and agrees that SES made no representation or warranty that the Website or SEMS would be error free or that access to and use of the Website and SEMS would be uninterrupted.
8.3 The Licensee acknowledge and agree that in determining to enter into this agreement the Licensee does not rely upon any pre-contractual representations, discussions, communications that are not expressly set out in this agreement.
8.4 The Licensee agrees that SEMS and the Services are not ordinarily acquired for personal, domestic or household use or consumption and that its use of SEMS and that of and all Third Party Users is solely for business purposes.
8.5 Subject to clause 8.1, SES’ liability for breach of this agreement (including any warranty), for negligence or other tort and for breach of statutory duty or warranty shall be limited, at its option, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again,
8.6 Subject to clause 8.1, SES is not liable, whether for breach of contract, negligence or other tort or breach of statutory duty or warranty for:
(a) interruption to or unavailability of the Website or SEMS caused by internet failure, hardware failure, power outage or other causes other than SES’ deliberate and unlawful action;
(b) any damage to any computer hardware or software owned or used by the Licensee, any User or Third Party Use, or the loss or corruption of any data;
(c) loss of profit, loss of revenue, loss of savings on overheads or expenses;
(d) loss of goodwill or reputation;
(e) loss arising from business interruption;
(f) loss arising from or in connection with any contamination or pollution; or
(g) economic, consequential or indirect loss.
8.7 For the avoidance of doubt but subject to clause 8.1, the limitations and exclusions in this clause apply to loss incurred in respect of personal injury and loss arising from wilful acts and omissions.
9 TERM AND TERMINATION
9.1 The term of this agreement commences on the date the Licensee purchases a Credit for a Service and expires on that date 365 days after the date on which the Licensee redeems its last Credit, unless terminated earlier by either party.
9.2 SES may, at its option, by written notice to the Licensee, terminate this agreement and/or the Licence and the Licensee’s use of SEMS and the Website if the Licensee:-
(a) (or a SEMS User authorised to use the Website or SEMS) breaches any term of the Terms of Use or the License Agreement; or
(b) enters into any administration in insolvency, including but not limited to bankruptcy, receivership, provisional liquidation, liquidation, voluntary administration or enters into any arrangement or compromise with creditors, ceases to trade or is, in SES’ opinion, insolvent.
9.3 Upon expiration or termination of this Agreement, SES will withdraw all access to SEMS.
10 PRIVACY
10.1 For the purposes of this clause “Personal Information” has the meaning as defined in the Privacy Act 1988 (Cwth) (Privacy Act).
10.2 The parties must comply with the Privacy Act, including, without limitation, the National Privacy Principles contained in the Privacy Act.
10.3 The Licensee must give all Users written notice of the fact that:
(a) personal Information of the User will be collected by SES and how to contact SES;
(b) the User is able to gain access to Personal Information collected by SES;
(c) SES collects Personal Information of the User for the purposes of registering the User for access to SEMS and otherwise to manage the Licence and the business relationship with the Licensee;
(d) SES may disclose Personal Information collected about Users to any transferee of this agreement or of SES’s business or an auditor engaged to provide Audit Services; and
(e) if SES does not collect the Personal Information of the User, SES will be unable to register the User for access to SEMS.
11 ASSIGNMENT AND NOVATION
11.1 SES may assign or novate this agreement by giving the Licensee written notice. The Licensee must not assign or novate this agreement without SES’s prior written consent.
12 GOVERNING LAW
12.1 This agreement is created, and shall be performed, interpreted and enforced in accordance with the laws applicable in New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that place.
13 NOTICES
13.1 All notices must be in writing and may be given by posting on the Website or in SEMS email, fax or post, or by delivering it or having it delivered. Notices take effect on the date that is 2 business days after the date they are sent.
14 GST
14.1 All amounts stated in this agreement are expressed to be exclusive of any applicable taxes.
14.2 If GST (being any goods and services tax or tax of a like nature) is payable in relation to a supply of goods and services by SES under this agreement to the Licensee, then provided SES provides a tax invoice in a form that complies with the relevant legislation by which the GST is imposed for an amount equal to the contracted sums payable (exclusive of GST) plus an amount equal to the GST on those sums, then the Licensee will pay the amount invoiced in satisfaction of its obligations in this agreement. This condition applies to each payment due according to this agreement.
15 INTERPRETATION
15.1 Reference in this agreement to:
(a) a party includes that party's successors and permitted assigns;
(b) a person includes a corporation, a body corporate and an unincorporated association and vice versa;
(c) any gender includes a reference to all other genders;
(d) to singular includes the plural and vice versa.
15.2 Every phrase, sentence, paragraph and clause in this agreement is severable the one from the other.
15.3 This document constitutes the entire agreement between the parties and no discussion or correspondence shall be binding unless incorporated in this document. No variation of this agreement shall be valid or binding unless it is in writing and signed by both parties.
15.4 Any indemnity given by a party under this agreement:-
(a) is not the exclusive remedy of the party holding the benefit of the indemnity, which party may at its option, in addition or in the alternative, pursue other remedies under this agreement, at common law, in equity or under statute;
(b) is a continuing indemnity;
(c) will not be affected by the termination, renewal or extension of this agreement or any indulgence, waiver or other concession given by a party; and
(d) includes legal costs and disbursements on a full indemnity basis.
15.5 SES will not be deemed to have waived any right or remedy under this agreement unless SES have done so by written notice to the Licensee.