Terms and Conditions
BUILDXACT TERMS OF SERVICE
These terms and conditions (the “Terms of Service”) govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “Buildxact Services”).
The Buildxact Services are offered to you, the Client (as defined below), subject to the Client’s acceptance of the Terms of Service and all other operating rules, policies (including, without limitation, our Privacy Policy at www.buildxact.com/privacy-policy), the Guidelines (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Buildxact Platform or made available to the Client on or through the Buildxact Services (collectively, the “Terms”). When accepted by the Client, these Terms form a legally binding contract between the Client and Buildxact (as defined below).
If the Client is entering into these Terms on behalf of an entity, such as for an employer or the company the Client works for, the Client represents that they have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE BUILDXACT SERVICES, THE CLIENT ACKNOWLEDGES THAT THEY HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF THE CLIENT IS AN AUTHORISED REPRESENTATIVE OF ANOTHER PERSON (I.E. A COMPANY), THE CLIENT CONFIRMS THAT THEY HAVE AUTHORITY TO, AND DO IN FACT, BIND THAT PERSON TO THESE TERMS. IF THE CLIENT DOES NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE BUILDXACT PLATFORM OR THE BUILDXACT SERVICES.
From time to time, the Terms of Service will be reviewed and may be revised. Buildxact reserves the right to amend the Terms of Service as setout in clause 15 Modifications.
Buildxact may, at its sole discretion, elect to suspend or terminate access to, or use of the Buildxact Services to anyone who violates these Terms.
1. Definitions
Account
the primary means for accessing and using the Buildxact Services;
Annual Contract Paid Annually
means the Subscription Type as described in clause 14.3(a);
Annual Contract Paid Monthly
means the Subscription Type as described in clause 14.2(a);
Approved Purpose
means the use of data for provision of the Buildxact Services, or as required by law;
Authorisation
the set of rights and privileges on the Buildxact Website assigned to a User by a Client;
Buildxact
Buildxact USA Inc for Clients located in the United States of America; or Buildxact Software Inc for Clients located in Canada; or Buildxact Ltd for Clients located in the United Kingdom; or Buildxact Australia Pty Limited (ACN 630 502 751) of Level 1, 411 Collins Street, Melbourne, Victoria 3000 for Clients located in Australia, New Zealand or other jurisdictions each of the above entities being a provider of the Buildxact Services to the construction industry;
Buildxact Materials
the visual interfaces, graphics, design, systems, methods, information, computer code, software, trademarks, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Buildxact Services and Buildxact Platform;
Buildxact Services
the Buildxact software as a service including Website, Services, System, Content, Interfaces, Portals and all Content, Data and/or i. products available on or through the Buildxact Platform that is used to access describe or enable Buildxact to show or deliver its Services; and ii. information exported out of the Buildxact Platform in the form of reporting or third-party visualization tools;
Claim
means in relation to any person, a claim, action or proceeding, judgment, damage, loss, cost, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent;
Client
a natural or legal person, or an Enterprise Customer, who has accepted these Terms with Buildxact;
Client Data
has the meaning given in clause 4.1;
Confidential Information
means any and all information which is disclosed by a party to the other party verbally, electronically, visually or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary;
Commencement Date
means the date a Client first registers online (either through a trial, a free subscription, or by paying a subscription Fee) or otherwise with Buildxact or otherwise confirms acceptance of this;
Content
any data and information available through Buildxact Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Data
files and any other digital data and information including but not limited to Personal Information and Personal Data, which is subjected to, created by or inserted into the Buildxact Services or otherwise inserted to the System by Buildxact or the Client (including the specific Users, Customers, Sub Contractors, Organizations, Tasks, Descriptions, Templates, Buildxact Data, Estimates, Jobs associated with the Client);
Defect
means an unintended behavior of the Platform that detrimentally impacts usage of the platform;
Educational Trial
access to enable authorized training bodies to include the Buildxact Services as part of their teaching materials and online learning management systems in their courses for building and construction.
Student Users are provided access for non-commercial use to the Buildxact Services for a period defined in the agreement with their authorized training body;
Enterprise Customer
has an arrangement with Buildxact for multiple Clients to share branding, and share information with the Enterprise Customer, as set out in agreements between the Enterprise Customer and their Clients and the Clients Users;
Fee
regular payment for using the activated Account to access and use Buildxact Services;
Files
documents of any kind (images, drawings, spreadsheets, text files, etc.) that are inserted to the System by the Client, and usually associated with a particular contact, customer, organization, estimate or job;
Force Majeure Event
has the meaning given in clause 17.3;
Free Trial
if applicable, a trial for 14 days or such other period specified by Buildxact under which temporary access is granted to a Client by Buildxact for the purposes of the Client trialing the Website and Buildxact Services in accordance with a Subscription Type but without paying a Fee for the duration of the trial;
Free Subscription
is the Subscription Type where Users use the activated Account to access and use Buildxact Services without paying a Fee for a period defined by Buildxact;
Guidelines
additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Buildxact Services;
License
means for the duration of the Subscription Plan, Buildxact grants a non-exclusive, non-transferable (except as expressly provided in this Terms of Service), limited license to the Client and its Users;
Month to Month Contract
means the Subscription Type as described in clause 14.1(a);
Paying Client
a Client that is being charged a Fee for use of the Buildxact Services;
Personal Information
is information about an individual that enables an individual to be identified and is normally included in Data, and may include information such as the individual’s name, email address, telephone number, address and company information;
Platform or Buildxact Platform
means the software platform through which the Buildxact Services are provided to Clients;
Privacy Policy
means one of the website URLs listed below as updated from time to time:
Privacy Policy US for Clients located in the United States of America; or
Privacy Policy Canada for Clients located in Canada; or
Privacy Policy UK for Clients located in the United Kingdom; or
Privacy Policy NZ for Clients located in New Zealand or
Privacy Policy Australia for Clients located in Australia, or other jurisdictions;
Rate Sheet
means the then current pricing documentation made available to Clients on the Website or provided by Buildxact to its Clients;, the content of which may be varied at any time and from time to time;
Subscription Plan
means a paid subscription as defined under clause 14;
Subscription Types
the type of subscription for Buildxact Services that a Client subscribes to as set out in clause 3.1, which subscription is related to the use and functionality of the Buildxact Services;
System
the integrated cloud “software as a service” computing solution for providing the Buildxact Services, including applications, software, databases, Data, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
Terms
has the meaning given on page 1 of these Terms of Service;
Terms of Service
means these terms and conditions as it is updated from time to time;
User
a natural person granted with the Authorization to use the Account on behalf of a Client. Unless otherwise set out in a separate agreement, or the User is in an Educational Trial, Free Trial or has a Free Subscription, each user is a Paying Client;
Website
means the internet site with the any of the following Uniform Resource Locators (URLs):
Buildxact AU
Buildxact US
Buildxact CA
Buildxact NZ
Buildxact UK or
and any other site that Buildxact may use or provide its Clients in respect of the Buildxact Services.
2. Term
This Agreement commences on the Commencement Date and will continue to apply until it is terminated in accordance with clause 12. For the avoidance of doubt, the terms and conditions of this Agreement continue to apply regardless of any changes in the type of subscription which may be varied at any time and from time to time.
2. The Buildxact Services
2.1 Use of Buildxact Services
For the duration of the Subscription Plan, Buildxact grants a non-exclusive, non-transferable (except as expressly provided in this Terms of Service), limited license to the Client and its Users to:
a. collect, store and organise Data, such as add new suppliers and clients, create estimates and jobs, upload plans and pricelists, add new Users and grant them Authorizations, link and integrate to third party applications;
b. modify and delete Data;
c. configure the standard features of Buildxact Services; and
d. receive reasonable help and guidance from Buildxact regarding the use of the Buildxact Services.
2.2 Technical Support
Buildxact shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. Buildxact shall respond to enquiries of support from a Client utilising the contact methods set forth below as soon as reasonably possible or as advertised on the Buildxact Platform including our Website from time to time. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient or may not occur at all.
The contacts for all enquiries of support are:
- built-in live-chat application on the Website,
- e-mail: [email protected]
3. Using the Buildxact Services
3.1 Subscription Type
Buildxact provides different Subscription Types to support the needs of different Clients and organizations in accessing Buildxact Services.
Subscription Types are provided in greater detail on the Website and include:
- Free Trial Subscription – when applicable enables a Client to try the Buildxact Services before paying a subscription Fee
- Paid Subscription – (covers a number of different Subscription Types)
- Educational Trial Subscription – offered by authorised training bodies to their students.
- Free Subscription – when applicable enables a Client to use the Buildxact Services without paying a subscription Fee for a period defined by Buildxact at Buildxact’s sole discretion.
Subscription Services provided by Buildxact are related to the Subscription Type a Client subscribes to.
3.2 Establishing an Account
Certain features, functions, parts or elements of the Buildxact Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must accept these Terms and the Privacy Policy by clicking “Proceed”, “Get Started”, “Sign up”, “Buy Now”, “I agree to the Terms and Conditions”, or other similar button that acknowledges the Client consents to these Terms.
3.2.1 CLIENTS
Each Client may have only one Account and if desired multiple Users always in accordance with the Subscription Type. If two or more persons use or access an Account on behalf of a Client, the Client must designate such persons as individual paying Users. Each such User shall be subject to the restrictions set forth in these Terms. For the avoidance of doubt, each User must have their own unique ID created in the Account of the Client
If a Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. Buildxact is not responsible for verifying the right of representation or validity of Authorization of any User. However, Buildxact may ask additional information or proof of the person’s credentials.
3.2.2 USERS
The Client and any User associated with an Account must provide Buildxact with true, accurate, current, and complete information including Personal Information about the Client, Users or Account and keep such information up to date.
3.2.3 ENTERPRISE CUSTOMERS WITH MULTIPLE CLIENTS
Enterprise Customers may have arrangements with Buildxact to allow their Clients to be grouped under that Enterprise Customer. In this case there may be sharing of information from the Client to the Enterprise Customer and from the Enterprise Customer to the Client as set out in the agreements between the Enterprise Customer and their Clients. Buildxact provides such information sharing as directed by or agreed with Enterprise Customer and Buildxact.
An Enterprise Customer is required to have an Account that allows these arrangements to be managed and can have Users in their own right.
3.3 Logging into an Account
Enterprise Customers may have arrangements with Buildxact to allow their Clients to be grouped under that Enterprise Customer. In this case there may be sharing of information from the Client to the Enterprise Customer and from the Enterprise Customer to the Client as set out in the agreements between the Enterprise Customer and their Clients. Buildxact provides such information sharing as directed by or agreed with Enterprise Customer and Buildxact.
An Enterprise Customer is required to have an Account that allows these arrangements to be managed and can have Users in their own right.
3.4 Fees
The use of an Account is subject to payment of the Fee. Upon sign-up for an Account, the Client must select a Subscription Type. Different rates apply to different Subscription Type. The applicable Fee is charged in advance on monthly or annual payment intervals (as applicable), unless agreed otherwise between parties.
All Fees are non-refundable, meaning, for the avoidance of doubt, there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. Please refer to clause 13 (Termination) and clause 14 (Subscription Plans and Termination Terms) for detail on termination and how each Subscription Plan is terminated.
3.5 Free Trial
A new Client may be entitled to a Free Trial. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the Client is required to select a suitable Subscription Type and pay the first Fee.
3.6 Free Subscription
A new Client may be entitled to a Free Subscription on such terms as Buildxact may determine from time to time. A Client can elect to upgrade to a paid Subscription to access additional features.
4. Client Data
4.1 Uploading Client Data to Platform
If the Client uploads or enters Data to the Platform, such Data is defined as “Client Data” and any processing of such Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by Client or made available on the Buildxact Services by Buildxact.
By uploading Client Data to the Platform, Client authorises Buildxact to process the Client Data and generate other data and information from Client Data.
Information including Data supplied by other third parties under license to Buildxact or generated or created by Buildxact Services is the result of algorithms and processes that are the exclusive property of Buildxact or of a Licensor of Buildxact and the Client is permitted to use such Data in the normal conduct of its business but not for other than the Approved Purposes under these Terms. Buildxact or its licensors has right, title and interest in all Information and Data other than Client Data and Personal Data. For the avoidance of doubt the Client does not have the right to control, share, exploit or commercially sell or deal with Data for any other purpose than defined herein except the Client has the right to use the subset limited to the Client Data.
Buildxact may offer additional Services that we expect would be helpful to our Clients, or to the Client’s customers or Enterprise Customers and some of these Services may wish to include some Client Data and or Personal Data. If we propose to offer these Services that rely on Client Data and/or Personal Data, the Client’s permission will first be sought on an Opt-In basis. The Client will have the option to accept or decline to participate and if the Client declines such data will not be used.
The Client is responsible for ensuring that:
- the Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Data that violates the terms of these Terms, the rights of Buildxact, other Clients or Users, persons or organisations or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful; and
- the Client and all of the Users associated with the Account have the necessary rights to enter the Client Data and use the Data, including to insert it into the Platform and process it by means of the Account and to allow Buildxact the right to use and disclose this Client Data subject to the these Terms of Service and Privacy Policy.
4.2 No Guarantee of Accuracy
Buildxact does not guarantee any accuracy with respect to any information contained in any Data, and strongly recommends that the Client thinks carefully about what is transmitted, submitted or posted to or through the Buildxact Services. The Client understands that all information contained in Data is to be used only for Approved Purposes under these Terms and its accuracy and use is the sole responsibility of the person from whom such Client Data originated. This means that the Client, and not Buildxact, is entirely responsible for all Data that is uploaded, entered, transmitted, or otherwise made available through the Buildxact Services, as well as for any reasonable actions taken by Buildxact or other Clients or Users as a result of such Data.
4.3 Unlawful Client Data
Buildxact is not obliged to pre-screen, monitor or filter any Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Data or the action of its unlawful processing is discovered or brought to the attention of Buildxact or if there is reason to believe that certain Data is unlawful, Buildxact has the right to:
- notify the Client of such unlawful Data;
- deny its publication on the Website or its insertion to the System;
- demand that the Client bring the unlawful Data into compliance with these Terms and applicable law;
- temporarily or permanently remove the unlawful Data from the Website or Account, restrict access to it or delete it.
If Buildxact is presented with convincing evidence that the Data is not unlawful, Buildxact may, at its sole discretion, restore such Data, which was removed from the Website or Account or access to which was restricted.
In addition, in the event Buildxact believes in its sole discretion the Data violates applicable laws, rules or regulations or these Terms, Buildxact may (but has no obligation), to remove such Data at any time with or without notice.
The Client indemnifies Buildxact from any actions that arise out of the Client entering unlawful Data into the Buildxact Services as per clause 11.
4.4 Liability in respect of Claims
The Client acknowledges and agrees that any Claim made in respect of ownership of, title to, or use of Client Data by any third party is the sole responsibility of the Client and Buildxact will not be liable for any Claim made by a third party in respect of such use of Client Data. Further, the Client agrees to indemnify Buildxact, its related bodies corporate and affiliates and their respective directors, officers, employees and agents from any such Claims arising in relation to Client Data under this clause 4.
4.5 Compelled Disclosure
Buildxact may disclose a Client’s confidential information including Personal Information to the extent compelled by law to do so. In such instance, Buildxact will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Buildxact is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which Buildxact is a party, and Client is not contesting the disclosure, Client will reimburse Buildxact for its reasonable cost of compiling and providing secure access to that confidential information.
5. Pricing
Upon sign-up for an Account, the Client must select a Subscription Type. Different rates apply to different Subscription Types. The applicable Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties.
5.1 Standard Pricing
The standard pricing options for each subscription type are shown on the Buildxact Services pricing page on the relevant Website according to the Client’s location referred to as the Rate Sheet.
6. Restrictions
6.1 Prohibited Activities
The Client and its authorized Users must not:
- use the Buildxact Services and the Client’s Account other than for the Approved Purpose;
- infringe any laws, third party rights or our policies, procedures or Guidelines (including, for the avoidance of doubt, the Privacy Policy);
- use the Website or their Account in any way when the Client has been suspended from using the Website or their Account in accordance with these Terms;
- circumvent or manipulate the Fee structure, billing process, or Fees owed to Buildxact;
- post false, inaccurate, misleading, defamatory or offensive content (including Personal Information);
- transfer their Account, username and password to another person without our consent;
- distribute viruses or any other technologies that may harm Buildxact, the Website, their Account, other accounts on the Website, or the interests or property of other Account holders, Clients or other users of the Website and Buildxact Services;
- violate or attempt to violate the security of the Website, their Account, or any other account on the Website, or hack into the Website, their Account or other accounts of the Website which the Client is not authorised to use or have been suspended from using;
- copy, modify or distribute rights or content owned by Buildxact, other Account holders, Clients or other users of the Website including any copyrights and trademarks;
- harvest or otherwise collect information from Buildxact, other Account holders, Clients or other users of the Website, including email addresses, without their consent;
- use the Buildxact Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions; or
- copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Buildxact Services or any part or element thereof, or attempt to extract the source code thereof.
6.2 Certain Uses Require Supplier Consent
The Client or any User may not, without Buildxact’s prior express written consent:
- sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the Buildxact Services available in whole or in part to any third persons, unless such third person is another authorised User of the same Client or Enterprise Customer;
- use the Buildxact Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
- use the Buildxact Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by Buildxact;
7. Defects and Rectifications
The Client agrees to use best endeavours to report any defect to Buildxact as soon as reasonably practicable after becoming aware of any Defect in respect of the Buildxact Services.
Buildxact agrees to evaluate Defects based on their impact to Buildxact’s customer base and will prioritise the rectification of such Defects at Buildxact’s sole discretion. Buildxact agrees to use reasonable endeavours to rectify any Defect that it considers a priority within a reasonable period of time after notification being made.
For the avoidance of doubt, the Client acknowledges and agrees that Buildxact is not required to make the Buildxact Services function in a way that may be preferred by the Client, but which is not a Defect of a function included in the Buildxact Services and that is used satisfactorily by other users of the Buildxact Services.
8.Privacy
Buildxact takes the privacy of its Clients and Users very seriously.
Buildxact does not provide Personal Information of a Client or User to any third parties without explicit consent, unless required to by law, and in such circumstances Buildxact will act in accordance with clause 4.5. Buildxact may use the Client’s information only as described in the Privacy Policy. Clients and Users can access and modify information provided by signing into the Account. If Buildxact provides a Client or User with information about another Client or User, the Client or User agrees that it will use the information only for the purposes it is provided. Clients and Users may not disclose, use or distribute another Client’s or User’s information to a third party for purposes unrelated to the Website or the Account.
Buildxact’s Privacy Policy (located on the relevant Website) is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs Buildxact’s collection, use, and disclosure of Client’s or User’s Personal Information.
9. Intellectual Property
9.1 Reservation of Rights and Ownership
- Other than in respect of Client Data or other content created by a Client or Users on an Account, reproduction of part or all of the contents in any form of the Buildxact Services or an Account page is prohibited and no content may not be recopied and shared with a third party.
- The materials displayed on the Website and an Account (other than in respect of a Client’s own content or Client Data), including without limitation all information, text, graphics, names, logos, trademarks, design, software and advertisements (“Intellectual Property”) are protected by copyright, trade mark and other intellectual property laws unless expressly indicated otherwise on the Website or an Account. Clients and User’s may access and display this Intellectual Property contained on the Website or an Account page on a computer or a monitor and print out for personal or internal business use only. All other use, copying or reproduction (including reproduction on any other website) of any part of the Buildxact Services or an Account (other than in respect of Client Data) is prohibited unless expressly stated otherwise. Clients and Users must not use the Buildxact Services and an Account in any manner or for any purpose which is unlawful, or which violates the rights of any owner of any content or these Terms.
- Nothing contained in these Terms, the Buildxact Services or an Account constitutes a transfer or license of any such Intellectual Property rights to the Client.
Buildxact reserves all reasonable rights to Intellectual Property not expressly granted to the Client in these Terms of Service.
9.2 Use of Intellectual Property
The Client acknowledges and agrees that Buildxact may use the Client’s intellectual property in the marketing and promotion of these Terms of Service on the terms and conditions set out in these Terms of Service provided that:
such use is limited to use by Buildxact for the purposes of these Terms of Service including, in relation to the provision of the Buildxact Services;
such use is in compliance with the Client’s logo and branding guidelines as provided to Buildxact from time to time;
Buildxact shall not modify, or adapt the Client’s name, logo or trademarks in any way without prior written consent (other than by way of reduction or enlargement in size in compliance with the Client or Enterprise Customer’s logo and branding guidelines);
Buildxact will provide the Client with samples of all advertising, literature, brochures, and other material using the Client’s intellectual property at least 10 business days prior to actual use or publication. The Client will review such samples and give approval or rejection (not to be unreasonably withheld) within 5 business days of receipt; and
Buildxact will not distribute any advertising, literature, brochures or other material using the Client’s intellectual property without the Client’s prior written approval.
10. Representations and Warranties
The Client and each User represents and warrants to Buildxact that:
- it has full power and authority to accept and perform its obligations under these Terms of Service (including, for the avoidance of doubt, where it is a person entering into these Terms of Service on behalf of a corporation);
- if it is a corporation, it is validly incorporated, organised and subsisting in accordance with the laws of its place of incorporation;
- if it is a corporation, has taken all necessary action to authorise the acceptance, delivery and performance of these Terms of Service in accordance with its terms;
- if it is accepting these Terms of Service on behalf of a party under a power of attorney, it has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to enter into these Terms of Service under that power;
- it will comply, at all times, with all applicable laws in the performance of its obligations under these Terms of Service and use, promotion and or marketing (as applicable to the Subscription Type) of the Buildxact Services; and
- it has full right, title, interest and ownership in any and all Client Data or content uploaded to an Account. Further, any Client Data and content uploaded to an Account will not infringe upon the intellectual property rights of any third party and the Client and its Users (as applicable) have not received any notice regarding any alleged infringement thereof.
Buildxact represents and warrants that it has full title and ownership to the Buildxact Services and has the authority to grant the License hereunder. To the best of the Buildxact’s knowledge the Buildxact Services do not infringe upon the intellectual property rights of any third party and that it has not received any notice regarding any alleged infringement thereof.
11. Indemnity
The Client agrees to indemnify Buildxact, its related bodies corporate (as defined in the Corporations Act) and affiliates, and their respective directors, officers, employees and agents, from any Claims, causes of action, damages, liabilities, losses (including direct loss, damage or loss) arising in contract, tort (including negligence, statute or otherwise), costs, debts and expenses (including reasonable legal fees and costs) arising from or as a result of, or relating to:
- the Client’s use of the Website, Buildxact Services or the Client’s Account, or any information the Client provides to Buildxact, including a breach of the Terms, or any of the representations and warranties given by the Client under the Terms, or any violation of applicable law or court order; and
- any Claim or demand, including legal fees and costs, made against Buildxact by any third party due to or arising out of the Client’s breach of the Terms, or the Client’s infringement of any law or the rights of a third party in the course of using the Website, Buildxact Services or the Client’s Account,
and specifically excluding an indemnity for indirect loss or consequential loss.
12. Limitation of Liability
12.1 No Advice
No part of the Website or any information contained on an Account is intended to constitute advice by Buildxact. We are not liable or responsible for any reliance placed on the Website or the Account, and the contents of the Website or the Account, by the Client or anyone who the Client may inform of its contents.
12.2 Warranty Disclaimer
To the extent permitted by law, the Buildxact Services are provided on an “AS IS” basis. Buildxact, other than those identified in clause 10, makes no warranties, representations and guarantees (whether express or implied) in respect of the Website and Buildxact Services, including without limit all warranties, representations and guarantees related to merchantability or fitness for purpose, accuracy, completeness, reliability, usability, security, quality, performance, availability, or timeliness of the Website or the Buildxact Services, their content or the content of any website linked to or from the Website or an Account. Where the Client takes action, or omits to act, make any decision, or enter into any agreement with any other person, as a result of the use of the Website and Account, the Client acknowledges that they do so having independently made all such investigations and taken all such professional advice as may be necessary to enable them to make an informed and independent decision.
12.3 Internet Performance Disclaimer
Buildxact does not and cannot control the flow of data via the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt the internet. Buildxact will use commercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur. Accordingly, Buildxact disclaims any liability resulting from or relating to such events.
12.4 Exclusion of Incidental, Consequential and Certain Other Damages
Buildxact, its related bodies corporate and affiliates and their officers, employees, agents and contractors are, to the maximum extent permitted by law, not liable to the Client or any other person for any losses, expenses, Claims or costs (including without limitation for any loss of profits, revenue or data, incidental, consequential, exemplary, special, or indirect damages) arising under or in connection with the Terms, the Website, the Buildxact Services or the Client’s Account, any information downloaded from the Website the Buildxact Services or the Client’s Account, the Client’s use of or access to (or inability to use or access) the Website, the Buildxact Services or the Client’s Account, or any third party or other Client’s or User’s use of or access to the Website, the Buildxact Services or the Client’s Account.
12.5 Limitation of Liability
To the extent that liability has not been or may not be excluded under the Terms, and to the extent permitted by law, our total liability to the Client under or in connection with the Terms, the Website, the Buildxact Services or the Client’s Account and any information downloaded from the Website, the Buildxact Services or the Client’s Account, or the Client’s use of or access to (or inability to use or access) the Website, the Buildxact Services or the Client’s Account, or any third party or other Client or User’s use of or access to this Website, the Buildxact Services or the Client’s Account, will not exceed the Fee paid for the Buildxact Services under the applicable Subscription Plan applying to the Account upon registration.
13. Termination
13.1 Termination for Convenience
A Subscription Plan may be terminated for convenience as specified below:
- by the Client by clicking the cancellation link on the Website, when logged in to the Account or by other means specified by Buildxact. Note as set out in clause 13.4 No Refunds and Clause 14 Subscription Plans and Termination Terms the Clients subscription will continue until the end of current Subscription Plan determined by the Client’s contract (month by month contract or annual contract);
- by Buildxact providing at least 30 days advance written notice to the Client; or
- immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors. For the avoidance of any doubt, termination shall be effective as per the termination by the Client under clause 13.1(a) and is subject to the termination period for each relevant plan as specified in clause 14.
13.2 Termination for Default
A Subscription Plan may be terminated for default or access to an Account limited or discontinued as follows:
- by either party in case of a material breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party;
- immediately by either party if the other party breaches its obligations, as applicable under clause 9 (Intellectual Property Rights) and clause 11 (Indemnity) of these Terms; or
- by Buildxact if required to give effect to clauses 2.1(b), 2.1(c), 2.1(d) or 13.6.
13.3 Effect of Termination
Upon termination of the Subscription Plan,
- Buildxact shall deactivate the Account, as soon as reasonably practicable after the time outlined in clause 14 of these Terms. If the Client has specifically requested for an earlier deactivation of the Account, Buildxact shall fulfil such request within 1 month of its receipt of such request.
- Client must:
1. stop using and prevent the further usage of the Buildxact Services beyond the time outlined in clause 14, including, without limitation, the Platform;
2. pay any amounts owed to Buildxact under these Terms; and
3. discharge any liability incurred by the Client before under these Terms prior to their termination; and - c. The following provisions shall survive the termination of these Terms: Clauses 1, 4.4, 6, 8, 9, 10, 11, 12, 14, 15, 16 and 17.
No Data is available to the Client after Termination and Buildxact makes no warranty as to the availability or capability to transfer, use or export any Data after Termination, or that any previously saved Data will be available for use in the resumption of Buildxact Services after Termination.
13.4 No Refunds
Except where these Terms of Service are terminated as a result of a material breach by Buildxact or as required by law, the Client is not entitled to any refund of all or part of the Fees paid by the Client. On termination and in all other circumstances Buildxact is entitled to retain all Fees and amount paid by the Client, whether in advance under an Annual Subscription Contract Paid Annually (clause 14.3) or other subscription as outlined in clause 14. For the avoidance of doubt, Buildxact is entitled to any remaining monthly payments remaining under the Annual Subscription Paid Monthly (clause 14.2).
13.5 Remedies
If Buildxact terminates these Terms as a result of an uncured breach by a Client or User, Buildxact is entitled to exercise any of Buildxact’s legal rights against the Client in accordance with these Terms of Service or take reasonable action to remedy the uncured breach. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the Buildxact Services.
13.5 Third Party Harm
If Buildxact has reasonable grounds to believe that the Client’s or User’s use of the Buildxact Services, including the Account may harm any third persons, Buildxact has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
14. Subscription Plans and Termination Terms
Buildxact offers the following paid subscriptions which the Client may select upon signing up and together are the Subscriptions Plans:
- Month to Month contracts paid monthly (see clause 14.1);
- Annual contracts paid by monthly payments (see clause 14.2); and
- Annual contracts paid by annual payments (see clause 14.3).
14.1 For Month to Month Contracts
The following provisions under clause 14.1 shall apply when the Client selects a Month to Month Contract.
a. Subscription terms
- The Client’s Subscription Plan begins as soon as the initial payment is processed.
- The subscription is billed and paid monthly in advance.
- The initial subscription contract term is 1 month and automatically renews monthly without notice for further periods of 1 month unless the subscription is terminated in accordance with clause 13 (Termination) prior to a monthly renewal date.
- The Client authorizes Buildxact to store the Client’s payment method(s) in accordance with the Privacy Policy through Stripe who are certified to PCI Service Provider Level 1 standards (Stripe’s Privacy Policy https://stripe.com/au/privacy), and to automatically charge the Client’s payment method every month at the then-current rate for the subscription until the subscription expires.
b. Termination terms for Month to Month Contracts
- For the avoidance of doubt, it is the Client’s responsibility to determine Buildxact’s suitability for use before the Client subscribes.
- Should the Client cancel after any applicable Free Trial has ended the monthly payment is non-refundable and Buildxact’s Services will continue until the end of that monthly billing period.
- (Example: if the Client subscribes on 1 July 2023, the monthly subscription contract would automatically renew on the 1st day of each subsequent month. If the Client cancels their subscription on 10 Jan 2025, the service will continue until 31st January 2025 when the subscription expires).
14.2 For Annual Contracts Paid Monthly
The following provisions under clause 14.2 shall apply when the Client selects an Annual Contract Paid Monthly subscription plan.
a. Subscription terms
The Client’s Subscription Plan begins as soon as the initial payment is processed.
The subscription is billed and paid monthly in advance.
The initial subscription contract term is for 12 months and automatically renews annually for further periods of 12 months unless the subscription is terminated in accordance with clause 13 (Termination) prior to an annual renewal date. Clients will be notified prior to renewal via email to the billing email address they have provided.
The Client authorizes Buildxact to store the Client’s payment method(s) in accordance with the Privacy Policy through Stripe who are certified to PCI Service Provider Level 1 standards (Stripe’s Privacy Policy https://stripe.com/au/privacy), and to automatically charge the Client’s payment method every month at the then-current rate for the subscription until the subscription expires.
b. Termination terms
- For the avoidance of doubt, it is the Client’s responsibility to determine Buildxact’s suitability for use before the Client subscribes.
- Should the Client cancel after any applicable Free Trial has ended the subscription and Buildxact’s Services shall continue and monthly billing shall continue to be payable until the end of the current annual contract at which point the subscription shall expire and monthly billing shall cease.
- Monthly payments are non-refundable and Buildxact’s Services will continue until the end of the final annual contract period.
- (Example if the Client subscribes on 1 July 2023, the annual contract with monthly payment subscription would automatically renew on 1 July 2024. If the Client cancels their subscription on 10 Jan 2025, the service will continue until 30 June 2025 when the subscription expires. Monthly billing would continue to be payable up to and including the last monthly bill issued on 1 June 2025).
14.3 For Annual Contracts Paid Annually
The following provisions under clause 14.3 shall apply when the Client selects an Annual Contract Paid Annually subscription plan.
a. Subscription terms
- The Client’s Subscription Plan begins as soon as the initial payment is processed.
- The subscription is billed and paid annually in advance.
- The subscription automatically renews annually unless the subscription is terminated in accordance with clause 13 (Termination) prior to an annual renewal date. Clients will be notified prior to renewal via email to the billing email address they have provided.
- The Client authorizes Buildxact to store the Client’s payment method(s) in accordance with the Privacy Policy through Stripe who are certified to PCI Service Provider Level 1 standards (Stripe’s Privacy Policy https://stripe.com/au/privacy), and to automatically charge the Client’s payment method at each annual renewal at the then-current rate for the subscription until the subscription expires.
b. Termination terms
- For the avoidance of doubt, it is the Client’s responsibility to determine Buildxact’s suitability for use before the Client subscribes.
- Should the Client cancel after any applicable Free Trial has ended the annual payment is non-refundable and Buildxact’s Services will continue until the end of that annual billing period.
- (Example if the Client subscribes on 1 July 2023, the annual subscription contract would automatically renew on 1 July 2024. If the Client cancels their subscription on 10 Jan 2025, the service will continue until 30 June 2025 when the subscription expires).
15. Modifications
15.1 Modifications to Fees
Buildxact reserves the right, at its sole discretion, to change or modify, the Fees applicable to subscriptions at any time by providing 4 weeks notice via email to the contact email address provided by the client. Any changes to Fees shall be applied on the later of 4 weeks from notification or the next subscription contract renewal occurring 28 days after issue of the email notification.
15.2 Modifications to Terms of Service
Buildxact reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Website, Buildxact Platform or the Buildxact Services.
Such amended Terms will automatically be effective upon the earlier of (i) your acceptance of the amended Terms, or (ii) 4 weeks from posting of such modified Terms on or through the Website, the Buildxact Platform, the Buildxact Services or via email to the contact email provided by the Client. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Buildxact will be governed by the Terms in effect at the time such dispute arose.
As applicable, Clients may be notified of such modifications when logging in to the Account.
15.3 Modifications to Services
Buildxact reserves the right to modify the Buildxact Services or any part or element thereof from time to time without notice, including, without limitation:
- rebranding the Buildxact Services at its sole discretion;
- ceasing providing or discontinuing the development any particular Buildxact Service or part or element of the Platform temporarily or permanently in any jurisdiction;
- taking such action as is necessary to preserve Buildxact’s rights upon any use of the Buildxact Services that may be reasonably interpreted as violation of Buildxact’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity; and
- taking such action as is necessary to protect the Buildxact Services, Buildxact and Clients from any exposure arising out of Data breaches, intellectual property infringements or other destructive activities or illegal activity.
The Client’s continued use of the Buildxact Services, or any part or element thereof, after the effective date of each or any Modification to Services shall indicate its consent to the Modification to Services and to all Terms then applying. Buildxact shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Buildxact Services, or any part or element thereof. Buildxact may also provide a notification to the Client and/or User signing on to the Account of the Modification to Services that have or will occur.
16. Dispute Resolution
16.1 Dispute resolution procedure
If a party believes that there is a dispute regarding these Terms of Service or the Subscription Services, it must not commence court proceedings (unless urgent interlocutory relief) without first complying with the following dispute resolution procedure:
a. the party must give notice in writing to the party in dispute (together, the Disputing Parties) specifying:
- the nature of the dispute;
- the outcome required by the party; and
- the action the party believes will settle the dispute,
(“Dispute Notice”)
b. Upon receipt of a Dispute Notice, the Disputing Parties shall use their best efforts and endeavors to resolve the dispute by mutual negotiation.
If the dispute resolution procedure does not settle the dispute, then the process will proceed to mediation under clause 16.2
16.2 Mediation
1. If the Disputing Parties are unable to resolve a dispute within twenty (20) Business Days (or within a longer period agreement in writing by them) of receipt of a Dispute Notice, either party may serve a notice on the other requiring the Disputing Parties to refer the dispute to a mediator and to participate in the mediation (Mediation Notice). If the Disputing Parties are unable to determine within fifteen (15) Business Days of receipt of a Mediation Notice referred to in this clause:
i. the procedures to be adopted in the mediation;
ii. the timetable for all the steps in those procedures; and
iii. the identity and fees of the mediator, the President of the Law Society of Victoria or their representative will appoint the mediator and determine all procedural matters in relation to the mediation.
2. The Disputing Parties must attend the mediation and make a determined and genuine effort to resolve the dispute.
16.3 Costs
The Disputing Parties must bear its own costs of complying with this clause and the Disputing Parties must bear equally the costs of any mediator engaged.
16.4 Court Action
Nothing in this clause prevents a party taking any court action where the proceedings are to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute to preserve property or rights or to avoid any losses, costs, charges, claims, liabilities or expenses which are not compensable in damages.
Any other court proceedings not mentioned in clause 16.4 above shall only occur after clause 16.1 (Dispute resolution procedure) and clause 16.2 (Mediation) has occurred.
17. General Provisions
17.1 Entire Agreement
These Terms of Service, including the Rate Sheet, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
17.2 Relationship Between Buildxact and the Client
The Terms do not create a relationship of employment, trust, agency or partnership between Buildxact and the Client.
17.3 Force Majeure and viruses
If a party is prevented, hindered or delayed from performing its obligations under these terms and conditions by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond Buildxact’s reasonable control (a “Force Majeure Event”), then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will, to the extent reasonably possible, immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
Buildxact is not liable for and does not represent or warrant that the Buildxact Services, or the Client’s Account and any other information or material contained in, downloaded or accessible from the Website or the Client’s Account, is free from computer viruses or any other defect or error which may affect the Client’s software or systems. The Client acknowledges that is their responsibility to protect their software and systems by installing any required security systems.
17.4 Assignment
The Client may not assign or otherwise deal with any of its rights or obligations under these Terms of Service without the prior written consent of Buildxact. Buildxact may assign, novate or otherwise deal with all or part its rights under these Terms of Service at any time and from time to time, which will be effective immediately upon Buildxact notifying its Clients of the assignment or novation.
17.5 Partial Unenforceability
In the event that any provision of these Terms of Service is declared by any judicial or other competent authority to be void, voidable, illegal, unfair under the Competition and Consumer Act 2001 (Cth), Schedule 2 (Australian Consumer Law) or otherwise unenforceable, then such provision shall be severed from these Terms of Service. In all other respects, the remaining provisions of the Terms of Service shall remain in full force and effect.
17.6 Power of Attorney
Each person who agrees to these Terms of Service on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to agree to the Terms of Service under that power.
17.7 No Limitation
Any rights and remedies that a person may have under these Terms of Service are in addition to and do not replace or limit any other rights or remedies that the person may have.
17.8 Waiver
The failure by a party to enforce at any time or for any period any one or more of the terms and conditions of these Terms of Service shall not be a waiver of those rights nor of the right at any time subsequent to enforce all of the terms and conditions of these Terms of Service. A waiver of any power or right under these Terms of Service:
- must be in writing signed by the party entitled to the benefit of that power or right; and
- is effective only to the extent set out in that written waiver.
17.9 Survival
The obligations under these Terms of Service are of indefinite duration and the following provisions shall survive termination or cessation of these Terms of Service (however occurring): Clauses 1, 4.4, 6, 8, 9, 10, 11, 12, 15, 16 and this clause 17.
17.10 Joint and Several
A warranty representation or obligation which binds or benefits two or more persons under these Terms of Service binds or benefits those persons jointly and separately.
17.11 Costs
Each party will bear its own costs with respect to the negotiation and preparation of this Terms of Service, and the implementation of the transactions contemplated by this Terms of Service.
17.12 Notices
Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon any of the following occurring:
- a personal delivery;
- the second business day after mailing; or
- except for notices of termination or an indemnifiable claim (“Legal Notices”),
which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to the Client will be addressed to the relevant billing contact designated by the Client. All other notices to the Client will be addressed to the relevant Buildxact Services administrator designated by the Client
17.13 Governing Law
These Terms of Service will be construed and interpreted in accordance with the laws of the state of Victoria, Australia and each party submits to the nonexclusive jurisdiction of courts of that jurisdiction.
17.14 Copyright/Trademark
Buildxact is a registered trademark of Buildxact. Other names appearing on the Website may be trademarks of their respective owners. The Client agrees that they will not use the Website to infringe Buildxact’s intellectual property rights or the intellectual property rights of others. The Client may not remove, deface, overprint or otherwise alter any notice of copyright, trademark, logo or other notice of ownership from any originals or copies of the Buildxact software, third party software, or any products or content the Client accesses on or through the Website.
17.15 Google API Services User Data Policy
Buildxact’s use of information received from Google API’s will adhere to Google API Services User Data Policy (https://developers.google.com/terms/api-services-user-data-policy#additional_requirements_for_specific_api_scopes), including the Limited Use requirements.
Last update: September 06, 2023
