MYCONSTRUCT SUBSCRIPTION TERMS & CONDITIONS
Effective from 25th November 2019
1 FORMATION OF AGREEMENT
1.1 The person that clicked “I Agree” during the sign on process warrants to Us that he/she had authority to enter into this Agreement on behalf the entity that was entered into the sign on screen on the Service as the party entering into this Agreement.
1.2 By using the Service the entity that uses the Service adopts this Agreement as from the Effective Date, and that entity acknowledges that it is bound by the terms and conditions of this Agreement as from the Effective Date, even if the person that clicked “I Agree” during the sign on process did not have authority to enter into this Agreement on behalf the entity that uses the Service.
1.3 If there is any difference between the entity that was entered into the Service during the sign on process and the entity that uses the Service, the latter shall prevail. This latter entity is bound by the terms and conditions of this Agreement and is referred to as “You” in this Agreement.
2 SUBSCRIPTION SERVICE
Subscription Period
2.1 During the Subscription Period, We grant You:
(a) a non-exclusive, non-transferable, personal, limited use right to Access and use the Software for Your internal business operations for up to the number of Concurrent Users, and maximum amount/number of other Service Metric, for which You have paid the Fees for that Subscription Period;
(b) the right to receive Support Services.
2.2 You must increase the maximum number of Concurrent Users and/or Service Metric for which You have been granted the right to use as soon as You use the Service for more Concurrent Users and/or Service Metric than You have been granted the right to use. In this case You must immediately advise Us of the new maximum number of Concurrent Users and/or Service Metric that You require the right to use, and We will advise You of the Fee for such right. If You wish to use the Service for such higher maximum number of Concurrent Users and/or Service Metric You must first pay Us the Fees for such rights, such Fee to be paid online immediately for such higher amount. Upon receipt of such Fee, Your right to use and Access the Service is increased to the higher maximum number of Concurrent Users and/or Service Metric for the remainder of the Subscription Period, but all other terms remain the same.
2.3 The initial Subscription Period is 12 months from the Effective Date. Thereafter the Subscription Period automatically extends each year in yearly increments until this Agreement is terminated in accordance with its terms. We may vary Your Subscription Period so that each Subscription Period starts on the 1st of the month. The Subscription Period is 12 months, whether You elect to pay for the entire 12 month Subscription Period in advance or whether You elect to pay for the 12 month Subscription Period in equal monthly instalments.
2.4 At the end of a Subscription Period We may offer You the opportunity to enter into a further agreement with Us for the same Services (including for up to same maximum number of Concurrent Users and Service Metric that You were granted the right to use in the current Subscription Period, as varied clause 2.2, and using the same payment arrangements, for a further 12 month period), at Our current Fees and terms and conditions (Renewal Details). In this case We will provide You with notice (including by notice posted by Us via the Service and/or by email or letter) of any Renewal Details at least 20 Business Days before the end of the Subscription Period.
2.5 The Service will be automatically renewed on the basis of the Renewal Details unless you terminate this Agreement prior to the last day of your current Subscription Period by:
(a) terminating the Service using the “My Subscription” feature in the Service.
2.6 The renewal process in clauses 2.4 to 2.5 shall apply at the end of each Subscription Period.
Scope of Service
2.7 It is acknowledged and agreed by both parties that the Service provides a tool which customers can use to help them to meet their compliance obligations under building laws and health and safety laws, but using the Service does not ensure that customers comply with any laws, including building laws or health and safety laws. Your compliance with law is dependent on Your actions and decisions taken outside of the Service. Accordingly:
(a) We expressly exclude any liability for Your failure to comply with any laws, including building laws health and safety laws, even where You are using the Service as part of Your compliance program (except only to the extent that the failure to comply is a direct result of a defect in the Service and even then any such liability is subject to the limitations in this Agreement);
(b) You must rely on Your own legal, health and safety, human resources or other professional advice in respect of the use of the Service and Your compliance with any laws, including building laws and health and safety laws;
2.8 You must ensure that You have extracted any Customer Data prior to the end of the Subscription Period.
2.9 You acknowledge and agree that owing to the nature of the Service, We do not represent or warrant that:
(a) access to the Service will be continuously available; or
(b) the Service will be error-free.
2.10 You acknowledge and agree that the Service is provided "as is" and "as available" without any warranties or guarantees of any kind, whether express or implied, including but not limited to the accuracy, reliability, or completeness of any data, content, or information provided through the Service.
2.11 You are solely responsible for verifying the accuracy and completeness of any data, estimates, quotes, variations, invoices, orders, or other information generated or processed through the Service before relying on it or passing it on to Your own customers. We strongly recommend that You double-check all information before use.
2.12 In no event shall We be liable for any errors, inaccuracies, or omissions in the data, estimates, quotes, variations, invoices, orders, or other information generated or processed through the Service, whether caused by a system bug, user error, or any other reason. You assume all risks associated with the use of the Service and any reliance on the accuracy, reliability, or completeness of the data, estimates, quotes, variations, invoices, orders, or other information generated or processed through the Service.
2.13 You agree to indemnify and hold Us harmless from any and all claims, damages, losses, or expenses, including reasonable legal fees, arising out of or in connection with any errors, inaccuracies, or omissions in the data, estimates, quotes, variations, invoices, orders, or other information generated or processed through the Service, whether caused by a system bug, user error, or any other reason.
Third Party Content
2.14 Our Service and/or Website may include advertisements, links to third party websites or comments, news articles, blogs or other content that is provided by other people or organisations (Third Party Content). We do not endorse, approve, condone or verify the quality, accuracy or suitability of any Third Party Content, nor any goods or services provided or promoted by any person other than Us. You must make Your own enquiries and rely on Your own independent advice before acting on any information, goods or services that are provided by any person or organisation that provides Third Party Content.
Prohibited Actions
2.15 You must not, unless express provided by this Agreement:
(a) use the Service to provide any facility management or service bureau service, or for the benefit of any third party;
(b) copy, adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Software;
(c) sub-license, lease, rent, loan, assign, novate or otherwise transfer the Service to any third party;
(d) disclose the Service to any third party other than any of Your contractors who are bound by obligations of confidentiality which are no less restrictive than those specified in clause 7;
(e) reverse engineer, reverse compile, de-compile or disassemble the object code of the Software or any part of the Software, or otherwise attempt to derive the source code of the Software, except to the extent permitted by law;
(f) use the Service for any use or with any Customer Data that:
(i) breaches the Acceptable Use Policy;
(ii) contains links to any other website that contains information that is of a type that is prohibited in the Acceptable Use Policy;
(g) access, monitor or copy any content of the Service using any robot, spider, scraper or automated process or manual process, or deep link to any part of the Service;
(h) bypass or circumvent, or attempt to bypass or circumvent any measure that is designed to limit access to any part of the Service, including any License Key, except to the extent permitted by law;
(i) frame, mirror or otherwise include any part of the Service in any other website or application;
(j) use the Service for the purpose of building a product or service, that We believe is competitive to the Service, or copying its features or user interface;
(k) remove, alter or obscure any Marks, or any proprietary or restricted use notice on the Service or any material that is downloaded from it;
(l) allow the Service to become the subject of any charge, lien or other encumbrance; or
(m) deal in any other manner with any or all of Your rights and obligations under this Agreement.
Review
2.16 You acknowledge and agree that We, or Our nominee, may inspect and have access to the Service, and the usage logs in the Service, for the purposes of ensuring that You have complied with the terms of this Agreement.
Operational Issues
2.17 In order to access and use the Service, each user must have its own device with a web browser, relevant application software on its computer and a connection to the internet. You acknowledge and agree that it is Your responsibility and/or that of any of Your permitted users to acquire, maintain and properly use any hardware, software and communications infrastructure, and to update any hardware, software or communications infrastructure if the technical specifications of the Service change during the Subscription Period. You acknowledge and agree that all capital and on-going costs for such items are Your responsibility and/or that of Your permitted users.
2.18 We may implement any new version of the Service (including adding new features or removing existing features) as part of Our product roadmap, add, vary or delete advertising, correct defects in the Software, perform maintenance on or vary the hosting facilities, infrastructure, networking, hardware, software or other material that supports the Service, or vary the Acceptable Use Policy (any of which are a Change), in Our absolute discretion, and without liability or prior notice to You. We do not guarantee that any change, addition, deletion, error correction, patch or new version of the Service (or any part of it) will be compatible with any Customer Data, application, other software or interface that connects to or interfaces with the Service that has been made by You or on Your behalf). If a Change materially adversely affects the features, functions or Your rights to use the Service then You may provide Us with written notice to terminate this Agreement specifying that the Change is the reason for termination. Where We receive that written notice within 20 Business Days of the Change, the Agreement will terminate and either:
(a) where You have paid annually in advance, We will provide You with a pro rate refund relating to the unexpired period of the Subscription Period (calculated from the date of the Change);
(b) where you are paying using monthly instalments, You will not be liable to pay any further instalments,
and such payment (or the removal of the liability to pay further instalments, as applicable) is Our entire liability and Your sole remedy for such Change.
2.19 In no event will We be liable for any breach of this Agreement because of any failure or downtime that is caused or contributed to by:
(a) a Force Majeure Event;
(b) Scheduled Maintenance;
(c) any failure of any software, hardware or communication infrastructure outside of Our firewall;
(d) any breach of this Agreement by You.
3 SUPPORT SERVICES
3.1 We will provide You with Support Services in accordance with this clause 3 during the Subscription Period.
3.2 If You believe that there is a defect in the Service You should raise a support ticket on the Website support pages and We will use reasonable efforts to correct any material error that is so reported.
3.3 We may implement any patch, error correction or new release into the Service at any time. We will use reasonable efforts to provide You with at least 2 Business Day’s notice of any major new release.
3.4 We shall have no obligation to provide Support Services where the defect arises from:
(a) misuse, incorrect use of or damage to the Service from whatever cause (other than any act or omission by Us);
(b) use of the Service in combination with any software other than the software described on the Website;
(c) any breach of Your obligations under this Agreement; or
(d) user error.
3.5 Unless agreed otherwise with You, We will use reasonable efforts to perform all Scheduled Maintenance on the Our hosting infrastructure and the Service outside of 6.00 am to 10.00 pm on Business Days. We will use reasonable efforts to ensure that Scheduled Maintenance will not exceed 6 hours per calendar month.
3.6 The services that are provided under this Agreement to remedy any defect in the Service are provided by MY CONSTRUCT (AUSTRALIA) PTY LTD (ACN 678 461 615) of Suite 401, 55 Plaza Parade, Maroochydore Queensland 4551.
In order to make use of this service You must contact Our support desk during the period of the agreement:
Email address support@myconstruct.com or via https://help.myconstruct.com/
When You make use of this service, We will use reasonable efforts to provide a remedy or a workaround for any defect in the Service in a timeframe that is reasonable given the nature of the issue and the impact on Your business operations.
The costs for the service that We provide as a Warranty Against Defects are included within the Fees that are set out in the Contract Details. No additional fees are payable by You for this service. You are responsible for any expenses You incur in using this service.
“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
3.7 The benefits that We provide to consumers under the Warranty Against Defects are in addition to any other rights or remedies a consumer may have in respect of these goods or services under the Australian Consumer Law.
4 FEES AND TAXES
4.1 You must pay Us the Fees and Taxes in advance throughout the Subscription Period using the Approved Payment Method. Where You have elected to pay the annual Fee by monthly instalments You must pay each instalment on the first day of the month throughout he Subscription Period. You must also pay any Fee and related Tax that is charged for making a payment using a particular Approved Payment Method.
4.2 You expressly authorise Us to use the Approved Payment Method provided to Us to deduct the Fees and Taxes in respect of each amount that is due to Us under this Agreement, until the Agreement is terminated in accordance with its terms.
4.3 Where the Fees and Taxes are denominated in a currency other than the currency that is used as the default currency of Your Approved Payment Method (i.e. Your Visa card is not issued in the country which uses the currency of payment), You agree:
(a) to pay any charge from the provider of the Approved Payment Method for an international transaction;
(b) to use the exchange rate used by the provider of the Approved Payment Method for the conversion of the Fees, Taxes or other amounts payable under this Agreement into the currency We use; and
(c) that the net amount that is received by Us is always the Fees, Taxes and other amounts that are denominated in the local currency specified in this Agreement.
4.4 To the extent permitted by law, You irrevocably authorise Us to deduct from any Approved Payment Method that You have used to pay any amount under this Agreement or for which You have provided the details to Us, any:
(a) charge backs or fees, including any related taxes, incurred by Us for any failed transaction from the Approved Payment Method, as well as Our then current administration fee for dealing with any failure to receive payment; and
(b) amount payable as damages, losses or expenses, or any amount payable under an indemnity, arising out of or in connection with this Agreement.
4.5 If there is any failure to make payment by the Approved Payment Method by the due date for any reason, including that the Approved Payment Method ceases to be valid, ceases to be authorised for debiting any amount stated in this Agreement or there is insufficient funds in the relevant account, then You must within 5 Business Days:
(a) provide an alternative Approved Payment Method and authorise all amounts due under this Agreement to be deducted from that Approved Payment Method; and/or
(b) make payment of all amounts due by another payment method agreed with Us.
4.6 You are responsible for payment of all Taxes. All payments or reimbursements under this Agreement must be made free and clear and without deduction for any and all present and future Taxes. Payments due to Us under this Agreement shall be increased so that amounts received by Us, after provision for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement as if no Taxes were due on such payments.
5 TRADEMARKS
5.1 You acknowledge and agree that We are the owner and/or licensee of the Marks and that all goodwill arising out of Your use of the Marks under this Agreement shall accrue to Us. You will not acquire any right to, or interest in, any of the Marks. You must not at any time or in any way indicate Your ownership of, or any right in, the Marks and You must not contest the right of Us or any of Our Affiliates to the use of any of the Marks.
5.2 You agree that We may reference You and Our relationship under this Agreement in Our marketing presentations, marketing materials, lists of customer and websites, as well as in discussion with prospective resellers and customers, and industry analysts. We may use Your logos and trademarks in connection with such materials and websites with Your prior written consent, such consent not to be unreasonably withheld.
6 PROPRIETARY RIGHTS
6.1 As between You and Us, all title in all Customer Data remains with You. You grant Us and Our Representatives the right to access, copy and modify Customer Data solely to:
(a) exercise Our rights or meet Our obligations under this Agreement;
(b) provide Support Services.
We have no right or obligation to review, edit or modify the Customer Data for any other purpose.
6.2 You grants Us a non-exclusive, irrevocable, royalty free license to any Transactional Data to:
(a) copy, adapt, translate, create derivative works from, publish, commercially exploit or otherwise use the Transactional Data in any way; and
(b) sub-license any third party to do any of the same.
You warrant to Us that You have all the necessary rights, consents and approvals to grant the licenses stated in this clause.
6.3 All Intellectual Property Rights that are created by any person that are adaptations, translations and derivative works in any part of the Software or Service are and shall remain the exclusive property of Us (and Our licensors, if any) or shall vest in or be transferred to Us immediately upon creation, as the case may be.
6.4 Except for the rights expressly granted by Us to You under this Agreement:
(a) We and Our licensors, if any, reserve all right, title and interest in and to any part of the Software and Service and all Intellectual Property Rights in them;
(b) no right, title or ownership interest in or to any part of the Software and Service whether by implication, estoppel or otherwise, is granted, assigned or transferred to You under or in connection with this Agreement.
6.5 You acknowledge and agree that the unauthorised disclosure, use or copying of any part of the Software or Service may cause Us serious financial loss that may not be adequately compensated by monetary damages. Accordingly, in the event of any unauthorised disclosure, use or copying of any part of the Software or Service You agree that We shall have the right to seek injunctive relief to stop such unauthorised disclosure, use or copying.
6.6 If You provide Us with any feedback, comments, code, material or suggestions relating to Our products, Software or Service (Feedback), You grant Us an irrevocable, non-cancellable, worldwide, royalty-free, license to use, copy, adapt, translate, create derivative works from, sub-license or otherwise exploit in any way (including without hindrance, restriction or subject to any exercise of any person’s moral rights) that Feedback for any purpose, including to assist Us to develop or improve current products, Software or Service or to assist Us develop or improve future products, software and services.
7 CONFIDENTIAL INFORMATION
7.1 The Recipient must not use any of the Discloser’s Confidential Information except in connection with the performance of its obligations specified in this Agreement.
7.2 The Recipient must not disclose the Discloser’s Confidential Information to any third party without obtaining the Discloser's prior written consent, provided that the Recipient may disclose the Discloser’s Confidential Information to:
(a) its employees, agents and contractors, and those of any of its Affiliates, who have entered into a written agreement with the Recipient that is no less protective of the Discloser’s Confidential Information than this Agreement, provided those persons have a need to know such information for the purposes of this Agreement, including administration and customer/account management;
(b) its lawyers, bankers, auditors, accountants and insurers, who have a need to know the information in order to provide professional advice to the Discloser relating to this Agreement.
7.3 You must ensure that each person who is issued with a password and/or user name does not disclose their password or user name to any other person.
7.4 The Recipient must use, and must ensure that any person to whom it is permitted by this Agreement to disclose the Discloser’s Confidential Information to, use the same measures to protect the Discloser’s Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable measures.
7.5 The restrictions of this clause 7 shall not apply to information that:
(a) is independently developed by the Recipient without any access to the Confidential Information of the Discloser;
(b) becomes known to the Recipient without restriction, from a third party who, to the Recipient's knowledge, was not bound by a confidentiality agreement with the Discloser, or otherwise prohibited from disclosing the information to the Recipient, or had the right to disclose it;
(c) was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
(d) was lawfully in the possession of the Recipient before the information was disclosed to it by the Discloser;
(e) is or becomes in the public domain through no act or omission of the Recipient;
(f) the parties agree in writing is not confidential or may be disclosed; or
(g) is required to be disclosed under an order or requirement of a court, administrative agency, or other governmental body (but only to the minimum extent required to comply), provided however, that Recipient shall provide prompt notice to Discloser of any potential disclosure and shall use its reasonable efforts to prevent disclosure of such information.
8 PRIVACY
8.1 The parties must:
8.3 You consent to Us:
(a) obtaining from a credit reporting agency, or any person You authorise Us to contact, any of Your personal or corporate information, including information relating to creditworthiness, credit standing, credit history or credit capacity (Credit Information), for the purposes of assessing Your creditworthiness and/or deciding whether to grant or continue to provide credit approval to You.
(b) providing any of Your personal or corporate information, including Credit Information and any information concerning the status of Your account or any default, to a credit reporting agency, credit provider or person You authorise Us to contact, in connection with Our use of the credit reporting agency's services, on the understanding that such information may be held by the credit reporting agency to provide its/their credit reporting services (including the provision of such services to other customers of the credit reporting agency). You consent to Us being given a consumer credit report to collect overdue payment on commercial credit.
9 INTELLECTUAL PROPERTY RIGHT INDEMNITY
10 LIMITATION OF LIABILITY AND INDEMNITY
10.1 To the extent permitted by law, then unless You can prove that it is not fair or reasonable for Us to rely on this limitation, Our liability for breach of a statutory guarantee under sections 54 to 59 of the Australian Consumer Law is limited to one of the following, at Our option:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) the payment of the cost of having the goods repaired.
10.2 To the extent permitted by law, then unless You can prove that it is not fair or reasonable for Us to rely on this limitation, Our liability for breach of a statutory guarantee under sections 60 to 62 of the Australian Consumer Law is limited to one of the following, at Our option:
(a) supplying the services again; or
(b) payment of the cost of having the services supplied again.
10.3 Subject to clauses 10.1 and 10.2, to the extent permitted by law, and subject to clause 10.4, Our liability to You for any claim whether it be in contract, tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with this Agreement shall be limited to the greater of:
(a) $1,000 (Australian dollars); or
(b) the Fees paid for the Service in the 6 months prior the date that the claim first arose.
10.4 Subject to clauses 10.1 and 10.2, We are not liable for any loss, damage or expense which comprises or arises from or in connection with:
(a) lost profits, lost revenue, failure to realise expected savings, lost, corrupted or damaged data, business interruption or loss of goodwill; or
(b) indirect, consequential, special, punitive or exemplary loss, damage or expense, even if We have been advised of, knows of, or should have known of the possibility of such loss, damage or expense.
10.5 Neither party will be liable to the other for any loss suffered by the other due to an inability to comply with its obligations under this Agreement as a result of any Force Majeure Event.
10.6 You indemnify Us for any loss, damage or expense (including legal fees on an indemnity basis) that We may incur in connection with any breach of clauses 2.1, 2.8, 2.10, 2.11, 4, 7, 8, 12.5 or any non-payment of any amount due to Us, except to the extent that the loss, damage or expense was caused by Our negligence.
11 TERMINATION
11.1 You may terminate this Agreement for any reason at any time by giving Us notice or by using the “My Subscription” features in the Service. In this case, You are not entitled to any refund of any Fees and the provisions of clause 11.3 apply.
11.2 Either party may terminate this Agreement immediately by giving the other notice if the other:
(a) breaches any other provision of the Agreement and does not remedy it within 5 Business Days of receipt of notice of the breach;
(b) ceases to carry on business, is unable to pay its debts as they fall due, enters into liquidation or has a controller, managing controller, liquidator or administrator appointed or suffers any similar event in any jurisdiction.
11.3 If the Agreement is terminated then:
(a) where You have elected to pay the annual Fee in monthly instalments, You must immediately pay Us any unpaid installments for the remainder of the Subscription Period (unless the Agreement is terminated by You under clause 11.2(b));
(b) Your right to Access and use the Service terminates immediately; and
(c) each party shall immediately return to the other (or at the other party’s request destroy) any of the other’s Confidential Information.
11.4 Any termination of this Agreement shall not prejudice, limit or restrict any other rights or remedies either party may have arising prior to such termination. To the extent permitted by law, We shall be under no obligation to:
(a) refund any amounts paid by You for any Service that has started prior to any termination of this Agreement;
(b) excuse You from Your obligation to pay any unpaid installments of the Fees for the 12 month Subscription Period,
except where this Agreement expressly states that a refund (or excuse from further liability) will be provided.
11.5 We may use any technical means, including the License Key(s), to enforce its rights under this Agreement.
12 GENERAL
Notices
12.1 Any notice that is given under this Agreement:
(a) by Us; may be:
(i) posted to You at the address set out in this Agreement;
(ii) emailed to You at any email address provided by You; or
(iii) posted on the Website;
(b) by You; must be posted to Us at the address stated on the Website as its head office and addressed to the Executive Director.
12.2 A notice is deemed to be received:
(a) when posted; within 3 Business Days of the date when it was posted;
(b) when emailed; within 1 Business Day of the time that the email was sent, provided no notice of failure has been received by the sender within that business day; or
(c) when posted on the Website, within 20 Business Days of being posted. You are responsible for checking the Website regularly to see any notice that is posted there.
Relationship of Parties
12.3 The parties to this Agreement are independent operators. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties, any party of the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
Compliance with Laws
12.4 You agree to comply with all laws which are relevant to You performing Your obligations under this Agreement, including the Privacy Act 1988 (Cth).
Assignment
12.5 You must not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or part, without Our prior written consent.
12.6 We may assign or transfer this Agreement, in whole or part, without Your consent. This Agreement will bind and accure to the benefit of each party’s permitted successors and assigns. Notwithstanding clause 7, We may disclose any of Your Confidential Information which is reasonably necessary to affect any assignment or transfer.
Waiver
12.7 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Remedies
12.8 Except as specifically provided otherwise in this Agreement, the rights and remedies provided under this Agreement are cumulative and in addition to, and not exclusive of, any rights or remedies provided by law.
Severability
12.9 If any part of this Agreement is determined to be invalid, illegal or unenforceable by any court or competent authority, such part will be severed from the remainder of the Agreement and the remaining provisions will continue in force.
12.10 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Agreement
12.11 The parties are entitled to rely on any notice or communication in electronic format, including any facsimile or email, that on its face appears authentic, and that has the purported author’s name on it to the same extent as if it were a document written by the author. The parties consent to this Agreement being signed or varied through electronic communication.
12.12 To the extent permitted by law:
(a) the Agreement records the entire agreement between the parties in relation to its subject matter. The Agreement supersedes all previous negotiations, understandings or agreements in relation to the subject matter and expressly excludes the pre-printed terms and conditions of Your purchase order (if any);
(b) all conditions, warranties, guarantees or rights, including any implied by custom or other circumstance, that are not expressly specified in this Agreement, are excluded.
Governing Law
13 DEFINITIONS AND INTEPRETATION
Unless the context requires otherwise, the following words bear the meaning set out below.
13.1 Acceptable Use Policy means Our policy that sets out certain limits on use of the Service that applies equally to all Our of customers, and is set out on https://myconstruct.com/acceptable-use-policy/.
13.2 Access means to access the Service via the internet from any device/browser that is supported by the Service.
13.3 Agreement means the details on the Contract Details, the Acceptable Use Policy and the terms and conditions in this document.
13.4 Affiliate means:
(a) in relation to You; any entity that is under the effective control of the entity that ultimately has effective control of the first-mentioned entity;
(b) in relation to Us; any entity that is an association whose primary role is to support the needs of the building industry, and is connected to Us through agreements or the use of common logos or websites, from time to time.
13.5 Approved Payment Method means Visa, MasterCard, PayPal or other payment method supported by the Service from time to time.
13.6 Business Day means any weekday that is not a public or bank holiday in Queensland.
13.7 Confidential Information means any non-trivial information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing), disclosed by either party or its Representatives to the other party or its Representatives in connection with this Agreement that, if disclosed in writing is marked as “Confidential” or “Proprietary,” or, if disclosed orally is identified as “Confidential” or “Proprietary” at the time of disclosure and is specifically identified as confidential in a written document provided by Discloser to Recipient within thirty (30) days after the oral disclosure, or which is, or ought to have been, understood by the parties, using reasonable business judgment, to be confidential. For clarity, Our Confidential Information includes any part of the Software, Service, Licence Keys and this Agreement, including the terms, pricing and Fees payable.
13.8 Concurrent User means a person or device that is connected to, or logged in to, the Service at any one time (irrespective of whether the person or device is actively processing data). If multiplexing hardware or software is used (e.g. a TP monitor or web server product), this must be measured at the multiplexing front end.
13.9 Contract Details means the information set out on the web pages of the Website that sets out the details of the transaction, including the description of the Service, the maximum number of Concurrent Users, the maximum amount/number of any other Service Metric, the frequency of payment, the Approved Payment Methods, and the Fees and Taxes.
13.10 Customer Data means any information in any format, that is entered into the Service by any person other than Us and Our Representatives that is to be stored, processed or used by or on behalf of You.
13.11 Discloser means the party that makes a disclosure of Confidential Information.
13.12 Effective Date means the date when You clicked "I Agree" to enter into this Agreement during the signup process, whether for a paid subscription or a trial period. By signing up, You acknowledge that You have read, understood, and agreed to be bound by this Agreement and our policies as stated on the signup page.
13.13 Fees means the amounts payable for the Service for the Subscription Period, exclusive of Taxes. The Fees that are applicable at the Effective Date are set out on the Contract Details.
13.14 Force Majeure Event includes:
(a) fire, flood, earthquake or other inclement weather conditions;
(b) national emergency, terrorist act, war;
(c) a malfunction or failure of telecommunications equipment or services, including the internet;
(d) any consequence of a virus, Trojan horse or any malicious code or denial of service attack that could not have been prevented by the use of the then current version of anti-virus software;
(e) industrial action or inaction, or any government action; or
(f) a circumstance beyond the reasonable control of the party that suffers the event.
13.15 GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
13.16 Intellectual Property Rights means copyright, trade marks, design rights, service marks, patent, semiconductor or circuit layout rights, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing anywhere in the world, or protected by statute from time to time.
13.17 Licence Key means any form of lock, password or other mechanism that may be used to control access to, or manage use of, the Service.
13.18 Marks means all trade marks, service marks, logos or other words or symbols identifying the Service or Our business.
13.19 Personal Information means information that is defined as personal information under the Privacy Act 1988 (Cth).
13.20 Recipient means the party that receives a disclosure of Confidential Information.
13.21 Representatives means the employees, agents, contractors of a party, or those of any of its Affiliates, and the professional representatives of a party providing advice in relation to this Agreement, including the lawyers, bankers, auditors, accountants and insurers of a party.
13.22 Scheduled Maintenance means the routine maintenance that is recommended by the manufacturer or supplier of Our hosting infrastructure to prevent failures, outages, performance issues or defects, and includes updates to any software and any engineering changes to hardware.
13.23 Service means the right to Access and use the Software and receive Support Services during the Subscription Period in accordance with this Agreement.
13.24 Service Metric means the maximum amount/number of any good, service or right that You are granted the right to Access and use for the Fees, (e.g. if You acquire the right to have X gb of data storage capacity, or the right to use y number of contracts).
13.25 Software means software program that is Accessed as part of the Service, as set out on the Contract Details, (including any online documentation and help tutorials), and any update and new release that is incorporated into the Software from time to time in Our discretion, that is to be provided as part of the Service under this Agreement.
13.26 Subscription Period means the period of 12 months from the Effective Date, and any further period of 12 month where the Subscription Period is renewed in accordance with clauses 2.4 to 2.6, unless this Agreement is terminated sooner in accordance with its terms.
13.27 Support Service means the services described in clause 3.
13.28 Taxes includes any GST, sales taxes, duties, withholding taxes, levies, tariffs, imposts or other charges levied by any level of government which arise out of or in connection with the Service or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on Our net income.
13.29 Transactional Data means any data that is entered into the Service by any person other than Us, where any data that identifies the You or any other Personal Information has been removed. Transactional Data is deemed not to be, or include any of, Your Confidential Information.
13.30 We/Us/Our means MY CONSTRUCT (AUSTRALIA) PTY LTD (ACN 678 461 615).
13.31 Website means Our website, currently at https://myconstruct.com.
13.32 “including”, “includes” are not words of limitation.
13.33 Unless specified otherwise, all amounts stated in this Agreement (including the Contract Details) are stated in Australian Dollars.
Last reviewed 11th of July 2024