BUILDTOOLS – SOFTWARE AS A SERVICE AGREEMENT
Buildtools Pty Ltd (ACN 105 572 576) trading as Buildtools (referred to as Buildtools, we, our or us) owns the cloud-based software, including all instructions in hard copy and electronic form and any update, modification or release of any part of that software (Software) which is accessible at www.buildtools.com.au (Website).
(a) set out the terms and conditions upon which we agree to grant, sell, or allow the use of, the Software as a service (SaaS Services), by you, the person or entity seeking to use or purchase the SaaS Services from us (you or your); and
(b) provide any other services as set out in these Terms or Commercial Order, including Data Hosting Services (defined below) (together with the SaaS Services, the Services),
as particularised in a Commercial Order.
1.1. If you are an entity or organisation paying for the Services (Paying User), your Services are set out in the tax invoice we provide to you (Invoice) and will be itemised in your Commercial Order. These Terms are binding on you from the date you sign a Commercial Order until your Account (defined below) is terminated in accordance with these Terms.
1.2. If you are user of the Services, but you are not a Paying User (Non-Paying User), you agree to comply with these Terms, and these Terms will be binding on you whenever you use any part of our Services.
1.3. These Terms form a binding legal agreement between you and Buildtools, its directors, officers, employees, contractors, successors and assignees.
1.4. Please read these Terms carefully and contact Buildtools if you have any questions using the contact details set out at the end of these Terms.
1.5. By accepting these Terms and/or accessing and/or using the Services, you:
(a) warrant to us that you have reviewed these Terms (and all documents referred to in, or attached to, these Terms);
(b) warrant to us that you have the legal capacity to enter into a legally binding agreement;
(c) warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to these Terms on behalf of the entity for whom you use the Services;
(d) warrant to us that you have all capabilities (including hardware, software and services) which are necessary, or become necessary, to access and use the Services; and
(e) agree to use the Services in accordance with these Terms.
1.6. We reserve the right to make changes to these Terms at any time, effective upon the posting of modified Terms on the Website. We will make every effort to communicate these changes to you via email or through the Software. It is your obligation to ensure that you have read, understood and agree to the most recent Terms when they are posted on our Website.
- PRIORITY OF DOCUMENTS
In the event of an inconstancy, ambiguity or discrepancy in or between these Terms and the Commercial Order, the Commercial Order will apply to the extent of such inconsistency.
- AUTHORISED USERS
3.1. The SaaS Services shall only be used by the number of users listed on the relevant Commercial Order (Authorised Users). Each Authorised User must be either:
(a) a subsidiary controlled by the Paying User (whether wholly or in part);
(b) an employee of a Paying User; or
(c) an authorised agent or contractor (including consultant) acting in the ordinary course of business and directly working on projects initiated, directed or managed by the Paying User,
or as otherwise agreed by Buildtools in writing.
3.2. You must ensure that each Authorised User, uses or accesses the SaaS Services in accordance with these Terms.
- COLLECTION NOTICE
4.2. We may disclose that information to third party service providers who help us deliver our Services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide the Services to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia and you hereby consent to such disclosure.
4.4. Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.
- SAAS LICENCE
5.1. The Software and SaaS Services are the sole and exclusive property of Buildtools.
5.2. Purchasing, using or subscribing to the SaaS Services will grant you a revocable, non-exclusive, non-transferable and non-sublicensable licence to access and use the Software (each a Licence) corresponding with the number of Authorised Users in accordance with, and as set out in, your Commercial Order.
5.3. Your Licence permits you to make the SaaS Services available to Authorised Users in accordance with the level of your Subscription (defined below).
5.4. Your Licence also provides you with access to a Training Manual in electronic format and training videos viewable online on the Website.
5.5. Buildtools may, upon request by a Paying User, customise modify and/or enhance the SaaS Services to meet the Paying User’s particular needs. It is at our sole discretion whether or not we customise the SaaS Services for you. If we agree to customise the SaaS Services for you, a separate written agreement will be entered into between Buildtools and you, outlining any costs associated and the terms and conditions for doing so. We will not be obliged to perform any customisation services until we have entered into a separate agreement with you, as contemplated by this clause.
- YOUR RESPONSIBILITIES AND OBLIGATIONS
6.1. You must, at your expense:
(a) provide us with all reasonable information, assistance and cooperation in order for us to supply the Services in an efficient and timely manner;
(b) provide us and our personnel with reasonable access to your computing environment, including all systems, information technology and telecommunications services (Computing Environment), if necessary for us to supply the Services;
(c) ensure all information provided to us in accordance with these Terms is and remain current, complete and correct and the email address(es) you provide is/are valid and regularly checked; and
(d) make any changes to your Computing Environment, such as system upgrades, that may be required to support the delivery and operation of any Services.
7.1. This clause applies only to Paying Users.
7.2. Unless otherwise agreed in a Commercial Order, we offer the following subscription options for Paying Users:
(a) a “User Licence Subscription”;
(b) a “Project Licence Subscription”; and
(c) a “Corporate Licence Subscription”,
and any other subscription options, as set out on our Website, from time to time (Subscriptions).
7.3. The features, functionality, access rights and Subscription Fees relevant to each Subscription option is set out on our Website. We reserve the right to update or amend our Subscriptions options, or add or remove any Subscription options, at our discretion.
7.4. Your Commercial Order will set out your applicable:
(b) Subscription Fee; and
(c) Subscription Period.
7.5. You agree to pay the applicable Subscription Fee in the amount, at the times and in the manner set out in your Commercial Order and Invoice.
7.6. Notwithstanding your Subscription type, you will be required to pay the minimum Subscription Fee in the amount and currency specified in the Commercial Order and Invoice.
7.7. The method of calculating your Subscription Fee will be as set out in your Commercial Order and our Website, and:
(a) where you have purchased a User Licence Subscription, your Subscription Fee will be determined by, among other things, the number of Authorised Users that you have nominated to have full access rights to use the Saas Services;
(b) where you have purchased a Project Licence Subscription, your Subscription Fee will be determined by, among other things, a percentage or formula based on your Projected Authorised Project Value; and
(c) where you have purchased a Corporate Licence Subscription, your Subscription Fee will be determined by, among other things, a percentage or formula based on your Projected Total Project Value.
7.8. You acknowledge and agree:
(a) at the expiry of each financial year during your Subscription Period; and/or
(b) if these Terms are terminated prior to the expiry of your Subscription, howsoever arising,
we may request, in our sole discretion, that you provide us with an independent third party report that verifies:
(c) where you have purchased a Project Licence Subscription, the actual Turnover generated from the Authorised Projects during the Subscription Period, as compared with the Projected Authorised Project Value; or
(d) where you have purchased a Corporate Licence Subscription, the actual Turnover generated from all projects undertaken by you or your organisation during the Subscription Period, as compared with the Projected Total Project Value,
(as applicable, Actual Project Value) such report to be provided within 2 weeks of the date of our request, and at your cost (unless otherwise agreed by Buildtools).
7.9. You acknowledge and agree:
(a) in addition to the Subscription Fee, we may require that you pay us an additional fee, based on the percentage set out in the Commercial Order, where the Actual Project Value is 5% greater than the Projected Authorised Project Value or Projected Total Project Value, as applicable (Additional Subscription Fee); and
(b) to pay the Additional Subscription Fee in the manner, currency and time period as specified by us in the Invoice.
7.10. Where the Actual Project Value is less than the Projected Authorised Project Value or Projected Total Project Value, as applicable, then, without limiting any of our rights or entitlements, we may require that you pay us a Subscription Fee based on your use of the Services during the Subscription Period (on a pro-rata basis).
7.11. You acknowledge and agree that we may engage an independent third party, procure an independent third party report, or use an independent third party service provider, to verify your assessment of the Actual Project Value for the relevant financial year. For the purposes of this clause 7, and to the extent permitted by law, the determination of the Actual Project Value by an independent third party referred to in this clause will be final and binding.
8.1. This clause applies only to Paying Users.
8.2. If you are a Paying User, you agree to pay us:
(a) the applicable Subscription Fee;
(b) the Additional Subscription Fee, if applicable;
(c) for any additional services that you have requested as set out in your Commercial Order, including Data Hosting Services, if applicable; and
(d) the balance of any requested Services or expenses that may have been amortised into an annual Subscription,
and any other amounts due and payable under these Terms (collectively the Fees).
8.3. In relation to the Data Hosting Services, any network or setup required to facilitate connection to the hosted servers will not be incorporated into the Fees for the Data Hosting Services, unless otherwise set out on the Commercial Order and Invoice.
8.4. You agree to pay us the applicable Subscription Fee: (i) prior to the commencement of your Subscription Period and in accordance with the payment schedule in the Commercial Order, (ii) in the manner set out in the Invoice; and (iii) within 30 calendar days from the date of receipt of the Invoice.
8.5. If any payment of the Fees is not made in accordance with our Invoices and/or Commercial Order, we may (at our absolute discretion):
(a) immediately cease providing the Services and recover as a debt due and immediately payable from you our additional costs of doing so;
(b) charge an interest at a rate equal to the Commonwealth Bank of Australia commercial cash loan rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the due date of payment;
(c) engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts; and/or
(d) report you to independent credit data agencies.
8.6. You acknowledge and agree that (as applicable and depending on the Payment Option that you select for your Subscription and the relevant Commercial Order):
(a) to maintain your Subscription, you must pay us the Fees on a quarterly or half-yearly basis (Instalment Period) or annually, as set out in your Commercial Order and Invoice; and
(b) if we are unable to take or accept payment from you via the payment method set out on the Website, we will attempt to contact you via email as soon as we become aware of the payment failure. Until payment is confirmed, your Account will be locked and you will not be able to access or use our Services.
8.7. If a payment of a Fee is not able to be successfully processed or Buildtools does not receive the relevant Fee within 7 days from the day it is due for any reason then, as applicable, we may restrict your access to the Services without notice to you, in which case you will not be able to access or use our Services and any of the Data may not be accessible or recoverable.
8.8. If you make changes to your applicable Subscription option, and when we accept those changes, we will provide an Invoice setting out the adjusted Fees for the change within the Instalment Period. Any changes to your Licence or Subscription will take effect immediately upon our receipt of the adjusted payment amounts from you.
8.9. All amounts are stated in Australian dollars unless stated otherwise. All amounts are exclusive of GST. If you are located outside Australia you will not be charged GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
8.10. Our pricing structure or payment methods may be amended from time to time in our sole discretion. If you do not agree to any changes to our Fees, you may terminate these Terms without penalty.
- CANCELLATION AND REFUND POLICY
9.1. This clause applies only to Paying Users.
9.2. If you wish to cancel your Subscription prior to its expiry, you will need to do so by contacting Buildtools using the contact details at the end of these Terms.
9.3. Except as set out in the Commercial Order, and to the extent permitted by law, all Fees paid to us are non-refundable.
9.4. A Paying User must provide us with 60 days prior written notice of their intention to cancel their Subscription as specified in their Commercial Order.
10.1. You must, at all times, ensure the integrity of your Data and that your use of your Data is compliant with all laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) your Data and its transfer to and use by us as authorised by you under these Terms do not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies. We assume no responsibility or liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing or transmitting it.
10.2. Each Paying User acknowledges that by transmitting and receiving Data to and from the Software, the Paying User is making information available for the use of the Authorised Users that are participating in the Authorised Project (Project Participants) and the retraction of such information may negatively affect those Project Participants. Buildtools may, as a condition to complying with any request by us to retract or delete Data by you, require the Paying User to comply with Buildtools reasonable risk mitigation requirements including execution of a waiver by affected parties prior to any retraction of information.
10.3. You acknowledge and agree that any Data conversion and analysis performed with the Software is subject to the likelihood of human and machine errors, omissions, delays and losses, including but not limited to any loss of Data or damage to media that may give rise to loss or damage. Buildtools is not liable for any such errors, omission, delays or losses. You acknowledge and agree you are responsible for adopting reasonable measures to limit the impact of such problems.
Data Hosting Services
10.4. Where your Services include data hosting services as per your Commercial Order, information that is created when you or a Non-Paying User subscribe, such as log in details, project information, User Information and page information (Data) are stored in servers in Australia (Data Hosting Services). We will take steps to ensure that any Data we collect is kept secure and confidential.
10.5. Security: We implement security procedures to help protect your Data from security attacks. However, you understand that use of the SaaS Services necessarily involves transmission of your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of the Data being lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third-party service providers.
10.6. You acknowledge that installation and use of the SaaS Services may involve the Software extracting Data, User Information and/or other information from the operating system of your Device. You consent to us accessing and extracting such Data and/or related information for use as reasonably necessary for the SaaS Services. Data will also be used to monitor and assess how many Authorised Users you permit to access the Software.
10.8. Removals: We have no obligation to monitor any content uploaded to the SaaS Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Service. We have no liability to you for removing your Data from the Service.
10.9. Sensitive Data: You will not submit to the SaaS Services (or use the SaaS Services to collect): (i) any personally identifiable information, except as necessary for the establishment of an Account; (ii) any patient, medical or other protected health information; or (iii) any other information subject to regulation or protection under specific laws such as the My Health Records Act 2012 (Cth) ((ii) and (iii), collectively, Sensitive Data). Notwithstanding any other provision to the contrary, we have no responsibility or liability for Sensitive Data.
10.10. Where we do not provide you with Data Hosting Services you acknowledge and agree:
(a) you are solely responsible for the hosting and security of the Data and User Information and that we have no liability to you in this regard;
(b) you are responsible for implementing and maintaining the security systems as may be required to protect the transmission of User Information and Data;
(c) Buildtools does not guarantee the security of these services and Buildtools will not be responsible in the event of any infiltration of its security systems;
(d) Buildtools is not responsible for any other party’s servers; and
(e) you are responsible for complying with all laws and regulations regarding the use and disclosure of Data, including but not limited to all privacy laws and other requirements under Australian law.
- USER OBLIGATONS
11.1. You warrant that all information provided to Buildtools is and will remain true, accurate, current and complete.
11.2. You acknowledge and agree that:
(a) you are authorised to use the Services and to access any information or Data you supply to the Software or us, including any Data which has been inputted into the Software by an Authorised User to any other person you have authorised to do so and Data which we host as part of our Data Hosting Services (if applicable);
(b) the Software must only be used for your own lawful internal business purposes, in accordance with these Terms;
(c) all usernames and passwords required to access the Services are kept secure and confidential;
(d) if there is any unauthorised use of an Authorised User’s passwords or any other breach of security, you will immediately notify Buildtools of such activity;
(e) the SaaS Services operate within the Authorised User’s Device or other computer system (End User System) in accordance with the Training Manual;
(f) the reliability of the SaaS Services is dependent upon the Authorised User’s configuration and implementation of the Software; and
(g) it is the responsibility of the Authorised User to determine that the SaaS Services meet the needs of the Authorised User and their business and is suitable for the purposes for which the SaaS Services are used.
11.3. You may use the SaaS Services on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept these Terms which apply to you.
11.4. Upon request you must, as soon as practicable, grant Buildtools remote access to the End User System, Data, technology or other infrastructure used by the Authorised User to operate the Software. Failure to do so may prevent Buildtools from providing the support and maintenance for the Software as required to ensure the Software materially performs in accordance with the Training Manual.
11.5. Each Authorised User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Software and protecting the confidentiality of your Data with suitable management procedures, as they may see fit.
- PROHIBITED USE
12.1. You acknowledge and agree that you will not:
(a) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
(b) attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;
(c) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(d) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under these Terms);
(e) frame, “mirror” or service any of the Software on any Device, web server or other computer server over the Internet or any other network;
(f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;
(g) use the Software in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(h) take any action that interferes, in any manner, with Buildtools’ rights with respect to the Software;
(i) attempt to undermine the security or integrity of Buildtools’ computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;
(j) use, or misuse, the Software in any way which may impair the functionality of the Software, SaaS Services and/or Website or other systems used to deliver the Software or impair the ability of any other user to use the Software, SaaS services or Website;
(k) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Software is executed; and
(l) transmit, or input into the Software or Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
12.2. You acknowledge that any breaches of this clause may lead to termination of these Terms.
- CONFIDENTIAL INFORMATION
13.1. Subject to sub-clause 15.2, you acknowledge and agree that you will:
(a) not disclose the Confidential Information to any third party at any time;
(b) use your best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c) only use the Confidential Information for the purpose for which it was disclosed by Buildtools and not for any other purpose;
(d) be responsible for and assume liability in relation to each of your employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out under these Terms; and
(e) not display, demonstrate, show or grant access to any aspect of our Services, software or literature to any of individual or entity that is, who you know to be, or who you ought reasonably know to be, a competitor of Buildtools.
13.2. The obligations set out in clause 15.2 (a) to (d) do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of the Authorised User in breach of these Terms;
(b) received from a third party, except where there has been a breach of confidence leading to its disclosure;
(c) that must be disclosed by law, provided that the Authorised Users reveals only so much of the Confidential Information as the Authorised User is required by law to disclose and gives sufficient notice to Buildtools in order to allow Buildtools to object to, or otherwise prevent, the Confidential Information being disclosed.
13.3. This clause 15 will survive termination of these Terms.
- INTELLECTUAL PROPERTY
14.1. All Intellectual Property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software and the Services) will at all times vest, or remain vested, in us.
14.2. You must not, without our prior written consent:
(a) copy or use, in whole or in part, any of our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
(c) breach any Intellectual Property rights connected with the Website, the Software or the Services, including (without limitation) altering or modifying any of our Intellectual Property; causing any of any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property.
14.3. In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Website or in the Software, or accessed through the Website or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms give you no rights to such content.
14.4. This clause 16 will survive termination of these Terms.
- UPDATES AND SUPPORT
15.1. We will provide you with updates to the Software, including any improvements to the Software, that include but are not limited to bug fixes, addition of new features, new functionality, increased efficiency or other modifications (collectively referred to as Updates) for the duration of these Terms.
15.2. An Update does not include other Software, SaaS Services, Services or other computer software applications (whether on desktop or on cloud) released by Buildtools under other product names which may have features or functionality similar to the Software and SaaS Services, nor does it grant you an additional Licence.
15.3. You acknowledge that we have no obligation to provide you with any support for Updates to the Software, as agreed in these Terms.
15.4. We may, from time to time, issue updated versions of the Software and the Software may automatically connect to Buildtools or third party servers via the Internet to check for available Updates to the Software, and may either:
(a) automatically electronically update the version of the Software that you are using on your computer; or
(b) give you the option of downloading it. By installing the Software, you hereby agree to automatically request and receive Updates from Buildtools or third party servers. You consent to such automatic upgrading and agree that these Terms will apply to all such Updates.
15.5. The Software may contain automatic communications features which relay certain non-personally identifiable information to Buildtools in connection with the operation of the Software. This information may include your Software settings and what version of the Software you are using. Buildtools may use this information for research purposes including statistical analysis of aggregate customer behaviour.
15.6. Buildtools can provide support to the Authorised Users. If you require technical support, please contact us using the contact details at the end of these Terms. The support we provide to you is subject to you providing sufficient details about the issue and access (whether remotely or otherwise) to the Software and Data on the End User System, technology or infrastructure.
16.1. Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
16.2. You acknowledge and agree that:
(a) you use the Services and any associated programs and files at your own risk;
(b) the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
(c) we may use third party service providers to host the Software where we provide you with Data Hosting Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
(d) the Services may use, or be reliant or contingent on, the operation of third party products, facilities or services (Third Party Inputs). We do not make any warranty or representation, and to the maximum extent permitted by law, will have no liability, in respect of any failure of the Services or breach of these Terms as a result of any Third Party Inputs;
(e) we do not guarantee that any file or program available for download and/or execution from or via the Software is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
(f) from time to time, we may make certain services and/or features available to you for use which are still in their beta stage (Beta Services); Beta Services have not been fully tested and are provided on an ‘as is’ basis; and, to the fullest extent permitted by Law, we make no representations, warranties or guarantees in relation to such Beta Services; and
(g) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
16.3. Buildtools has no liability for use of the Software in countries other than as specified on the Commercial Order.
16.4. You acknowledge that whilst we will take reasonable steps to ensure that the Software will be fit for the purposes as advertised, we give no guarantees that:
(a) the Software will meet your requirements as the functionality of the Software is dependent upon configuration with the End User System and other components;
(b) the Software will be uninterrupted or error free;
(c) the Software will work in each of your desired use case scenarios; and
(d) the Software can be executed on every operating system, as it is impossible to test each variant.
16.5. The operation of the Software may be dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Software. Buildtools accept no responsibility or liability arising from or in connecting with any such interference or prevention of your use of the Software.
16.6. The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
- LIMITATION OF LIABILITY AND INDEMNITY
17.1. Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by the law:
(a) we have no liability to any Non-Paying User, and each Non-Paying User releases and discharges us from all liability, arising from or in connection the Services and these Terms;
(b) our maximum aggregate liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed the total amount of Fees you paid to us in the month in which the liability arose or $1 if no such Fees have been paid; and
(c) we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
17.2. Release: Despite anything to the contrary, to the maximum extent permitted by the law, we have no liability, and you release and discharge us from all liability, arising from or in connection with any:
(a) any injury, damage or loss to any person or property;
(b) failure or delay in providing the Service;
(c) unavailability, outage or interruption to the Service or your Computing Environment; or
(d) breach of these Terms or any Laws,
where caused or contributed to by any:
(a) event or circumstance beyond our reasonable control (including Force Majeure event);
(b) a fault, defect, error or omission in your Computing Environment or Data; or
(c) act or omission of you, your related parties or a third party service provider,
and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.
17.3. Indemnity: Despite anything to the contrary, to the maximum extent permitted by the law, you must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any claim relating to your Data, your use of the Services or any breach of these Terms by you.
18.1. To terminate these Terms or your Subscription, you must contact us using the contact details at the end of these Terms.
18.2. Your Subscription will be terminated at the end of the billing cycle, and payments will cease at the end of the month that you notify us of your intention to terminate.
18.3. It is your responsibility to retrieve all necessary Data from the software prior to termination regardless of whether you receive our Data Hosting Services.
18.4. We may terminate the Terms immediately, in our sole discretion, if:
(a) you breach any of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
(b) we reasonably suspect that you are attempting to reverse engineer the Software that is provided to you;
(c) we consider that a request for a License is inappropriate, improper or unlawful;
(d) you fail to provide us with clear or timely instructions to enable us to provide you with a License;
(e) we consider that our working relationship has broken down including a loss of confidence and trust;
(f) where the Authorised User is an individual, an order for the appointment of a trustee in bankruptcy or analogous step is taken; or
(g) for any other reason outside our control which has the effect of compromising our ability to provide you with the required Software or License within a required timeframe.
18.5. On termination or completion of the Services, we may retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
- FEEDBACK AND DISPUTE RESOLUTION
19.1. Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact any member of our staff.
19.2. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) the complainant must tell the respondent in writing within 14 days from the disputed event, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) if the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
19.3. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
You warrant that you have not relied upon any warranty, representation, statement, offer or other documentation made or provided by us or on behalf of us whether before or after the date you accepted these Terms.
Any notice required or permitted to be given to the Authorised User under these Terms will be addressed to the Authorised User at the email address provided by the Authorised User when requesting a License.
- RELATIONSHIP OF PARTIES
22.1. Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
22.2. The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
- RIGHTS OF THIRD PARTIES
Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
24.1. You must not assign any rights and obligations under these Terms whether in whole or in part without Buildtools’ prior written consent.
24.2. Any purported dealing in breach of this clause 26 is of no effect.
- WAIVER OR VARIATION OF RIGHTS
25.1. Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms do not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
25.2. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
- POWERS, RIGHTS AND REMEDIES
Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to these Terms or any other person.
- FORCE MAJEURE
If performance of these Terms or any obligation under these Terms is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
- CONSENTS AND APPROVALS
Where these Terms provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in these Terms, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
If any of the terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- FURTHER ASSURANCE
Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to these Terms.
If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.
- GOVERNING LAW AND JURISDICTION
These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
- PURCHASE ORDERS
To the extent a Paying User does not enter into a Commercial Order, but instead, issues a Purchase Order, for the provision of the Services, then, to the extent we accept the Purchase Order by notice in writing, we agree to perform the Services to you in accordance with that Purchase Order, and each reference to “Commercial Order” in these Terms will be interpreted as a reference to “Purchase Order”, to the extent the context permits or requires.
- ENTIRE AGREEMENT
These Terms and any document expressly referred to in them represent the entire agreement between the Parties, and superseded any prior agreement, understanding or arrangement between the Parties whether oral or in writing.
In these Terms, capitalised terms have the meaning given to them in these Terms, and as follows:
Authorised Projects means the projects that have been authorised for the SaaS Services, the number and details of which are particularised on your Commercial Order.
Authorised Users means the users that have been authorised to have full access rights to the Saas Services, as nominated by you, the number of which are particularised on your Commercial Order.
Business Day means a day on which banks are open for general banking business in New South wales, excluding Saturdays, Sundays and public holidays.
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
Commercial Order means a Buildtools approved order form with respect to the Services that is executed by Buildtools or a Buildtools Reseller and a Paying User.
Device includes a computer, mobile phone, tablet, console or other electronic device.
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
Party means a party to these Terms and Parties means all of them.
Projected Authorised Project Value means a genuine pre-estimate of your projected Turnover for the relevant Authorised Projects nominated for your Subscription Period, such pre-estimate to be provided by you to us prior to the commencement of your relevant Subscription Period.
Projected Total Project Value means a genuine pre-estimate of your projected Turnover for all projects undertaken by you or your organisation during your Subscription Period, such pre-estimate to be provided by you to us prior to the commencement of your relevant Subscription Period.
Purchase Order means the order form you send to us setting out the Services requested by you from us.
Subscription Fee means the application subscription fee payable by you for your relevant Subscription option, as set out in the Commercial Order and as may be further particularised on our Website.
Subscription Period means the application subscription period that applies to your relevant Subscription option, as set out in the Commercial Order and as may be further particularised on our Website.
Turnover means, in relation to one or more Authorised Projects the subject of a Subscription the gross amount of revenue or money that you receive in a financial year during a Subscription.
Training Manual means the document entitled ‘Training Manual’ provided with the SaaS Services (whether in hard copy or electronic format) and which contains instructions and technical information relating to the Software and SaaS Services including any help documentation and a user guide.
Unavailability means where any part of the Services are unavailable, and you are unable to use the Services, as a result of a default of these Terms by Buildtools.
For any questions or notices, please contact us at:
Buildtools Pty Ltd ACN 105 572 576 t/a Buildtools
Unit 507, 55 Miller Street
Pyrmont NSW 2009
Phone: (02) 9571 5540
Last update: 5 July 2018
© LegalVision ILP Pty Ltd
SCHEDULE 1 – ACCEPTABLE USAGE POLICY
1.1 This Schedule outlines the Usage Policy by which the we provide the Services (including the Data Hosting Services, if applicable).
1.2 This Schedule is designed to ensure that:
(a) the use of the Services by you and all other Authorised Users is maintained at an optimum level by mitigating and minimising disruptions and outages caused by use of such Services outside these Terms; and
(b) you understand your obligations to comply with all laws which apply to User Information and Data which we may host or which may be transmitted over telecommunications networks.
2 SERVICES COVERED BY THIS USAGE POLICY
This Schedule applies to the Services supplied to you by us in accordance with these Terms.
3 YOUR RESPONSIBILITIES
3.1 You acnowledge and agree to:
(a) use the Software in a manner which complies with all laws;
(b) provide us with any changes to Authorised Users access and permissions. We will not be liable for any loss or damage arising from you failing to provide us with notice of any such changes.
(c) be solely responsible for disseminating or posting content through the Software or publishing on the Website, including obtaining legal permission to use any works included in such content and/or web pages; and
(d) use the Software in a manner which does not interfere with, jeopardise or disrupt the provision of the SaaS Services.
4 UNACCEPTABLE USAGE
4.1 You ackonwledge and agree to not:
(a) reveal Account passwords to others or allow your Account to be used by non-Authorised Users;
(b) violate anyone’s legal rights including Intellectual Property rights in any jurisdiction;
(c) use the Services in relation to crimes such as theft and fraud;
(d) publish or transmit defamatory, obscene, threatening, abusive or offensive material or content;
(e) facilitate or engage in any activity which is prohibited under the Spam Act 2003 (Cth), any other applicable legislation and regulations, or any policies or regulations of the Australian Communications and Media Authority;
(f) create or propagate any harmful code;
(g) facilitate or engage in ‘hacking’, including gaining illegal or unauthorised access to any computers, accounts or networks accessible through the internet;
(h) misrepresent transmission information by forging, deleting or altering message headers, return mail information and/or internet protocol addresses in order to conceal or misidentify the origin of a message;
(i) carry out security breaches or disruptions of network communication. Security breaches include, but are not limited to, accessing data of which you and your Authorised Users are not an intended recipient or logging into a server or account that you and your Authorised Users are not expressly authorised to access or corrupt any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing, ping floods, packet spoofing, denial of service, scraping and forged routing information for malicious purposes;
(j) execute any form of network monitoring which will intercept data not intended for you;
(k) circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers;
(l) interfere with or denying service to anyone;
(m) send any form of harassment via email, or any other form of messaging, whether through the language, frequency or size of messages; and
(n) breach of any person’s privacy (such as by way of identity theft or phishing).