ClearCalcs Terms of Use

Welcome to the solution for creating fast and intuitive engineering calculations provided by ClearCalcs Pty Ltd (ACN 614 037 400) and its associate entities (together “ClearCalcs”, “we”,“our”, or “us”). ClearCalcs provides a service where you can quickly design, access and analyse engineering calculations through our Platform. These Terms of Use are intended to explain our obligations as a service provider and your obligations as a User of our Platform.

These Terms of Use are binding on any use of our Platform on any Device and apply to the user of the Platform (“User” or “you”) from the time that we provide you with access to any of the Platform. These Terms of Use will govern any upgrades provided by us that replace and/or supplement the original Platform, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

You accept that your use (whether as a registered or unregistered User) or access of the Platform on any Device includes your unreserved acceptance of these Terms of Use and Our Privacy Policy.

By using (whether as a registered or unregistered User) or accessing our Platform, you acknowledge that you have read and understood and agree to be bound by these Terms of Use in their entirety in addition to any other applicable laws and regulations and that you have the authority to act on behalf of any person or entity for whom you are using the Platform and you agree to these Terms of Use personally and on behalf that person or entity.

We reserve the right to change, modify, add or remove portions of these Terms of Use at any time without notice to you. If we do, it will be effective upon posting it on the Platform or Website. By continuing to use or access the Platform following any changes to these Terms of Use, you signify that you have read, understood and agree to be bound by the updated Terms of Use.

If you do not agree to any of these Terms of Use you must not use the Platform in any manner. If you have any particular questions, please contact us by email via help@clearcalcs.com

1 PRIVACY POLICY

Your privacy is important to us. Please refer to our Privacy Policy for further information about how we collect, use, store, process and disclose your personal information.

2 ACCOUNTS

2.1 ACCOUNT REGISTRATION

In order to use the Platform, you will be required to sign up for an account (Account). When you register to the Platform for the first time, you will create an Account and become (either individually or on behalf of your employer or entity for whom you created the Account) an Account organisation (Organisation). The first Account created under an Organisation will be automatically assigned as that Organisation's administrator (Admin).

When you register for an Account, you must provide true, accurate and complete information as requested and keep this information up to date after registration.

You agree that you're solely responsible for:

1. maintaining the confidentiality and security of your Account information and your password; and
2. any activities and those of any third party that occur through your Account, whether those activities have been authorised by you or not.

You also agree to let us know if you detect any unusual activity on your Account as soon as you become aware of it.

We won't be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Account information or your password.

2.2 ACCOUNT ADMIN

The Admin(s) are, severally and jointly, deemed as the authorised representatives of the Organisation, and any decision or action made by any Admin is deemed as a decision or action of the Organisation and all of the Accounts under that Organisation. An Admin may assign or add other Accounts under the Organisation as Admins.

Admins possess important privileges and controls over the use of the Platform and the Organisation's Accounts including but not limited to:

1. control over your (and other Users) use of your Account
2. purchase, upgrade or downgrade Subscription Plans; and
3. create, monitor or modify User's actions and permissions.

2.3 OTHER (NON-ADMIN) USERS

The features and functionalities available to the Accounts of non-admin Users are determined by the Subscription Plan selected by the Admin(s) governing the Account and the privileges of each User are also assigned and determined by those Admin(s).

2.4 FREE TOOL

We may from time to time allow a Free Tool to be available on our Website without the requirement to sign up for an Account. Any Free Tool made available will be at our sole discretion and you accept that these Terms of Use will continue to apply to your use of the Free Tool to the maximum possible extent.

3 ELIGIBILITY

As a condition of your using and accessing the Platform, you represent and warrant that you:

1. will only maintain one Account at any given time, and if your Account is ever suspended or terminated for any reason, you will not create another account;
2. are not currently prohibited or otherwise restricted from using or accessing the Platform;
3. are not a competitor of us, and are not using or accessing the Platform for the purposes of competing with our business;
4. will not breach any applicable Laws (including any applicable privacy laws);
5. will not infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality; and
6. have full authority to enter into any agreement with us in connection with using or accessing the Platform, including but not limited to, agreeing to be bound by these Terms of Use, and that doing so does not violate any other agreement which you have with any other party.

4 USE OF THE PLATFORM

4.1

You must not:

1. Use the Platform for any purpose or in any manner other than as set out in these Terms of Use;
2. Use the Platform in any way that could damage our reputation or the goodwill or other rights associated with the Platform;
3. Permit any third party to use the Platform other than as set out in these Terms of Use, unless written approval has first been provided by us;
4. except as expressly permitted by this Agreement:
1. reproduce, make error corrections to or modify or adapt the Platform or create any derivative works based upon the Platform;
2. except as permitted by Laws, de-compile, disassemble or otherwise reverse engineer the Platform or directly or indirectly allow, cause or permit any third party to do so; or
3. modify, remove or whitewash any copyright or proprietary notices on the Platform;
5. access, store, distribute or transmit any viruses, or any material during its use of the Platform that:
1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory;
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. causes damage or injury to any person or property; or
5. violates any Laws.

4.2

You must only use the Platform for your own lawful personal or business purposes, in accordance with these Terms of Use and any other additional terms, conditions, policies, rules, disclaimers and notices displayed elsewhere on the Platform and as may be changed or sent to you from time to time by us. You may use the Platform in order to provide services to others but if you do so you must ensure that all persons to whom goods and/or services are provided, comply with and accept all Terms of Use that apply to you.

4.3

You must ensure you protect the Platform at all times from unauthorised access, use or damage and you must ensure that all Account usernames and passwords required to access the Platform are kept secure and confidential. You must immediately notify us of any unauthorised use of your Account or any other breach of security and you must take all other actions that we reasonably deem necessary (including resetting your password) to maintain or enhance the security of our computing systems, networks and your access to the Platform.

4.4

You are responsible for providing your own Device and other access facilities necessary for utilising the Platform. You must ensure that any Device on which the Platform is used is in good, up to date working order and operating condition. We accept no responsibility or liability for any deficiency relating to your Device and other access facilities. Additionally, you acknowledge and agree that you will be solely liable for any fees or other charges incurred by you in connection with using or accessing the Platform, including but not limited to software, hardware, equipment and internet usage charges.

4.5

You agree to only use the Platform in accordance with our ‘fair usage’ policy, under which you must not use the Platform in a way that a reasonable person would consider to be unreasonable. This includes (without limitation) opening multiple Accounts or sharing one Account between multiple people in an attempt to avoid paying additional Fees. We reserve the right to determine whether the fair usage policy has been breached and if so, terminate your access to your Account or any or all of the Platform.

5 THIRD PARTY TERMS

1. You acknowledge and agree that third party applications may apply to any part of the Platform and your use of such third party applications is subject to their terms and conditions (Third Party Terms).
2. You acknowledge and confirm that you have read and accepted all Third Party Terms and agree that if you do not agree to any Third Party Terms, you must immediately stop using the Platform in any manner.
3. If your Subscription Plan includes access materials that have been provided or licensed to ClearCalcs by a third party whose terms have been included as a Schedule to these Terms of Use, you acknowledge and agree that those Third Party Terms form part of our Terms of Use and to comply with all such terms. You further agree to procure that all Users have read, understood, agree with such Third Party Terms prior to them accessing such materials, and to procure that they comply with such terms.
4. Schedules of available Third Party Terms are published here for review.

6 GENERAL DISCLAIMER

1. You acknowledge that whilst we adopt strict precautions in checking the quality of the Platform and each Platform Calculation, we cannot guarantee that:
1. the Platform or Platform Calculations are error free, or will cover every design scenario, or combination of design requirements; and
2. all Platform Calculations used by you in connection with your use of the Platform is suitable for your particular circumstances.
2. You acknowledge that when using the Platform, it is your responsibility to comply with all applicable Laws relevant to your business, including industrial relations laws and privacy laws.
3. You acknowledge that you are required to check and verify anything produced using the Platform with an appropriate level of care. As such, you warrant that:
1. any person you authorise to use (or supervise the use of) the Platform is adequately qualified; and
2. any Platform Output is verified, checked, and validated using independent means by a person appropriately qualified to check such Platform Output.

7 FEES

7.1 FEES

1. Certain aspects of the Platform may be provided for a fee or other charge, either under a Subscription Plan, or otherwise (Fees). If you elect to use paid aspects of the Platform, you agree to the pricing and payment listed on the Platform which we may update from time to time. We may add new services for additional fees and charges or amend fees and charges for existing services at any time in our sole discretion. Any price changes or changes to your subscription plans will apply no earlier than 30 days following notice to you.
2. You acknowledge that the Fees may be set in accordance with a Usage Limit. If required, we will monitor your Usage Limit and the number of Users to whom you have granted access to the Platform.

7.2 SUBSCRIPTIONS

1. If you elect to subscribe for a Subscription Plan you agree to pay us the corresponding Subscription Fee in accordance with these Terms of Use.
2. Your Subscription Plan will automatically be renewed at the end of each Subscription Period unless you inform us you wish to cancel your Subscription Plan before it renews.
3. At the end of the Subscription Period, if not cancelled, the Subscription Fee will be charged to the payment method last specified by you. We provide the option of changing these payment details if needed.

7.3 TRIAL

1. If you are currently on a Trial, your access to the Platform will automatically revert to the Basic Access upon expiry of the Trial.
2. If you wish to continue using the full functionality of the Platform after the expiry of the Trial, you will be required to subscribe to a Subscription Plan.

7.4 CANCELLED OR LAPSED SUBSCRIPTIONS

1. If you cancel your Subscription Plan, or your Trial lapses and is not renewed, your Account will revert to the Basic Access.
2. If your Subscription Plan has lapsed, or Trial not renewed, we will offer a service for you to retain part of the Data. However, if we determine (in our reasonable opinion) that your Account has been inactive, or you have not accessed your Data for a significant period of time, we may remove your Account and delete the Data
3. Should we exercise our rights to remove your Account and delete the Data, we will notify you at least 30 days in advance and provide you with the opportunity to download your Data

7.5 FAILURE TO PAY

If Fees are not paid as and when they are due, we may revoke your Account and require payment for you to continue accessing the Platform.

7.6 PAYMENT METHODS

We may use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these Terms of Use, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

7.7 TAX

The Fees are exclusive of VAT, GST and any other similar duties, levies or taxes, which (if applicable) shall be added to the Fees by ClearCalcs at the prevailing rate.

8 REFUNDS

Except as otherwise set out in a Promotional Offer, on our Platform or in these Terms of Use, we don't offer refunds for any of our services (including Subscription Plans) and any refunds we issue will be solely at our discretion. Please let us know if you have any issues that you think should entitle you to a refund and we'll consider your situation.

9 INTELLECTUAL PROPERTY

9.1 USER MATERIAL

By uploading any Data to the Platform (User Material), you grant us (and our agents or service providers) a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in that User Material in order for us to use to the extent reasonably necessary to provide and maintain the Platform for you. You retain ownership of your User Material and are entirely responsible for all such User Material, including any third-party Intellectual Property Rights incorporated therein.

9.2 OUR MATERIAL

Unless we indicate otherwise, all materials used in the Platform (including text, graphics, logos, icons, sound recordings and software) are subject to Intellectual Property Rights that are owned or licensed by us. You can only access and use these materials for the sole purpose of enabling you to use the Platform in accordance with your Subscription Plan, except to the extent permitted by law or where you have received prior written approval from us.

9.3 NEW MATERIAL LICENCE

1. Intellectual Property Rights in New Material is immediately assigned to and vest in us as those rights are created.
2. We grant to you a non-exclusive, non-transferable, non-sublicensable licence to use the New Material to the extent such use is reasonably required for you to enjoy the benefit of the Platform and to manage and create successful Platform Calculations.

10 CONFIDENTIALITY

10.1

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

1. each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms of Use. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms of Use;
2. each party's obligations under this clause will survive termination of these Terms of Use;
3. you shall take all reasonable steps to ensure that your employees, agents, subcontractors or related entities, do not make public or disclose our Confidential Information. If you become aware that any of your employees, agents, sub-contractors or related entities passed on any Confidential Information to any other party, then you shall notify us in writing immediately.

10.2

The provisions of this clause shall not apply to any information which:

1. is or becomes public knowledge other than by a breach of this clause;
2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
4. is independently developed without access to the Confidential Information.

11 SECURITY

We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information (including User Material), your computer systems, mobile phones or other electronic devices arising in connection with use of the Platform. You should take your own precautions to ensure that the process which you employ for accessing the Platform does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

12 LIABILITY

12.1 ACKNOWLEDGMENT

To the maximum extent permitted by applicable law:

1. we exclude all warranties and representations as to the correctness, accuracy, adequacy, completeness, currency, reliability, timeliness or usefulness of any information or other content posted on the Platform;
2. we do not guarantee that the Platform, or the server supporting the Platform, are free from defects, viruses or other harmful components, or will be uninterrupted or error free;
3. we accept no liability for the loss of Data where such loss is wholly or partly caused by factors beyond our reasonable control including, but not limited to, failure or fault in the hosted environment of the Platform, defective network or internet connections, defective equipment utilised by you or incorrect operation by you of your own Device or other access facilities;
4. we shall not be responsible for any disclosure, use, modification or deletion of your Data resulting from any access by third party application providers;
5. neither us, nor our directors, officers, employees, contractors or agents, will be liable for any direct, indirect, consequential or other loss or damage to any person or entity, however caused (whether by negligence or otherwise), arising in connection with your use of, or inability to use, the Services, or reliance upon any of the content or other information posted on the Services; and
6. any liability that we may have to a User in relation to the Platform which cannot be excluded shall be limited to, at our discretion:
1. either the supplying of the Services again; or
2. the payment of the cost of having the Services supplied again.
7. we shall not be liable for any injury loss expense or damages of any kind whatsoever or however arising whether directly, indirectly, consequently or contingently to any person or property and without limiting the generality of the foregoing, we shall not be liable for any losses, expenses or damages caused by delays or any other reasons or additional expenses incurred by a User including losses of prospective profits or actual profits incurred by a User.

13 INDEMNITY

You agree to indemnify ClearCalcs and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with:

1. your or your representatives use of the Platform;
2. your or your representatives breach of these Terms of Use;
3. User Material or Data uploaded to the Platform by you; or
4. our refusal to provide any person access to your Account or Data in accordance with these Terms of Use.

14 CANCELLATION

14.1 CANCELLATION BY YOU

The Admin(s) are responsible for the cancellation of your Account. the Admin(s) can cancel your Account at any time by using the functionality provided in the Platform and subject to the Terms of Use.

14.2 CANCELLATION BY US

To the extent permitted by law, we reserve the right to terminate your access to your Account or any or all of the Platform if:

1. You have no current paid Subscription Plans;
2. You have failed to pay any of the Fees as and when they fall due;
3. You have failed to pay any of the Fees as and when they fall due; (c) You (or any Account or User within your Organisation) are in material breach of these Terms of Use; or
4. You become subject to bankruptcy or insolvency proceedings, or in our reasonable opinion are likely to be the subject of bankruptcy or insolvency proceedings or of becoming bankrupt or insolvent.

14.3 SURVIVAL

Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.

15 NOTICES

Any notice given under these Terms of Use by either party to the other must be in writing by email and will be deemed to have been given on transmission.

Notices must be sent to help@clearcalcs.com or to any other email address notified by email to you by us.

Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Platform.

16 GENERAL

16.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

16.2 WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

16.3 SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

16.4 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

16.5 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

16.6 COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

16.7 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

16.8 INTERPRETATION

1. (singular and plural) words in the singular includes the plural (and vice versa);
2. (gender) words indicating a gender includes the corresponding words of any other gender;
3. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
4. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
5. (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
6. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
7. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
8. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
9. (includes) the word “includes” and similar words in any form is not a word of limitation; and
10. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

17 DEFINITIONS