AMCAS Subscriber Licence Terms and Conditions
1. Services
When you complete the respective webform located at www.cor-safe.com/amcas, you become a Subscriber to the LSS AMCAS audit program. As a subscriber you are required to comply with all the obligations under this Licence Agreement. LSS AMCAS will provide the following Services:
(a) grants the Subscriber a limited, non-exclusive, non-transferable Licence to use the Audit Tool on the terms of this Licence Agreement;
(b) will provide access to the list of AMCAS Auditors;
(c) will provide assistance to the Subscriber in tracking its Audit process, including providing reminders for Performance Audits, Corrective Actions and Triggered Audits; and
(d) will provide a certificate of satisfactory completion once you have achieved a 100% audit score in accordance with advice received from the relevant Auditor.
2. Subscriber obligations
The Subscriber:
(a) must acknowledge that they accept these terms and conditions on the LSS AMCAS website webform;
(b) acknowledges LSS' title to and copyright in the AMCAS Audit Tool, and agrees to use the Audit Tool strictly in accordance with the terms of this Licence Agreement;
(c) acknowledges that the AMCAS Audit Tool comprises valuable intellectual property of LSS and undertakes to keep the Audit Tool confidential and not disclose its contents to any third party;
(d) may only use or copy the Audit Tool for the purpose of an LSS AMCAS Audit;
(e) will separately engage an Auditor in accordance with the Auditor's agreed terms and conditions for the purposes of conducting any Audit required to be undertaken under this Licence Agreement;
(f) must undertake:
(i) an Audit at least every two years;
(ii) in all cases, mitigate and implement Corrective Actions as and when required in accordance with the AMCAS Audit Framework, Refer 3 (a) below.
(g) must not:
(h) engage the same Auditor more than twice in succession at any one Facility;
(ii) engage an Auditor that has provided consultancy services to the Subscriber within the prior two years;
(iii) allow the Auditor to select or modify the subscribers’ own transport activity/role/function; and
(iv) seek to engage an Auditor that has undertaken an Audit for the Subscriber, to assist or advise the Subscriber in relation to Corrective Actions arising from that Audit;
(i) must pay the agreed fees to any Auditor in accordance with the Auditor's agreed terms and conditions, and must not engage in any conduct which may constitute an improper attempt to influence the outcome of an Audit;
(j) must log into the LSS AMCAS Audit Tool and self-select its own transport activity/role/function prior to commencing an Audit.
(k) must conduct appropriate site induction processes for Auditors, and take all HSE measures as required by Law; and
(l) must maintain at all times during the Term, such occupier's and general liability insurances as a prudent business in the situation of the Subscriber would hold.
3. Corrective Actions
(a) If an Auditor identifies Corrective Actions that must be taken by the Subscriber, the Subscriber must complete those Corrective Actions within the time specified by the Auditor, or if no time is specified, within 28 days of the Auditor's notification to the Subscriber.
(b) Until the Subscriber has completed the Corrective Actions to the Auditor's satisfaction LSS is not obliged to issue a certificate under clause 1(d).
(c) If the Subscriber has not completed the Corrective Actions within 90 days of the Audit date, the Subscriber must recommence the Audit process from the beginning in order to obtain a certificate from LSS under clause 1(d).
4. Term
This Licence Agreement comes into effect on the Commencement Date of the Audit, are effective for the duration of the audit undertaken, unless terminated earlier in accordance with clause 5.
5. Termination
If the Subscriber commits a breach of this Licence Agreement and does not remedy such breach within seven days following the day on which LSS gives to the Subscriber written notice requiring such remedy, then LSS may terminate this Licence Agreement and revoke the Licence immediately by notice in writing to the Subscriber. This clause does not limit any other rights or remedies LSS may have.
6. Liability and indemnity
(a) To the fullest extent permitted by law and subject to clause 6(c), any and all representations, terms, conditions or warranties implied by Law, statute or custom, including but not limited to any implied warranty of merchantability or fitness for a particular purpose, and which are not expressly included in writing in these Terms and Conditions are wholly excluded. No other warranties, either express or implied by law, are made with respect to this Licence Agreement, the Services or AMCAS Audit Tool or any Audit or Auditor.
(b) To the fullest extent permitted by law and subject to clause 6(c), LSS does not make any promise, warranty, guarantee or representation that any or all of the Services or Audit Tool provide for or will result in any commercial, legal or regulatory outcomes, including without limitation that they are in conformance or compliance with any legal or statutory obligations or whether adopting, using, following or addressing the matters raised in the Audit Tool or the use of the Services or Audit Tool by any Subscriber will enable the Subscriber to successful defend any investigation, claim, enforcement action or prosecution by a regulatory authority or a claim bought by any third party and disclaims and excludes any such liability.
(c) Where any Subscriber is entitled to a statutory guarantee under the Australian Consumer Law which cannot be excluded or limited and LSS fails to comply with any such statutory guarantee, LSS’ liability for any and all loss or damage arising from any such failure to comply is limited to, at LSS’ option:
(i) In the case of the supply of any services - to supplying the services again or payment of the cost of having the services supplied again; and
(ii) In the case of the supply of any goods - to the replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired.
(d) Except to the extent provided for in clause 6(c):
(i) If this Licence Agreement is a ‘small business contract’ under Section 2-3 of the Australian Consumer Law, the liability of the parties to each other in respect of any claims, liabilities, expenses, losses, damages and costs (including legal costs) incurred by one of them arising from or in connection with this Licence Agreement, the AMCAS Audit Tool, any warranties or guarantees imposed by statute or common law, any Auditor, any Audit and any breach of duty (including negligence), contract (including this Licence Agreement), statute or law by the other is limited to the amount of the Licence Fee payable for the calendar year in which any such breach occurred; and
(ii) In all other circumstances, the Subscriber irrevocably and unconditionally waives, releases and indemnifies and agrees to keep indemnified upon demand LSS and its officers, employees, agents and contractors at any level against all claims, liabilities, expenses, losses, damages and costs (including legal costs) incurred by the Subscriber arising from or in connection with this Licence Agreement, the AMCAS Audit Tool, any warranties or guarantees imposed by statute or common law, any Auditor, any Audit and any breach of duty (including negligence), contract (including this Licence Agreement), statute or law by LSS.
(e) The Subscriber;
(i) acknowledges that the inclusion of any AMCAS Auditor on LSS AMCAS List of Auditors is any form of endorsement or recommendation of any Auditor or representation that any Auditors or particular Auditor has any particular quality, skill or experience or is suitable for the performance of any Audits or particular Audit. LSS is not responsible for the expertise, experience or competency of the Auditors, and releases LSS from any liability in connection with the standard to which any Audit is conducted, and any loss or damage arising;
(ii) acknowledges that it must rely on its own investigations and consideration as to the matters set out in clause 6(e)(1);
(iii) irrevocably and unconditionally waives, releases and indemnifies and agrees to keep indemnified upon demand LSS and its officers, employees, agents and contractors at any level against all claims, liabilities, expenses, losses, damages and costs (including legal costs) incurred by the Subscriber arising from or in connection with:
A. any matters set out in clauses 6(e)(i) and (ii);
B. any failure of the Subscriber to provide a safe system of work and ensure that the Subscriber, the Subscriber’s officers, employees, agents and contractors at any level comply with all applicable laws, including those related to work health and safety.
7. Confidentiality
The Subscriber:
(a) must keep this Licence Agreement and the AMCAS Audit Tool confidential, and not disclose any information from or about this Licence Agreement and the Audit Tool to any third party unless and except to the extent that disclosure:
(i) is permitted by this Licence Agreement;
(ii) is required by law;
(iii) is given with the written consent of each party to whom the information is confidential;
(iv) relates to information that is otherwise lawfully publicly available without breach of confidence; or
(v) is to advisers and then only to the extent that each has a need to know, and is aware and agrees in writing that the information must be kept confidential; and
(b) must only use information from the AMCAS Audit Tool for the purpose stated in this Licence Agreement.
8. Force Majeure
(a) This clause does not apply to any obligation to make a payment.
(b) If a party by reason of Force Majeure is unable to perform or carry out any obligation under this Licence Agreement, then that obligation is suspended for so long and to the extent that it is affected by the Force Majeure. In that case, the affected party must give notice to the other party with reasonable particulars including, so far as it is known, the probable extent to which the party will be unable to perform or carry out or will be delayed in performing or carrying out its obligations.
(c) A party is not liable for any failure or delay in the performance of any of its obligations under this Licence Agreement to the extent that the failure or delay is attributable to Force Majeure, regardless of the length of time for which the Force Majeure continues.
(d) A party to this Licence Agreement may still suffer damage which that party may seek to recover from a third party, due to a failure or delay in the performance of an obligation under this Licence Agreement by a party to this Licence Agreement, attributable to circumstances amounting to Force Majeure which involve the third party.
9. PERSONAL INFORMATION
(a) The Subscriber acknowledges that, in performing the Services, information (which may include personal information) may be collected, transferred, stored, maintained and used by LSS (or its suppliers and subcontractors including any third-party cloud hosting service provider) for the purposes of this Licence Agreement, including in one of LSS’s facilities (or that of a subcontractor) outside of Australia and/or accessed by LSS’s personnel (or that of a subcontractor) outside of Australia and New Zealand.
(b) The Subscriber acknowledges that LSS may disclose information (which may include personal information) to third party providers of services to the logistics and transport industry with whom LSS may have a commercial relationship.
(c) The Subscriber will obtain all necessary consents (including from the subjects of the personal information) for the collection, transferring, storage, maintenance and use by LSS (or a subcontractor) of any information (including personal information) as set out in clauses 9(a) and (b).
10. Dispute Resolution
(a) The parties agree to use reasonable commercial efforts in good faith to resolve by negotiation any dispute that arises between them under or arising from this Licence Agreement. Neither party can commence legal proceedings in relation to any such dispute until it has complied with the balance of this clause 9, except if it is necessary to seek an urgent interlocutory relief.
(b) If a dispute arises (including a breach or an alleged breach) under this Licence Agreement which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at the operational level, either party may give notice of the dispute to the other. The parties will then endeavor in good faith to resolve the dispute.
(c) If the parties fail to reach a resolution in accordance with clause 9(b) within five business days after notice of the dispute is provided (or such other time frame agreed between the parties), the parties must refer the dispute to mediation. The parties must participate in the mediation in good faith. The mediator will be selected by LSS. The costs of the mediator will be borne equally by the parties.
(d) If the dispute is not resolved within thirty (30) business days of being referred to mediation, then either party may commence legal proceedings against the other.
(e) Nothing in this clause limits LSS' rights of termination under clause 5.
11. Governing Law
This Licence Agreement is governed by and is to be interpreted according to the laws in force in Queensland. The parties submit to the exclusive jurisdiction of the courts of Queensland in relation to any dispute under or arising from this Licence Agreement.
12. Definitions
In this Licence Agreement the following terms have the meanings ascribed to them unless the context requires otherwise:
(a) Application means the application made by the Subscriber for a Licence;
(b) Audit means an audit undertaken by an Auditor in accordance with the AMCAS Audit Tool;
(c) Audit Framework means the AMCAS Audit Framework which provides guidance to AMCAS participants on the principles, processes and audit methodology that comprise the AMCAS audit system, as amended from time-to-time;
(d) AMCAS Audit Tool means LSS' confidential, proprietary and copyright documented system for the conduct of Audits, including any software, tool or other product forming part of the system;
(e) Auditor means an approved auditor on LSS' AMCAS list of auditors;
(f) Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth);
(g) Commencement Date means the date on which each of:
(i) submission of an Application;
(ii) payment of the Licence Fee; and
(iii) completion of an Entry Audit,
have been completed to LSS' satisfaction;
(h) Corrective Action has the same meaning as in the AMCAS Audit Framework;
(i) Facility means a site on which the Subscriber conducts activities that are or may be subject to the HVNL;
(j) Force Majeure means any event or circumstance not within the control of the party claiming Force Majeure, and which, by exercise of reasonable diligence, that party was and is not reasonably able to prevent or overcome, including:
(i) an act of God;
(ii) a transport interruption;
(iii) a strike, lock out or other industrial disturbance;
(iv) an act of an enemy or terrorist, including war, blockade or insurrection;
(v) an act of any third party, including any accidental or malicious act, or vandalism;
(vi) a riot or civil disturbance;
(vii) an authority's delay in giving any necessary approval; or
(viii) unavailability of the AMCAS Audit Tool due to any power failure or interruption, restriction of access to any premises, data breach or loss or any form of malicious cyber incursion or attack.
(k) HVNL means Heavy Vehicle National Law (Queensland), or, where that law has been enacted into the law of any other Sate or Territory, the law as so enacted;
(l) Law means:
(i) principles of law or equity established by decisions of courts;
(ii) as applicable, statutes, regulations or by-laws of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia and those of New Zealand; and
(iii) as applicable, requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia that have the force of law; and those of New Zealand.
(m) Licence means the licence granted by clause 1(a);
(n) Licence Agreement means this document, including the information contained in the Application;
(o) LSS means Logistics Safety Solutions Pty Limited a company incorporated in Australia, (ABN 25 134 417 379) which is also registered on the New Zealand overseas company register under Part XVIII of the Companies Act 1993 to carry on business in New Zealand (NZBN 9429047269040), or its successors or assigns;
(p) Performance Audit has the same meaning as in the AMCAS Audit Framework;
(q) Services means the services to be provided by LSS described in clause 1;
(r) Subscriber means the person submitting any Application;
(s) Term means the period described in clause 4;
(t) Triggered Audit means an Audit initiated by the LSS or the Subscriber in accordance with the AMCAS Audit Framework.