CTRLDOC

Terms & Conditions

Ctrldoc Software-as-a Service

Terms of Service

Background

1. The Company has developed the Software, which is a quality assurance, fire rating compliance, defect management, and samples management software platform.
2. The Company uses the Software to provide a quality assurance, fire rating compliance, defect management, and samples management software platform via the internet on a subscription basis or project basis.
3. The Client wishes to access the Software and use the Saas Services in its business operations.
4. The Company agrees to provide the Client with access to, and use of, the SaaS Services and Software, and the Client agrees to access and use the Software and the SaaS Services on terms and conditions of this agreement.

Terms and Conditions

1. Definitions and Interpretation

1.1. Definitions

The definitions in this clause apply in this agreement:

• (a) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes;
• (b) Algorithm means a coded set of instructions or formula for software that solves a problem or performs a computation or action;  
• (c) Artificial Intelligence (AI) means computer software and systems that learn, plan, reason, problem solve or process natural language as they go rather than only relying on pre-programmed tasks, i.e., speech recognition, computer vision, translation between (natural) languages, as well as other mappings of inputs;
• (d) agreement means these terms and conditions together with the Policies (which are incorporated by reference into these terms and conditions) and the Key Details;
• (e)App means the Mobile App and/or website application made available through the portal located at [insert];
• (f) Application Terms has the meaning given in clause 3.5(b);
• (g) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
• (h) Building Professional means any person who provides construction, building and fire safety services in respect of a building project, including, but not limited to, surveyors, electricians, fire protection, mechanical and caulking tradespersons, builders, developers, plumbers and inspectors;
• (i) Business Day means any day other than a Saturday, Sunday or public holiday in Victoria, Australia;
• (j) Business Hours means 9am to 5pm on Business Days;
• (k) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise;
• (l) Client means the entity named as such in the Key Details of our Service Proposal, or other such correspondence in relation to engaging Ctrldoc services, and where the context permits, includes its Personnel and Affiliates;
• (m) Client Data means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client, whether before or after the date of this agreement, that is or has been stored using, or inputted into, the SaaS Services.
• (n) Company, we, us or our means Lattech Pty Ltd (ACN 600 118 045) trading as Ctrldoc and where the context permits, includes its Personnel and Affiliates;
• (o) Confidential Information means:
  • (i) the Key Details, any information that is not public knowledge and any other information disclosed by or on behalf of the party or any of its Affiliates which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential;
  • (ii) the Software (including all Intellectual Property Rights contained within the Software and any data stored in the Software, which includes Client Data).
• (p) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Start Date as a likely result of breach of the agreement:
  • (i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
  • (i) loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data (including Client Data);
  • (iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
  • (iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
• (q) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Ctrldoc Software and Mobile App;
• (r) Consumer means a building body corporate or property owner whose building and fire penetration and compliance information (including Personal Information) is inputted into the Software by or on behalf of Client;
• (s) Data Analytics means the process of automating data analysis through machine learning to target critical insights and actionable intelligence faster and with higher accuracy;  
• (t) Feedback has the meaning given in clause 7.3
• (u) Fees means the fees for set up, access and use of the Software and SaaS Service as set out in the Key Details, as updated from time to time in accordance with clause 6.4 ;
• (v) Force Majeure Event means an event that is beyond the reasonable control of a party, including, but not limited to any strikes, lock-outs or other industrial disputes, epidemic or pandemic, failure of a utility service or transport or telecommunications network, act of God, natural disaster, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of hosting or data centre providers or other suppliers or sub-contractors, or shortage of suppliers, equipment or materials;
• (w) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• (x) Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity, and Intellectual Property has a corresponding meaning;
• (y) Key Details means the details for this agreement that are specific to a Client as set out in a Proposal Document, statement of work, email or purchase order;
• (z) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss;
• (aa) Mobile App means a native application for accessing and using the SaaS Service that is designed to operate on a mobile device operating system and made available by the Company on the associated third party application store;
• (bb) Machine Learning (ML) means a subfield of artificial intelligence, which is broadly defined as the capability of a machine to learn without being explicitly programmed.  Machine learning algorithms build a model based on sample data, i.e., training data, to make predictions or decisions without being explicitly programmed to do so; 
• (cc) Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way;
• (dd) Permitted Users means those Personnel or other third parties of the Client who are authorised to access and use the SaaS Service on the Client’s behalf in accordance with clause 4.3(a);
• (ee) Personal Information has the meaning given in the Privacy Act 1988 (Cth);
• (ff) Personnel means any agents, advisors, consultants, contractors, employees, directors, officers or sub-contractors of party and the personnel of any such agents, advisors, consultants, contractors or sub-contractors’
• (gg) Policies means the Privacy Policy and any other policy notified by the Company to the Client from time to time;
• (hh) Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles, the Spam Act 2003 (Cth) and any other laws relating to the handling of Personal Information;
• (ii) Privacy Policy means Company’s privacy policy available at ttps://www.ctrldoc.com/privacy/ or such other web address notified by the Company to the Client from time to time, which is incorporated into this agreement;
• (jj) Proposal Document means an email or other written proposal issued by the Company to the Client outlining the Start Date, Fees for the SaaS Service and other Key Details;
• (kk) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy Laws, anywhere in the world;
•  (ll) SaaS Service means the hosted services having the core functionality described on the Website which are provide or made available by the Company, or which the Company has an obligation to provide or make available, to the Client as a software-as-a-service solution via the App in the Territory and in accordance with this agreement;
• (mm) Software means the software owned by the Company (and its licensors) that is used to provide the SaaS Service, including the Mobile App, as further described in the Key Details;
• (nn) Start Date means the start date set out in the Key Details;
• (oo) Territory means worldwide.
• (pp) Underlying Systems means the Software, IT solutions, systems and networks (including software and hardware) used to provide the SaaS Service, including any third party solutions, systems and networks used to provide the SaaS Service;
• (qq) Website means: (i) the Company’s website available at www.ctrldoc.com/  or such other web address notified by the Company to the Client from time to time; and (ii) website portal used to access and use the Software (the URL being  https://app.ctrldoc.com/sso/logoutdone.do; and
• (rr) Year means a 12-month period starting on the Start Date or the anniversary of that date.

1.2 Interpretation

In this agreement:

• (a) no provision of this agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this agreement or including the provision in this agreement;
• (b) the singular includes the plural and vice versa;
• (c) a gender includes all genders;
• (d) a party means a party to this agreement;
• (e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
• (f) a person (including a party) includes:
  • (i) an individual, the Company, other body corporate, association, partnership, firm, joint venture, trust or government agency; and
  • (ii) the person's successors, permitted assigns, substitutes, executors and administrators;
• (g) the word ‘including’ or similar, is not intended as a term of limitation;
• (h) all monetary amounts are expressed in Australian Dollars ($AUD) unless expressly stated otherwise; and
• (i) parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.
• (j) if there is any conflict or inconsistency between this Agreement and either a Policy or a Proposal Document, then to the maximum extent permitted by Relevant Laws, the provisions in this agreement will prevail to the extent of the conflict or inconsistency.

2. Acceptance of these terms

• (a) By downloading, using, browsing or accessing the Software and the SaaS Services, the Client acknowledges that it has read, understood and accepted this agreement, together with the Company’s Policies, and agree to abide by them.
• (b) This agreement does not have to be signed in order to be binding on the Client. The Client indicates its acceptance of this agreement along with all other components of this agreement applicable to the Client by (whichever occurs earlier):
  • (i) indicating its acceptance of a Proposal Document that makes reference to this agreement;
  • (ii) accessing the SaaS Service or using the Mobile App; or
  • (iii) where the Company elects to have the Client sign the Agreement using an electronic contract management system or other electronic means, the Client’s electronic signature on the document provided by the Company that makes reference to this agreement;
  • (iv) by the Client providing approval to proceed by email; or
  • (v) by the Client approving a quote and/ or providing a PO number.

3.  SaaS Service

3.1 Company Obligations

• (a) Subject to payment of the Fees by the Client the Company must use reasonable endeavours to provide the SaaS Service:
  • (i) in accordance with this agreement and Relevant Laws;
  • (ii) exercising reasonable care, skill and diligence; and
  • (iii) using suitably skilled, experienced and qualified Personnel.
• (b) The undertaking in clause 3.1(a) shall not apply in the event of:
  • (i) any non-conformance which is caused, or contributed, by use of the Software contrary to the Company’s instructions or the terms of this agreement;
  • (ii) modification or alteration of the SaaS Services by any party other than the Company's duly authorised Personnel;
  • (iii) the unsuitability or malfunction of the computer hardware or computer software in conjunction with which the SaaS Services are used;
  • (iv) Force Majeure Events; and
  • (v) the unsuitability or malfunction of the SaaS Services when used in conjunction with any software, platforms, applications and tools supplied by a third party provider or the Client.

3.2 Remedial Action

In the event that the Company fails to provide the Services in accordance with clause 3.1, the Company will, at its expense, use reasonable endeavours to correct any such non-conformance, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking in clause 3.1. Notwithstanding the foregoing and subject to requirements of any Relevant Laws, the Company:

• (a) does not warrant that the Client’s use of the SaaS Services will be uninterrupted, virus-free or error-free, nor that the SaaS Services and/or the information obtained by the Client will meet its requirements, including any requirements imposed by the Building Energy Efficiency Disclosure Act 2010 (Cth);
• (b) is not responsible for any delays, delivery failures, or any other Loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Client acknowledges that the SaaS Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks; and
• (c) is not responsible for the reliability, accuracy or currency of any information or Client Data uploaded or submitted to the Software by the Client or anyone else. The Client or its third party providers are solely responsible for uploading or submitting to the Software and third party products the most up-to-date information or Client Data. 

3.3 Non-exclusive

 The Company’s provision of the SaaS Service to the Client is non-exclusive. Nothing in this agreement prevents the Company from providing the SaaS Service to any other person.

3.4 Availability

• (a) Subject to clauses 3.4(b), 3.4 (c), 3.4(d) and 3.4(e), the Company will use reasonable endeavours to ensure the SaaS Service is available on a 24/7 basis; however the Company makes representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the SaaS Services or the Software (including any goods or services provided in connection with the Software).
• (b) On occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Company will use reasonable efforts to publish on the Website and/or notify the Client by email advance details of any unavailability.
• (c) Through the use of web services and APIs, the SaaS Service interoperates with a range of third-party service features. The Client’s use of any third-party service features is subject to the terms and conditions imposed by the applicable third party provider. The Company does not make any warranty or representation on the availability of those features. If a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Company may cease to make available that feature to the Client.
• (d) If the Company ceases the availability of a feature that is a material feature of the SaaS Service then the Client may terminate the agreement by written notice to the Company and receive a pro-rata refund for the remaining unused portion of any pre-paid monthly subscription fees. To exercise this right, the Client must give the Company notice of its termination within 30 days of the Company ceasing the availability of the material feature. If the Client does not terminate this agreement in accordance with this clause, it is deemed to have accepted the SaaS Service without the material feature.
• (e) The Company will not be liable if the Software (or any services provided in connection with the Software) is unavailable for any reason, including directly or indirectly as a result of:
  • (i) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
  • (ii) negligent, malicious or willful acts or omissions of third parties (including the Company's third party service providers);
  • (iii) maintenance or repairs carried out by the Company, or any third party service provider in respect of any of the systems used in connection with the provision of the SaaS Services, or the Software;
  • (iv) services provided by third parties (including internet service providers) ceasing or becoming unavailable; and
  • (v) Force Majeure Events.    

3.5 Mobile App

• (a) The Company may make one or more Mobile Apps available for use by the Client from time to time. As at the date of publishing this agreement the Company has published the ‘Ctrldoc’ mobile application on ‘Google Play’ for the ‘Android’ operating system and the ‘Apple App Store’ for the ‘Apple iOS’ operating system.
• (b) Use of a Mobile App is subject to the terms of this agreement together with any end user licence terms and usage rules for the Mobile App published on the applicable app store by the Company or by the third party provider of the app store (to the extent that any such third party provider’s terms and rules do not conflict with the terms of this agreement) (Application Terms). A reference to accessing or using the SaaS Service in this agreement includes using a Mobile App and accessing or using the SaaS Service via a Mobile App.

3.6 Changes to the SaaS Service and Mobile App

• (a) Without notice to the Client, the Company may, at its absolute discretion, from time to time:
  • (i) change, add or delete the functions, features, performance, or other characteristics of the Software (and in the case of new functions or features, the additional fees to access and use the new functions or features); or
  • (ii) apply or install updates to, or new versions of, the Ctrldoc Software and/or the App.
• (b) The Client acknowledges that the Content on the Software is subject to change at any time and may be out of date at any given time. The Company is under no obligation to:
  • (i) update, correct or fix any Content or errors in the Software and/or the App; and/or
  • (ii) notify you of any changes to the Content or the Software unless required by a Relevant Law to do so.
• (c) While the Company would not typically make changes that would intentionally cause the Client to lose access to material Client Data or fundamentally decrease the utility of the SaaS Service or Mobile App to the Client (Detrimental Change), if a Detrimental Change is made during the term of the Agreement, then the Client may terminate the agreement by written notice to the Company. To exercise this right, the Client must give the Company notice of its termination within 30 days of the Company making the Detrimental Change. If the Client does not terminate this agreement in accordance with this clause, it is deemed to have accepted the Detrimental Change. For all other changes, the Client is deemed to have accepted the change by continuing to access and use the SaaS Service or Mobile App (as applicable) from the date it is changed.

3.7 Support

• (a) The Client may access the Help Guides for information on how to set up and use the SaaS Service and troubleshoot any issues the Client experiences in using the SaaS Service or a Mobile App.
• (b) Where the Client requires technical support for the SaaS Service for issues that are not covered by the information contained on the Website, the Client may contact the Company by the support email address or phone number listed on the Website. The Company shall use reasonable endeavours to respond to any requests for technical support as soon as reasonably practicable during Business Hours. The Client may also provide the Company with Feedback (such as feature requests or suggestions for enhancements or improvements to the SaaS Service, Software and/or the App), in the same manner as it requests support, however the Company may not respond to the Client in relation to this Feedback or act upon all such requests or suggestions. The Client acknowledges and agrees that the Client will not be paid any form of renumeration, compensation, royalties, fees or commission for any Feedback, and that the Company owns all Intellectual Property Rights in the Feedback.

3.8 Additional Services

The Company may, from time to time, make available to the Client additional services to supplement the SaaS Service upon the Client’s written request, on terms to be agreed between the Company and the Client in writing.

4. Client Obligations

4.1.  General use

The Client and its Personnel must:

• (a) only use the SaaS Service, Software and/or the App in accordance with this agreement solely for the Client’s own internal business purposes;
• (b) obtain and maintain all hardware, software and communications equipment necessary to access and use the Services and SaaS Service, Software and/or the App;
• (c) comply with all Relevant Laws with respect to its obligations under this agreement;
• (d) comply with all reasonable directions, Policies and guidelines of the Company, as advised from time to time;
• (e) carry out all of its responsibilities set out in this agreement in a timely and efficient manner; and
• (f) not:
  • (i) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the Software, and/or the App;
  • (ii) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Software and/or Mobile App, or any other third party software that you may access or use through the  Software and/or the App, in any way;
  • (iii) access all or any part of the Software, the App and/or the SaaS Services in order to build a product, service or code which competes or reproduces the Software, the App and/or the SaaS Services (in full or part);
  • (iv) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software and/or the App in any way, or otherwise learn the source code or algorithms underlying the Software and/or the App;
  • (v) license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, encumber or otherwise make the Software, the App and/or the SaaS Services available to any third party;
  • (vi) use the Software, the App and/or the SaaS Services for any unlawful purpose or other purpose not authorised by the Company in writing; and
  • (vii) engage in any activity or conduct that is in breach of any Relevant Laws.

4.2.  Access conditions

When accessing the Software, the App and/or the SaaS Services, the Client and its Personnel must:

• (a) not impersonate another person or misrepresent authorisation to act on behalf of others or the Company;
• (b) correctly identify the sender of all electronic transmissions;
• (c) not attempt to undermine the security or integrity of the Underlying Systems;
• (d) not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
• (e) not attempt to view, access or copy any material or data other than:
  • (i) that which the Client is authorised to access; and
  • (ii) to the extent necessary for the Client and its Personnel to use the SaaS Service in accordance with this agreement;
• (f) neither use the SaaS Service in a manner, nor transmit, input or store any Client Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
• (g) comply with this agreement, the Policies and any additional terms of use or policies on the Website, as updated from time to time by the Company.

4.3.  Access by Personnel

• (a) Without limiting clause 4.2, no individual other than a Permitted User may access or use the SaaS Service.
• (b) The Client may authorise any member of its Personnel or other third parties to be a Permitted User, in which case the Client will provide the Company with the Permitted User’s name and other information that the Company reasonably requires in relation to the Permitted User.
• (c) The Client must procure each Permitted User’s compliance with clauses 4.1 and 4.2  and any other reasonable condition notified by the Company to the Client.
• (d) The Client remains responsible for all activities or transactions of its Permitted Users on or via, the Software, the App and/or the SaaS Services. The Client will be liable for all acts, omissions, defaults and neglects of any Permitted Users as if they were the Client’s acts, omissions, defaults or neglects. A breach of any term of this agreement by the Client’s Permitted Users is deemed to be a breach of this agreement by the Client.

4.4.  Authorisations

• (a) The Client is responsible for procuring all licences, authorisations and consents required for it and its Personnel to use the SaaS Service, including to use, store and input Client Data into, and process and distribute Client Data through, the SaaS Service.
• (b) The Client acknowledges that:
  • (i) it controls each Permitted User’s level of access to the SaaS Services and Software and can revoke or change a Permitted User's access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a Permitted User or shall have that different level of access, as the case may be; and
  • (ii) if there is any dispute between the Company and a Permitted User regarding access to the SaaS Services and Software, the Company shall decide what access or level of access the Permitted User shall have to the SaaS Services and Software, if any

 

5.  Client Data

5.1.  Company access to Client Data

• (c) The Client acknowledges and agrees that the Company (its Personnel and third party service providers) may require access to the Client Data to exercise its rights and perform its obligations under this agreement.
• (d) The Client must arrange all consents and approvals that are necessary for the Company to access the Data as described in clause 5.1(c).

5.2.  Analytical Data

The Client acknowledges and agrees that the Company may:

• (a) use Client Data and information about the Client’s and the Client’s end users’ (if any) use of the SaaS Service to generate anonymised and aggregated statistical and analytical data (Analytical Data);
• (b) use Analytical Data for the Company’s internal research and product development purposes, marketing and promotional purposes and to conduct statistical analysis and identify trends and insights including, but not limited to, training of machine learning algorithms, artificial intelligence algorithms and updating, implementing and introducing new features, enhance existing features and or improve efficiency of the overall product; ; and
• (c) supply Data to third parties; and/or
• (d) the Company rights under clause 5.2 above will survive termination of expiry of this agreement; and
• (e) title to, and all Intellectual Property Rights in, Analytical Data is and remains the Company’s property.

5.3. Personal Information

• (a) The Client must comply with the Privacy Laws in relation to its collection, use and disclosure of Personal Information in connection with this agreement and the SaaS Service as if it was an entity regulated by the Privacy Laws.
• (b) Without limiting clause 5.3(a), the Client must obtain all necessary consents from the relevant individual (including Consumers and Permitted Users) to enable the Company to collect, use, process, store, hold and process Client Data, including any Personal Information, in accordance with this agreement.

5.4. Backups of Client Data

• (a) The Company shall use reasonable endeavours to follow its archiving procedures for all Client Data stored on the Software in accordance with its standard back-up policy from time to time. In the event of any Loss, corruption or destruction of Client Data, the Client’s sole and exclusive remedy shall be for Company to use reasonable endeavours to restore the Client Data, that is lost or damaged, from the latest back-up of the Client Data, maintained by the Company. The Client agrees to keep a separate backup copy of all Client Data uploaded by it onto the Software.
• (b) The Company shall not be responsible for any Loss, destruction, alteration, corruption or disclosure of Client Data caused by the Client’s (or the Client’s Personnel’s) acts or omissions or the acts of omissions of other users of the Permitted Users or any third party.
• (c) The Company reserves the right to charge the Client a fee to store and hold their Client Data (whether during the term of this agreement or after the agreement has been terminated) or where the Client Data stored by the Company exceeds the Company’s standard storage capacity. If the Company intends to charge you a storage fee in accordance with this clause, the Company will provide the Client with at least 30 days’ written notice. The Client’s continued use of the SaaS Services and Software constitutes acceptance of the new fee.  

5.5. International storage of Client Data

The Client agrees that the Company may store Client Data (including any Personal Information) in secure servers in various overseas territories and may access that Client Data (including any Personal Information) in Australia and various overseas territories from time to time.

5.6. Indemnity

The Client indemnifies the Company, its Personnel and its Affiliates against any Claim or Loss (including the actual legal fees charged by the Company’s solicitors) by a third party that any Client Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Client Data is Objectionable, incorrect or misleading.

6. Fees

6.1. Fees

• (a) The Client must pay to the Company the Fees as specified in the Service Proposal (if no Service Proposal, as set out in the relevant email, quote or purchase order) in accordance with clause 6.2. The Fees exclude GST, and the Client is solely responsible for the payment of any taxable supplies under this agreement.
• (b) The Client acknowledges that by accessing and using the SaaS Services and Software, the Client agrees to pay the Fees as specified in the Service Proposal, email, quote or purchase order (whether or not the Client has formally signed this agreement or provided written confirmation of acceptance).

6.2. Invoicing and payment

• (c) The Company will issue a valid tax invoice to the Client for any component of the Fees that are quoted on a one-time basis (such as set up fees and project fees), which is payable within 14 days of the invoice date.
• (d) All subscription Fees are payable in advance either monthly, quarterly or annually as specified in the Service Proposal (or the relevant email, quote or purchase order). Payment is due before the next billing cycle (in cleared funds without any set off or deduction)

6.3. Overdue amounts

• (a) If the Client fails to pay the Company the Fees or any amount owing under this agreement by the due date, without limiting any other remedies available to the Company under this agreement or any Relevant Law, the Company may, in its absolute discretion, do all or any of the following:
  • (i) immediately suspend the SaaS Services or disable access to all or any part of the Software and Mobile App (without liability to the Client or anyone else) until all overdue amounts (including interest) are paid in full;
  • (ii) charge interest on such overdue amounts, from the due date up to the date of actual payment, at an interest rate of 1.25% per month (15% per annum). Such interest will accrue on a daily basis and be compounded quarterly;
  • (iii) set-off any and all overdue amounts against any amounts owing to the Client by the Company under this agreement; or
  • (iv) terminate the agreement in accordance with clause 11.
• (b) The Client will pay the Company all costs and expenses incurred in recovering any outstanding invoices (including any interest), legal costs and expenses paid by the Company, in relation to enforcement steps or mercantile or collections agents.

6.4. Increases

• (a) By giving at least 20 Business Days’ written notice, the Company may increase the Fees, which will be deemed to be the Fees listed in the Key Details once updated under this clause, as follows:
  • (i) once each Year (but not the first Year) by the percentage change in the Consumer Price Index (all groups, weighted average of eight capital cities, or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by the Australian Bureau of Statistics prior to the date of the notice; and/or
  • (ii) from time to time for any other reason.
• (b) If the Client does not wish to pay the increased Fees, it may terminate this agreement on no less than 20 Business Days’ notice, provided the notice is received by the Company before the effective date of the Fee increase. If the Client does not terminate this agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

7. Intellectual Property

7.1. Ownership

• (a) Title to, and all Intellectual Property Rights in, the SaaS Service, the Website, the Software, the Mobile App, all Content and the Underlying Systems is and remains the property of the Company (and its licensors). The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
• (b) Subject to payment of the Fees, the Company grants the Client a non-exclusive, non-transferable, non-sublicensable and revocable licence for the Client and its Permitted Users to use the SaaS Service, the Software and the App during the period of this agreement in the Territory and in accordance with the agreement, and subject to compliance with the Application Terms.
• (c) Title to, and all Intellectual Property Rights in, the Client Data remains the property of the Company until receipt of full and final payment of the Fees (and any other amounts owing to us under this agreement). If and once title to the Client Data passes to the Client, the Client grants the Company a worldwide, royalty-free, non-exclusive, transferable and irrevocable licence to use, store, copy, modify, make available and communicate the Client Data for any purpose:
  • (i) enabling the Company to provide the SaaS Services, and otherwise perform its obligations and exercising its rights under this agreement; 
  • (ii) informing the Client of other products or services that the Company may offer from time to time, or in relation to third party products and services; and
  • (iii) identifying usage patterns, trends, and other statistical or behavioural data derived from use of the SaaS Services, in aggregated anonymized form, for the purposes of providing, operating, maintaining, or improving the SaaS Services or other products and services of the Company; and
  • (iv)sharing Client Data with: (i) an Affiliate or other third party (with whom the Company may contract or be affiliated with from time to time) for the purposes of performing or improving the SaaS Services provided by the Company; or (ii) an Affiliate of the Client, Building Professional or Consumer who requires the Client Data for building compliance purposes.

7.2. Know-how

To the extent not owned by the Company, the Client grants the Company a royalty-free, transferable, irrevocable and perpetual licence to use for the Company’s own business and commercial purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property Rights used or developed by the Company in connection with the provision and use of the SaaS Service and Software by the Client.

7.3. Feedback

If the Client provides the Company with ideas, comments or suggestions relating to the SaaS Service or Underlying Systems (collectively, Feedback), the Client acknowledges and agrees that:

• (a) all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Company;
• (b) the Company may use or disclose the Feedback for any purpose; and
• (c) the Client will not be paid any form of renumeration, compensation, royalties, fees or commission for any Feedback.

7.4. Third party sites and material

The Client acknowledges that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Company endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators, or any grant of licence by the Company to the Client in relation to that content. To the maximum extent permitted by law, the Company excludes all responsibility or liability for those websites or feeds.

7.5. Client logo

During the term of this agreement, the Client shall permit the Company to use the Client’s logo and name on the Website and the Company’s promotional material for marketing purposes upon the Company’s request and approval from the Client (which shall not be unreasonably withheld or delayed).

8. Confidentiality

8.1. Security

Each party must, unless it has the prior written consent of the other party:

• (a) keep confidential at all times the Confidential Information of the other party;
• (b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
• (c) disclose the other party’s Confidential Information to its Personnel or professional advisors on a need to know basis only and, in that case, ensure that any Personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 8.1(a) and 8.1(b).

8.2. Permitted disclosure

The obligation of confidentiality in clause 8.1 does not apply to any disclosure or use of Confidential Information:

• (a) for the purposes of performing this agreement or exercising a party’s rights under this agreement;
• (b) required by law (including under the rules of any stock exchange);
• (c) which is publicly available through no fault of the recipient of the Confidential Information or its Personnel;
• (d) which was rightfully received by a party to this agreement from a third party without restriction and without breach of any obligation of confidentiality; or
• (e) by the Company if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, merger, or corporate restructure.

9. Warranties

9.1 Mutual Warranties

Each party warrants that it has full power and authority to enter into and perform its obligations under this agreement which will constitute binding obligations on the warranting party.

9.2 Australian Consumer Law

The SaaS Service comes with guarantees that cannot be excluded under the Australian Consumer Law. If the Client constitutes a consumer under the Australian Consumer Law in accessing the SaaS Service and these guarantees are not met, the Client is entitled to a replacement or refund for a major problem with a product, compensation for the drop in value below the price paid or a refund for a major problem with a service, and compensation for any other reasonably foreseeable loss or damage. The Client is also entitled to have a product repaired or replaced if the product fails to be of acceptable quality and the problem does not amount to a major problem. Nothing in these Terms is intended to remove the Client’s rights under the Australian Consumer Law. If the Company is entitled to limit the remedies available to the Client for breach of such guarantees, the Company expressly limits its liability to either supplying the affected services again or paying the cost of supplying the services again.

9.3 No Implied Warranties

To the maximum extent permitted by law, and subject always to clause 9.2 and the operation of the Australian Consumer Law:

• (a) the Company’s warranties are limited to those set out in this agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
• (b) the Company makes no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency, validity quality or security of the SaaS Service, the Software and the Mobile App, the Company does not promise that the SaaS Service or Mobile App will:
  • (i) meet the Client’s requirements or be suitable for a particular purpose; or
  • (ii) be secure, free of viruses or other harmful code, uninterrupted or error free.

9.4 Limitation of remedies

Where legislation or rule of law, other than the Australian Consumer Law, implies into this agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this agreement. However, the liability of the Company for any breach of that condition or warranty is limited, at the Company’s option, to:

• (a) supplying the SaaS Service again; and/or
• (b) paying the costs of having the SaaS Service supplied again.

10. Liability

10.1 Maximum Liability

Subject to clause 10.3, the maximum aggregate liability of the Company under or in connection with this agreement or relating to the SaaS Service, Software, the Website and the Mobile App, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under this agreement in the previous six months (which in the first six months is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).

10.2 Unrecoverable Loss

To the maximum extent permitted by Relevant Laws Subject to clause 10.3, the Company will not be liable to the Client, Building Professionals, Consumers, Permitted Users or any third party for:

• (a) any Claims or Losses (including Consequential Loss); or
• (b) Loss of, or damage to, any property or any personal injury, illness or death to the Client, its Personnel any third person, arising out of, relating or connected to, the provision or use of the SaaS Service, Software, the Website and the Mobile App and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

10.3 Unlimited Liability

Clauses 10.1 and 10.2 do not apply to limit the Company’s liability under the Australian Consumer Law or under or in connection with this agreement for or fraud or willful misconduct.

11. Term, Termination and Suspension

11.1 Duration

This agreement will commence on the earlier of the Start Date or the date the Client commences using the SaaS Service and Software and shall continue until terminated in accordance with clause 11.

11.2 No Fault Termination

Either party may terminate this agreement without cause on at least 20 Business Days’ prior written notice to the other party.

11.3 Other Termination Rights

   Either party may, by notice to the other party, immediately terminate this agreement if the other party:

• (a) breaches any material provision of this agreement and the breach is not remedied within 10 Business Days of the receipt of a notice from the first party requiring it to remedy the breach; or
• (b) breaches any material provision of this agreement and the breach is incapable of being remedied;
• (c) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
• (d) is unable to perform a material obligation under this agreement for 20 Business Days or more due to Force Majeure Event.

11.4 Consequences of termination or expiry

On termination of this agreement:

• (a) the Client must within 7 days pay any outstanding Fees and any other amounts that may be due to the Company under this agreement;
• (b) the Company will retain the Client Data in accordance with our archiving procedures for a period of 5 years from the date the relevant project has been completed (unless the Client requests in writing that the Company either: (i) delete the Client Data and excluding Personal Information which shall be destroyed or de-identified in accordance with the Privacy Act 1988 (Cth); (ii) retain the Client Data for a period exceeding five years, in which case, the Company may charge the Client a storage fee at its prevailing rates at the time). At any time prior to the Company destroying or otherwise disposing of any Client Data in its possession, the Client may request a copy of the most recent back-up of the Client Data (in electronic form), provided the Client has paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and pays the Company a fee at its prevailing rate at the time to retrieve the most recent back-up of the Client Data. The Company accepts no liability for any Loss or Claim sustained or incurred by the Client which arises from the Client’s failure to create a back-up of any Client Data. The Company does not warrant that the format of the Client Data will be compatible with any software;
• (c) the Client will immediately destroy or return to the Company (at the Company’s option) all Confidential Information, Intellectual Property and in its possession, custody or control and, in the case of destruction, certify to the Company that it has done so; and
• (d) all licenses to use the SaaS Services and rights of access to the Software and Mobile App granted under this agreement will immediately terminate.

11.5 Accrued Rights

Termination of this agreement does not affect either party’s rights and obligations that accrued before that termination.

11.6 Survival

Provisions of this agreement which are either expressed to survive its expiry or termination, or from their nature or context it is contemplated that they are to survive, will remain in full force and effect notwithstanding such expiry or termination.  Without limitation, the parties agree that clauses 3.2, 3.4(e), 5.2, 5.4, 5.6, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 will survive the termination of this agreement.

11.7 Rights to restrict or suspend

Without limiting any other right or remedy available to the Company under this agreement or under Relevant Laws, the Company may, with or without notice, restrict or suspend the Client’s access to the SaaS Service and/or delete, edit or remove the relevant Client Data if the Company considers that the Client (including any of its Permitted Users) has:

• (a) undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
• (b) used, or attempted to use, the SaaS Service:
  • (i) for improper or unlawful purposes; or
  • (ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
  • (iii) transmitted, inputted or stored any Client Data that breaches or may breach this agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
  • (iv) otherwise materially breached this agreement.

12. Force Majeure Event

 

12.1.  Force Majeure Event

Subject to clause 12.2, neither party is liable to the other for any failure to perform its obligations under this agreement to the extent caused by a Force Majeure Event, provided that the affected party:

• (a) immediately notifies the other party and provides full information about the Force Majeure Event;
• (b) uses its best efforts to overcome the Force Majeure Event; and
• (c) continues to perform its obligations to the extent practicable.

12.2. Exception to Force Majeure Event

Clause 12.1 does not excuse a party from any obligation to make a payment when due under this agreement.

 

13. Dispute Resolution

 

• (a) Any party claiming a dispute exists under the agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
• (b) The parties must in good faith attempt to resolve any dispute between them. 
• (c) If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute. 
• (d) Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute. 

 

14. Notices

• (e) By using the Software and SaaS Services the Client accepts that communication with the Company will be mainly electronic. The Company will contact the Client by email or provide the Client with information by posting notices on the Software and/or App.
• (f) The Client acknowledges that all notices, certificates, consents, approvals, waivers and other communications in connection with this agreement may be provided electronically and comply with any legal requirements that such documents be in writing.
• (g) Notice will be deemed received and properly served immediately when posted on the Software and/or App or 24 hours after an email is sent. As proof of service, it is sufficient that the email was sent to the email address specified by the Client in the Service Proposal.

 

15. General

15.1. Rights of third parties

No person other than the Company and the Client has any right to a benefit under, or to enforce, this agreement.

15.2. Waiver

To waive a right under this agreement, that waiver must be in writing and signed by the waiving party.

15.3. Relationship

No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.

15.4. Severability

If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of this agreement which will continue in full force and effect.

15.5. Variation

• (a) The Company may vary any provision of this agreement including the Policies (for example to respond to changes to law, the SaaS Service or the Company’s business) from time to time by notice to the Client and publishing the varied agreement and Policies on the Website. Unless otherwise stated in a notice associated with the variation, all variations to this agreement and Policies will take effect for the Client the next time one of the Client’s users access the SaaS Service or 14 days after the Client is first notified of the variation (whichever occurs earlier). If the Client objects to the variation (acting reasonably) then the Client must discontinue its use of the SaaS Service and, as its sole and exclusive remedy, the Client may terminate this Agreement by notice to the Company. To exercise this termination right, the Client must give the Company notice of the objection and termination within 30 days of the Company providing notice of the variation.
• (b) Subject to clauses 3.6, 6.4 and 15.5(a), any variation to this agreement must be in writing and signed by both parties.

15.6. Entire agreement

This agreement sets out everything agreed by the parties relating to the SaaS Service, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this agreement that is not expressly set out in this agreement, and no such representation, warranty or agreement has any effect from the Start Date.

15.7. Assignment and subcontracting

• (a) The Client may not assign, subcontract or transfer any right or obligation under this agreement without the prior written consent of the Company. Any change of control of the Client is deemed to be an assignment for which the Company’s prior written consent is required under this clause. In this clause, change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
• (b) The Company may at any time directly or indirectly assign, transfer or otherwise dispose of any of its rights or interests in, or any of its obligations or liabilities under, or in connection with, this agreement.

15.8. Governing Law

This agreement is governed by, and must be interpreted in accordance with, the laws of the State of Victoria, Australia. Each party submits to the exclusive jurisdiction of the Courts of Victoria, Australia in relation to any dispute connected with this agreement.

Last update: 29/11/ 2023