Terms and Conditions

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” as more specifically defined below). 

The Buildxact Services are offered to you, the Client (as defined below), subject to the Client’s acceptance of:  

1. the Terms of Service;  

1. all other operating rules, policies (excluding our Privacy Policy as defined below), 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; and 

1. our Privacy Policy,  

(collectively, (a) and (b) above are 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, and references to the “Client” in these Terms shall be taken to mean both the individual and 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 AUTHORIZED REPRESENTATIVE OF ANOTHER PERSON (E.G. 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 set out in Section 15 (Modifications). 

Without limiting Sections 13 (Termination) and 15.3 (Modifications to Services), Buildxact may, at its sole discretion, elect to limit, suspend or terminate access to, or use of the Buildxact Services to anyone who violates these Terms (including without limitation the Acceptable Use Policy), to the extent and for the duration necessary to address the relevant violation and prevent or mitigate its ongoing effect. Buildxact will take reasonable steps to reinstate such access or use promptly after the violation has been remedied by the Client. 

The Australian Consumer Law 

Australian consumers and businesses have certain rights under the Australian Consumer Law. These Terms are not intended to affect any rights the Client may have as an Australian consumer under the Australian Consumer Law to the extent those rights cannot be excluded, restricted or modified by agreement. 

1. Definitions

Account : the primary means for accessing and using the Buildxact Services; 

Add-on : means an optional additional feature that may be switched on by the Client for an additional Fee per Add-on, the availability of which varies depending on the relevant Subscription Plan as further described in Section 14.3;  

Annual Contract : means a Subscription Plan at the annual frequency as described in Section 14.2; 

App or Buildxact App : means the Buildxact mobile applications available for download from applicable online app stores; 

Approved Purpose : means the use of Data for, and the  Client’s receipt and use of, the Buildxact Services:  

1. in Client’s own business (or, for Enterprise Customers, in the Enterprise Customer’s own business and its Clients’ businesses in accordance with the Enterprise Customer’s relevant arrangement with Buildxact) and not for resale, supply (other than Enterprise Customers supplying to their own Clients in accordance with the Enterprise Customer’s relevant agreement with Buildxact), provision as a bureau service, or provision on a time-sharing basis to any third party; or  

1. as required by law; 

Australian Consumer Law : means Schedule 2 to the Competition and Consumer Act 2010 (Cth); 

Authorization : the set of rights and privileges on the Buildxact Platform 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 Data : means any Data that is not Client Data and includes without limitation the system logs, System performance information, analytics and any data or information about a User’s use of and interaction with their Account and the Buildxact Services; 

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, App and cloud-based apps, community hub and marketplace (as and when made available by Buildxact), Services, System, Content, Platform, 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; 

Business Day : means a day on which banks are open for general bank business in Victoria, excluding Saturdays, Sundays and public holidays; 

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, and may be a builder, supplier, or customer of a builder or supplier, or any other type of user for which features of the Buildxact Services have been developed by or on behalf of Buildxact; 

Client Data : means the information, materials, logos, documents, qualifications and other data inputted by the Client or its Users into the Buildxact Services or stored by the Buildxact Services or generated by the Buildxact Services as a result of the Client’s or its Users’ use of the Buildxact Services (including the specific Data categories of Users, Customers, Sub Contractors, Organizations, Suppliers, Tasks, Descriptions, Templates, Estimates, Takeoffs, and Jobs associated with the Client in the Buildxact Services), but excluding the system logs, System performance information, analytics and any data or information about a User’s use of and interaction with their Account and the Buildxact Services; 

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; 

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; 

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; 

Corporations Act : means the Corporations Act 2001 (Cth); 

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), and includes all Client Data; 

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; 

Feedback : means any idea, suggestion, recommendation or request by the Client or any of its Users, whether made verbally, in writing, directly or indirectly, in connection with the 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 Section 17.3; 

Free Add-on : if applicable, means 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 that Add-on in connection with a Subscription Plan but without paying a Fee for that Add-on for the duration of the trial (and which is not available at the same time as the Client is using a Free 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; 

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 Platform and Buildxact Services in accordance with a Subscription Type but without paying a Fee for the duration of the trial; 

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; 

Intellectual Property Rights : means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including: (i) patents, inventions, designs, copyright, trademarks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder’s rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;; (ii) any application or right to apply for registration of any of these rights; (iii) any registration of any of those rights or any registration of any application referred to in paragraph (iii); and (iv) all renewals, divisions and extensions of these rights. 

License : means the license granted in Section 2.1; 

Month to Month Contract : means a Subscription Plan at the monthly frequency as described in Section 14.1(a); 

Paying Client : a Client that is being charged a Fee for use of the Buildxact Services; 

Personal Information or Personal Data : means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal data, personally identifiable information, personal information or sensitive information in the applicable Privacy Laws; 

Platform or Buildxact Platform : means the software platform through which the Buildxact Services are provided to Clients and which may be made available by any means determined by Buildxact from time to time, including through the Buildxact App or Buildxact Website, and to avoid doubt includes the Buildxact Website and Buildxact App; 

Privacy Law : means any applicable law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) or other applicable legislation from time to time in force in respect of Buildxact or the Client which relates to or affects privacy rights or Personal Information; 

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 App or provided by Buildxact to its Clients, the content and pricing of which is subject to change and may be varied by Buildxact at any time and from time to time in accordance with Section 15.1; 

Related Body Corporate : has the meaning given in the Corporations Act; 

Statutory Rights : has the meaning set out in Section 12.6; 

Subscription Plan : means a paid subscription as described under Section 14; 

Subscription Types : the type of subscription for Buildxact Services that a Client subscribes to as set out in Section 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, platforms, databases, Data, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith; 

Terms : has the meaning given at the beginning of these Terms of Service; 

Terms of Service : means these terms and conditions as it is updated from time to time; 

Third Party Applications : means any third party software or services identified by Buildxact that may be linked (at the Client’s option) to the Buildxact Platform in order to interface or operate with the Buildxact Services, such as third party accounting or invoicing services;  

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 any of the following Uniform Resource Locators (URLs): 

• Buildxact AU; 

• Buildxact US; 

• Buildxact CA; 

• Buildxact NZ; 

• Buildxact UK, or 

any other site that Buildxact may use or provide its Clients in respect of the Buildxact Services. 

2. The Buildxact Services

2.1 License to Use Buildxact Services 

For the duration of the applicable Subscription Plan or Free Trial Subscription, Educational Trial Subscription, or Free Subscription, as applicable, 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: 

1. collect, store and organise Client 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;
2. modify and delete Client Data;
3. configure the standard features of the Buildxact Services available on the particular Subscription Type and Subscription Plan applicable to the Client;
4. receive reasonable help and guidance from Buildxact regarding the use of the Buildxact Services; and
5. access and use the Buildxact Platform and receive the Buildxact Services solely in accordance with these Terms.

2.2 Third Party Applications 

The Client acknowledges and agrees that the Buildxact Services may include Third Party Applications that may, if configured in the Buildxact Services by the Client, interface or interoperate with the Buildxact Services. If so configured by the Client, the Client acknowledges and agrees that its Client Data will be available to the provider of the applicable Third Party Application and its use by the provider of that Third Party Application will be subject to the terms applicable as between the Client and that third party, and will be subject to that third party’s privacy policy and other terms. Buildxact does not control and is not responsible or liable for the acts or omissions of those third parties in respect of any Third Party Application the Client chooses to link to the Client’s Buildxact Services or any Client Data provided or made available to those third parties as a result. 

To the extent that the Client chooses to configure and use such Third Party Applications with its Buildxact Services, the Client is responsible for: 

1. the purchase of; 

1. meeting the requirements related to; and 

1. complying with the licensing obligations related to, 

the applicable Third Party Application. 

The Client agrees that the benefit of the Third Party Application’s interface, or interoperation with, the Buildxact Services, is subject to the Client’s compliance with this Section 2.2. 

2.3 Technical Support 

Buildxact shall provide reasonable technical support to Client and its authorized Users 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: 

1. built-in live-chat application on the Website, 

1. e-mail: [email protected] 

2.4 Premium Support 

Clients who have subscribed to the Master Subscription Plan (as described in Section 14) will receive Premium Support included as part of that Subscription Plan.  

“Premium Support” means that the Client’s support requests submitted via the contact details set out in Section 2.3 will be placed at the front of the support queue, such that those support requests will be dealt with in priority to other support requests of equivalent impact submitted by clients that do not have Premium Support from Buildxact. 

2.5 Buildxact Apps 

This Section 2.5 applies to the Buildxact Apps only. 

The Client acknowledges and agrees that by using the Buildxact App, while the Client can download the Buildxact App in the Google Play Store Market or Apple App Store free of charge, the Client may incur charges from its wireless or mobile carrier in accordance with the Client’s agreements with them, and that any such charges will be the Client’s sole responsibility. 

Buildxact does not promise the Client that the Client will have uninterrupted or error-free access to and use of the Buildxact Apps or Buildxact Services. 

These Terms are an End User Licence Agreement (or “EULA”) for the purposes of the terms and conditions of any store where the Client has purchased or downloaded the Buildxact App. 

If the Client has obtained the Buildxact App via Apple’s App Store, the remainder of this Section 2.5 applies. The Client acknowledges and agrees that: 

1. these Terms are concluded between the Client and Buildxact, and not Apple, Inc. (“Apple”);  

1. Buildxact, and not Apple, is solely responsible for the Buildxact App;  

1. the License granted to the Client under Section 2.1 is subject to Apple’s Usage Rules set out in the App Store Terms and Conditions set out at http://www.apple.com/legal/internet-services/itunes/au/terms.html#APPS; 

1. Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Buildxact App;  

1. in the event of any failure of the Buildxact App to conform to any applicable warranty, the Client may notify Apple and Apple will refund the purchase price the Client paid for the Buildxact App;  

1. to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Buildxact App;  

1. Apple is not responsible for any claims that the Client has arising out of the Client’s use of the Buildxact App;  

1. Apple will have no responsibility whatsoever for the investigation, defence, settlement or discharge of any third-party claim that the Buildxact App infringes that third party’s Intellectual Property Rights; and  

1. Apple and its subsidiaries are third party beneficiaries of these Terms and, upon the Client’s acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against the Client as a third party beneficiary. 

3. Using the Buildxact Services

3.1 Subscription Types 

Buildxact provides different Subscription Types to support the needs of different Clients and organisations in accessing Buildxact Services. 

Subscription Types are described in greater detail on the Website and include: 

1. Free Trial subscription – when applicable enables a Client to try the Buildxact Services for a limited period of time before paying a subscription Fee; 

1. Paid subscription – (covers a number of different Subscription Plans); 

1. Educational Trial subscription – offered by authorized training bodies to their students; and 

1. 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. 

The Buildxact Services provided by Buildxact are related to the Subscription Type and Subscription Plan a Client subscribes to. 

Add-ons may be available for an additional Fee depending on the Subscription Plan a Client subscribes to, as further described in Section 14.3. 

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 and to the Privacy Policy. 

3.2.1 CLIENTS 

Each Client may have only one Account and if desired multiple Users always in accordance with the Subscription Type and Subscription Plan. If two or more persons use or access an Account on behalf of a Client, the Client must designate such persons as individual 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 

Buildxact shall provide Client with, or Client will choose upon registration, a username and password (“Login Credentials”) to be used to log in to its Account. Login Credentials are for single User use only and must not be used by multiple persons. If Client has designated several Users, each User must create or be provided with separate Login Credentials. Client, and each User (with respect to Client’s or that User’s Login Credentials), are responsible for keeping confidential all Login Credentials associated with an Account. Client must promptly notify Buildxact of any known or reasonably suspected disclosure, loss or unauthorized use of any Login Credentials. For the avoidance of doubt, each User is not permitted to share their Login Credentials with another User or Client to log on to the Buildxact Platform or to use the Buildxact Services either at the same time, or at a different time, on either the same device, or alternate devices. 

The Client will ensure that it authorizes individuals to be Users only to the extent such Users require access to the Buildxact Services to perform their duties. If any User ceases to be authorized by the Client to access and use the Buildxact Services for any reason (including termination of employment of the relevant User), the Client will promptly take steps to ensure that the User ceases to access and use the Buildxact Services. The Client will be responsible for all actions taken using its Users’ Login Credentials, except to the extent caused by Buildxact’s gross negligence or wilful misconduct. 

3.4 Fees 

The use of an Account is subject to payment of the applicable Fee. Upon sign-up for an Account, the Client must select a Subscription Type and Subscription Plan. Different rates apply to different Subscription Types and Subscription Plans. The applicable Fee is charged in advance on monthly or annual payment intervals (as applicable), unless agreed otherwise between parties. 

Except as expressly set out in these Terms, and subject to any rights the Client may have under the Australian Consumer Law or other Statutory Rights, 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 for convenience under Sections 13.1(a) or 13.1(c) during an ongoing payment interval. Please refer to Section 13 (Termination) and Section 14 (Subscription Plans, Add-ons, Downgrades and Specific Termination Terms) for detail on termination and how each Subscription Plan is terminated. Downgrades of Subscription Plans or Add-ons are handled in accordance with Section 14.4. 

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 Client Data to the Platform, any processing of such Client 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 Organisations) whether posted and/or uploaded by Client or made available on the Buildxact Services by Buildxact. 

By uploading Client Data to the Platform, Client authorizes Buildxact to process the Client Data and generate other data and information from Client Data in order to provide the Buildxact Services and exercise its rights in accordance with these Terms, as further described in Section 9.2. 

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. 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 or use 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 unless otherwise notified to the Client. 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 the consequences of using, disclosing, storing or transmitting the Client Data, and for ensuring that: 

1. 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 organizations or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful; and 

1. the Client and all of the Users associated with the Account have and have procured the necessary rights, and any consents required by law, 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 process, use and disclose this Client Data in accordance with and subject to these Terms and the Privacy Policy and without breaching any laws. 

The Client acknowledges and agrees that the operation of the Buildxact Services is reliant on the accuracy of the Client Data, and the provision of inaccurate or incomplete Client Data by the Client may affect the use, output and operation of the Buildxact Services.  

Without qualifying or limiting the Client’s obligations under these Terms, the Client:  

1. i. must take all reasonable steps to mitigate the risk inherent in the use of the Buildxact Services (such as loss of Client Data);
2. is solely responsible for:

(1) performing and maintaining regular backups of all Client Data; and 

(2) maintaining and implementing a business continuity plan relevant to its use of the Buildxact Services in accordance with standard industry practice. 

4.2 No Guarantee of Accuracy 

Buildxact does not guarantee any accuracy with respect to any information contained in any Data or processed or generated by the Buildxact Services, and strongly recommends that the Client verifies and thinks carefully about what is generated by, transmitted, submitted or posted to or through the Buildxact Services before relying on that Data in any way. 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 Client or the person from whom such Client Data originated or, if generated by the Buildxact Services, the User using the Buildxact Services to generate that Data. This means that, subject to any rights the Client may have under the Australian Consumer Law or other Statutory Rights, the Client, and not Buildxact, is entirely responsible for all Data that is uploaded, entered, transmitted, generated by, or otherwise made available through the Buildxact Services (including for the full and final verification of all costs of materials, measurements, takeoffs, estimates and quotes generated using the Buildxact Services), as well as for any reasonable actions taken by Buildxact, Client, or other Clients or Users as a result of or in reliance upon such Data, except to the extent caused by Buildxact’s gross negligence or wilful misconduct. 

Without limiting the foregoing, some of the Buildxact Services use machine learning or Artificial Intelligence (“AI”) features in the selection, analysis, calculation and presentation of output for the Client. Where this is the case, the existence of the AI features is notified in the relevant product descriptions. While Buildxact uses reasonable efforts to design the Buildxact Services to consider all relevant material and to accurately present its calculations and estimates, Buildxact cannot guarantee that the Buildxact Services or their output are free from errors or inaccuracies, and the Client must not rely solely on their output and must ensure a human checks all relevant output for the Client to ensure its accuracy, appropriateness and completeness before the Client uses it for any purpose. The Client must only use the output of such AI-enabled features for their intended purpose as stated in the relevant product descriptions and otherwise in accordance with these Terms. 

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 do any or all, or any combination, of the following: 

1. notify the Client of such unlawful Data; 

1. deny its publication through the Buildxact Services or on the Buildxact Platform or its insertion to the System; 

1. demand that the Client bring any unlawful Client Data into compliance with these Terms and applicable law; and 

1. temporarily or permanently remove the unlawful Data from the Buildxact Services, Buildxact Platform or Account, restrict access to it or delete it. 

If Buildxact is presented with convincing evidence that the relevant Data is not unlawful, Buildxact may, at its sole discretion, restore such Data, which was removed from the Buildxact Services, Buildxact Platform 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 Claims that arise out of the Client or its Users entering unlawful Data into the Buildxact Services in accordance with the indemnity set out in Section 11. 

4.4 Liability in respect of Claims 

The Client acknowledges and agrees that any Claim made by any third party in respect of ownership of, title to, or use of Client Data (except for use of Client Data by Buildxact in breach of these Terms, where such Client Data has not been uploaded by the Client or its Users in breach of these Terms including Sections 4.1 (a) and 4.1(b)) 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 Section 4, except to the extent caused by Buildxact’s gross negligence or wilful misconduct. 

4.5 Confidentiality and Compelled Disclosure 

Each party agrees:  

1. not to disclose the Confidential Information of the other party to any third party;  

1. to use all reasonable endeavors to protect the Confidential Information of the other party from any unauthorized disclosure; and  

1. to only use the Confidential Information of the other party for the purposes for which it was disclosed or provided by the other party (including any purpose contemplated by these Terms), and not for any other purpose.  

The obligations in this Section 4.5 do not apply to Confidential Information of a party that:   

1. i. is required to be disclosed in order for the parties to comply with their obligations under these Terms;
2. ii. is authorized by that party to be disclosed;

iii. is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;  

1. iv. the other party has received from a third party lawfully in possession of such information and who has the lawful power to disclose such information to that party; or  
2. must be disclosed by law or by a regulatory authority, including under subpoena. 

Each party agrees that monetary damages may not be an adequate remedy for a breach of this Section 4.5. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this Section 4.5.   

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 and Subscription Plan, and any desired Add-ons. Different rates apply to different Subscription Types and Subscription Plans, including any Add-ons selected. The applicable Fee is charged in advance on monthly or annual payment intervals depending on the Subscription Plan and payment frequency chosen, unless agreed otherwise between the parties. 

5.1 Standard Pricing 

The standard pricing options for each Subscription Type and Subscription Plan 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 and Acceptable Use Policy 

This Section 6.1 may also be referred to as Buildxact’s “Acceptable Use Policy” with respect to use of the Buildxact Services. The Client and its authorized Users must not: 

1. use the Buildxact Services and the Client’s Account other than for the Approved Purpose; 

1. infringe any laws, third party rights or our policies, procedures or Guidelines (including, for the avoidance of doubt, the Privacy Policy); 

1. use any of the Buildxact Services or their Account in any way when the Client or User (as applicable) has been suspended from using the Buildxact Services or their Account in accordance with these Terms; 

1. circumvent or manipulate the Fee structure, billing process, or Fees owed to Buildxact; 

1. post false, inaccurate, misleading, defamatory or offensive content (including Personal Information); 

1. transfer their Account, username and password to another person without our consent; 

1. distribute viruses or any other technologies that may harm Buildxact, the Buildxact Services, their Account, other accounts on the Buildxact Services, or the interests or property of other Account holders, Clients or other users of the Buildxact Services; 

1. use or attempt to use the Buildxact Services in any manner that, in Buildxact’s reasonable opinion, adversely impacts or is likely to adversely impact any other Buildxact Client, customer or user, or to cause Buildxact to incur unreasonable costs arising as a direct or indirect result of such use (including without limitation sending an unreasonably large amount of AI requests, network traffic or application requests through the Buildxact Services, or using the Buildxact Services in any manner that uses an unreasonable amount of Buildxact’s computing resources); 

1. violate or attempt to violate the security of the Buildxact Services, their Account, or any other account on the Buildxact Services, or hack into the Buildxact Services, their Account or other accounts of the Buildxact Services which the Client is not authorized to use or have been suspended from using; 

1. copy, modify or distribute rights or content owned by Buildxact, other Account holders, Clients or other users of the Buildxact Services including any copyrights and trademarks; 

1. harvest or otherwise collect information from Buildxact, other Account holders, Clients or other users of the Buildxact Services, including email addresses, without their consent; 

1. use any of the Buildxact Services (including email and SMS functionality within the Buildxact Services) to send spam, unsolicited offers, marketing or advertising material; 

1. use the Buildxact Services or any part or element thereof to commit fraud, commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions, or to attempt to do any of the foregoing; or 

1. 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: 

1. 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 authorized User of the same Client or Enterprise Customer; 

1. 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; or 

1. 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. 

6.3 Breach of the Acceptable Use Policy 

Without limiting any other right or remedy which Buildxact has or may accrue, Buildxact may, at its sole discretion, elect to limit, suspend, or terminate access to, or use of, the Buildxact Services in respect of the Client or any User who violates the Acceptable Use Policy. Where practicable, Buildxact will provide advance notice of such violation and give the Client a reasonable opportunity to address the situation. However, the Client acknowledges that it may not always be feasible or appropriate to provide such advance notice. To avoid doubt, any limitation or suspension will continue to the extent and for the duration necessary to address the relevant violation and prevent or mitigate its ongoing effect. Buildxact will take reasonable steps to reinstate such access or use promptly after the violation has been remedied by the Client. 

7. Defects and Rectifications

7.1 Generally 

The Client agrees to use best endeavors 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, subject to Section 2.4. Buildxact agrees to use reasonable endeavors 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. 

7.2 Australian Consumer Law 

If and to the extent the Australian Consumer Law applies to the Client as a consumer in relation to the Client’s receipt or use of the Buildxact Services, the following applies: 

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: 

• to cancel your service contract with us; and 

• to a refund for the unused portion, or to compensation for its reduced value. 

You are also entitled to choose a refund or replacement for major failures with goods. 

If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. 

You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service. 

8.Privacy 

The Client acknowledges that the Client is responsible for the collection, use, storage and otherwise dealing with Personal Information related to the Client’s business and all matters relating to the Client Data, including ensuring that any Personal Information the Client provides to Buildxact (including through upload or provision to, or use of, the Buildxact Services) can be used by Buildxact in the operation of the Buildxact Services and as contemplated by these Terms without breaching any Privacy Laws. 

The Client must, and must ensure that its Users, comply with the legal requirements of any Privacy Laws that may be applicable to the operation of the Buildxact Services and otherwise in respect of all Personal Information collected, accessed, used, stored or otherwise dealt with under or in connection with these Terms and the Client and its Users must not do or omit to do anything to cause Buildxact to breach such Privacy Laws. 

The Client acknowledges that: 

1. from time to time in order to exercise its rights or perform its obligations under these Terms, Buildxact may collect Personal Information relating to the Client’s Users, staff, suppliers, clients or customers; and  

1. in exercising its rights or performing its obligations under these Terms or as otherwise required by laws, Buildxact may provide that Personal Information to third parties, in Australia or elsewhere. 

The Client undertakes to take reasonable steps to ensure that its Users, staff, suppliers, clients or customers are aware:  

1. i. that Buildxact may from time to time collect Personal Information about them in order to exercise its rights or perform its obligations under these Terms; and 
2. of Buildxact’s Privacy Policy (located on the relevant Website). 

Please read the Privacy Policy carefully as it describes Buildxact’s collection, use, and disclosure of Client’s or User’s Personal Information. 

The Client must ensure that it has provided the appropriate notifications and procured the necessary consents or authorizations to allow Buildxact to collect the Client Data and the Personal Information referred to in this Section 8 and to use such Client Data and such Personal Information as contemplated by these Terms and Buildxact’s Privacy Policy and in accordance with Privacy Laws. 

The Client must ensure at all times that any Personal Information transferred to Buildxact is complete, accurate and up to date. Clients and Users can generally access and modify information provided by signing into the Account. If Buildxact provides a Client or User with information about another Client or User in the operation of the Buildxact Services, the Client or User agrees that it will use the information only for the purposes it is provided and in accordance with these Terms and the Privacy Laws. 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 Buildxact Services or the Account. 

The Client must notify Buildxact immediately upon becoming aware of any breach of any Privacy Laws that may be related to the operation of the Buildxact Services or the Personal Information. 

Buildxact agrees to handle any Personal Information the Client provides to Buildxact for the purposes of exercising Buildxact’s rights or performing its obligations under these Terms, and as otherwise contemplated by these Terms. 

9. Intellectual Property

9.1 Reservation of Rights and Ownership 

1. The Client agrees that with the exception of Client Data, all rights, title and interest including Intellectual Property Rights: 

1. i. in the Buildxact Services (and any components thereof);
2. in the Buildxact Data and all materials developed, adapted, modified or created by or on behalf of Buildxact (including in connection with these Terms, the Buildxact Services and any machine learning algorithms output from the Buildxact Services); and

iii. Feedback,  

will at all times vest, or remain vested, in Buildxact (or, if applicable, our third party licensors or service providers). To the extent that the Client has any rights, title and interest in the foregoing, the Client hereby assigns to Buildxact absolutely and beneficially, the whole of the Client’s rights, title and interest including any Intellectual Property Rights in the foregoing. 

1. The Client agrees that Buildxact may use Feedback in any manner which Buildxact sees fit (including to develop new features) and no benefit will be due to the Client as a result of any use by Buildxact of any Feedback.  

1. Other than in respect of Client Data or other content created by the Client or its 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 be recopied and shared with a third party. 

1. The materials listed in Sections 9.1(a)(i), (ii) and (iii) and any other materials displayed on or through the Buildxact Services and an Account (other than in respect of Client Data), including without limitation all information, text, graphics, names, logos, trademarks, design, software and advertisements (collectively the “Intellectual Property”) belong to Buildxact or its licensors and are protected by copyright, trademark and other intellectual property laws unless expressly indicated otherwise on the Buildxact Services or an Account. Clients and Users may access and display this Intellectual Property contained on the Buildxact Services or an Account page on a computer or a monitor or mobile device and print out for personal or internal business use only. All other use, copying or reproduction (including reproduction on any other website, app or service) 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. 

1. Nothing contained in these Terms, the Buildxact Services or an Account constitutes a transfer or license of any Intellectual Property Rights in such Intellectual Property or any part thereof to the Client. 

Buildxact reserves all reasonable rights (including Intellectual Property Rights) to Intellectual Property not expressly granted to the Client in these Terms. 

9.2 Buildxact Use of Data 

The Client grants Buildxact a non-exclusive, royalty-free, worldwide license to copy, transmit, store, back-up, communicate and otherwise access and use the Client Data during the term of the Client’s Subscription Plan and for a reasonable period after the term of the Client’s Subscription Plan to:  

1. supply the Buildxact Services to the Client and its Users (including to enable the Client and its authorized Users to benefit from the Buildxact Services);  

1. communicate the Client Data to third parties selected by the Client and its Users using the features provided in the Buildxact Services; 

1. diagnose problems with the Buildxact Services; 

1. enhance and otherwise modify the Buildxact Services, and 

1. use the Client Data as otherwise reasonably required to exercise Buildexact’s rights and perform Buildxact’s obligations under these Terms.  

The Client  also grants Buildxact a perpetual, non-exclusive, royalty-free, irrevocable, worldwide license (including the right to sub-license) to adapt the Client Data into a de-identified or anonymized form (such that it is no longer capable of identifying the Client as the source of such data or of identifying any customer of the Client or any particular job prepared by the Client for any of its customers) and to retain indefinitely and use, copy, analyse, edit, adapt and communicate the Client Data in that de-identified or anonymized form for any purpose, including without limitation:  

1. for Buildxact’s and its Related Bodies Corporate’s internal business purposes, including product improvement and promotion of Buildxact’s products;  

1. to third parties who Buildxact may contract with from time to time, including to suppliers to the building industry to allow them to forecast and anticipate demand for particular items and materials in particular geographic regions; and 

1. to train Buildxact’s machine learning models including so that they can offer improved insights to other clients and users of the Buildxact Services. 

The Client acknowledges that Buildxact may do the same with the Buildxact Data, but this Section 9.2 does not permit Buildxact to disclose any Buildxact Data to any third party (other than Buildxact’s Related Bodies Corporate) in a form capable of identifying the Client as the source of such data or of identifying any customer of the Client or any particular job prepared by the Client for any of its customers. 

Buildxact may provide its services to many clients in the building industry. The Client acknowledges that nothing in these Terms will prevent Buildxact from providing its services to other clients.  

9.3 Use of the Client’s Intellectual Property 

The Client acknowledges and agrees that Buildxact may use the Client’s intellectual property (such as the Client’s name, logo, and trademarks) in the marketing and promotion of these Terms on the terms and conditions set out in these Terms provided that: 

1. such use is limited to use by Buildxact for the purposes of these Terms including, in relation to the provision of the Buildxact Services; 

1. such use is in compliance with the Client’s logo and branding guidelines as provided to Buildxact from time to time; 

1. 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); 

1. 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 

1. 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 represents and warrants to Buildxact, and will procure that each User represents and warrants to Buildxact, that: 

1. it has full power and authority to accept and perform its obligations under these Terms (including, for the avoidance of doubt, where it is a person entering into these Terms on behalf of a corporation); 

1. if it is a corporation, it is validly incorporated, organised and subsisting in accordance with the laws of its place of incorporation; 

1. if it is a corporation, it has taken all necessary action to authorize the acceptance, delivery and performance of these Terms in accordance with its terms; 

1. if it is accepting these Terms 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 under that power; 

1. it will comply, at all times, with all applicable laws in the performance of its obligations under these Terms and use, promotion and or marketing (as applicable to the Subscription Type and Subscription Plan) of the Buildxact Services;  

1. it has full right, title, interest and ownership in, or otherwise has the right to upload and grant the rights granted under these Terms in, any and all Client Data uploaded to an Account. Further, any Client Data 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;  

1. the Client Data (and its transfer to and use by Buildxact as authorized by the Client) under these Terms does not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including rights of privacy or rights of publicity;  

1. any use, collection and disclosure of Client Data authorized in these Terms is not inconsistent with the terms of any applicable privacy policy;  

1. the Client will inform Buildxact if it has reasonable concerns relating to Buildxact’s provision of the Buildxact Services under these Terms, with the aim that the parties will use all reasonable efforts to resolve the Client’s concerns;  

1. the Buildxact Services are provided to the Client solely for the Client’s benefit except as otherwise expressly provided in these Terms and the Client will not (and will not attempt to) disclose, or provide access to, the Buildxact Services to third parties without prior written consent; 

1. the Client will be responsible for the use of any part of the Buildxact Services, and the Client must ensure that no User uses any part of the Buildxact Services to break any law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Buildxact Services;  

1. the Client has reviewed the terms of these Terms and it understands them and will use the Buildxact Services in accordance with them; and 

1. the Client has all the hardware, software and services which are necessary to access and use the Buildxact Services, including any required browsers or operating systems or equipment requirements as set out on the Website. 

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 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 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: 

1. the Client’s use of the Website, Buildxact Services or the Client’s Account, or any information the Client provides to Buildxact, including the Client or its Users entering unlawful Data, or entering Data that the Client and its Users did not have the rights to upload in accordance with Sections 4.1(a) and 4.1(b), into the Buildxact Services, 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 

1. 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, 

except to the extent caused by Buildxact’s gross negligence or wilful misconduct, and specifically excluding an indemnity for indirect loss or consequential loss. 

12. Limitation of Liability

12.1 No Advice 

No part of the Buildxact Services or any information contained on an Account is intended to constitute advice by Buildxact. Buildxact is not liable or responsible for any reliance placed on the Buildxact Platform, the Buildxact Services or the Account, or their contents, as constituting any form of advice or recommendation from Buildxact, by the Client or any User or anyone who the Client may inform of its contents. 

12.2 Warranty Disclaimer 

Subject to Section 12.6 and any rights the Client may have under the Australian Consumer Law or other Statutory Rights, to the extent permitted by applicable law, the Buildxact Services are provided on an “AS IS” basis, and Buildxact, other than those identified in Sections 10 and 12.6, makes no warranties, representations and guarantees (whether express or implied) in respect of the Buildxact Platform 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 Buildxact Platform or the Buildxact Services, their content or the content of any website linked to or from the Buildxact Platform, Buildxact Services or an Account. However, the Client may have Statutory Rights by law which arise under these Terms, and these Terms are subject to those rights. 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 Buildxact Platform, Buildxact Services 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 to the extent resulting from or relating to such events. 

12.4 Exclusion of Incidental, Consequential and Certain Other Damages 

Subject to Section 12.6, 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 indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract (including for liability under any indemnity), tort (including negligence), statute or otherwise)  arising under or in connection with the Terms, the Buildxact Platform, the Buildxact Services or the Client’s Account, any information downloaded from the Buildxact Platform, the Buildxact Services or the Client’s Account, the Client’s use of or access to (or inability to use or access) the Buildxact Platform, 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 Buildxact Platform, 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, subject to this Section 12 and to the extent permitted by law, Buildxact’s, its Related Bodies Corporate’s and affiliates’, and their respective officers’, employees’, agents’ and contractors’ maximum aggregate liability to the Client or any other person under or in connection with these Terms or their subject matter, the Buildxact Platform, the Buildxact Services or the Client’s Account and any information downloaded from the Buildxact Platform, the Buildxact Services or the Client’s Account, or the Client’s use of or access to (or inability to use or access) the Buildxact Platform, the Buildxact Services or the Client’s Account, or any third party or other Client or User’s use of or access to this Buildxact Platform, the Buildxact Services or the Client’s Account, however arising (including breach of contract, negligence (including tort), misrepresentation or other claim), will not exceed the Fees paid by the Client to Buildxact for the Buildxact Services under the applicable Subscription Plan applying to the Account in the 12 months prior to the event giving rise to the liability under these Terms. 

12.6 Australian Consumer Law and other Statutory Rights 

Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations may confer the Client with rights, warranties, consumer guarantees and remedies relating to the provision of the Buildxact Services which cannot be excluded, restricted or modified (“Statutory Rights”).  

Subject to the Client’s Statutory Rights, Buildxact excludes all express and implied warranties, and all material, work and services (including the Buildxact Services) are provided to the Client without warranties of any kind, either express or implied, whether in statute, at law or any other basis.  

If the Australian Consumer Law applies to the Client as a consumer, nothing in these Terms excludes, restricts or modifies the Client’s Statutory Rights including as a consumer under the Australian Consumer Law or any other law that cannot be excluded, restricted or modified by agreement. To the fullest extent permitted by law and subject to the Client’s Statutory Rights including under the Australian Consumer Law, Buildxact’s liability for a breach of the Client’s Statutory Rights referred to in this Section 12.6 is limited to, at Buildxact’s option:  

1. in the case of goods supplied or offered by Buildxact, any one or more of the following: 

1. i. the replacement of the goods or the supply of equivalent goods;
2. ii. the repair of the goods;

iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or 

1. iv. the payment of the cost of having the goods repaired; or

1. in the case of services supplied or offered by Buildxact: 

1. i. the supplying of the Buildxact Services again; or
2. ii. the payment of the cost of having the Buildxact Services supplied again,

and excludes loss or damage that is reasonably foreseeable for failures by Buildxact in providing the Buildxact Services. 

13. Termination

13.1 Termination for Convenience 

A Subscription Plan may be terminated for convenience as specified below: 

1. by the Client by clicking an applicable cancellation link on the Website (or using an equivalent feature provided on another part of the Buildxact Platform), when logged in to the Account or by other means specified by Buildxact. Note as set out in Section 13.4 (Refunds) and Section 14 (Subscription Plans, Add-ons, Downgrades and Specific Termination Terms) the Client’s subscription will continue until the end of the current Subscription Plan determined by the Client’s contract (month by month contract or annual contract) or as otherwise specified in Section 14; 

1. by Buildxact providing at least 30 days advance written notice to the Client, in which case if there is any prepaid and unused amount of Fees remaining in the Client’s current Subscription Plan as at such termination, Buildxact will provide a pro-rata refund to the Client reflecting such unused amount within a reasonable period of time (not to exceed 30 days) after such termination; or 

1. 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 under this Section 13.1(c) will take effect at the end of the current Subscription Plan as per the termination by the Client under Section 13.1(a) and is subject to the termination period for each relevant Subscription Plan as specified in Section 14. 

13.2 Termination for Default  

A Subscription Plan may be terminated for default or access to an Account limited or discontinued as follows: 

1. 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; 

1. immediately by either party if the other party breaches its obligations as applicable under Section 9 (Intellectual Property) and Section 11 (Indemnity) of these Terms, or for any material breach of these Terms which is not capable of being remedied; or 

1. by Buildxact if and to the extent required to give effect to Section 13.6 or to Buildxact’s suspension or termination of access rights set out at the beginning of these Terms. 

13.3 Effect of Termination 

Upon termination of the Subscription Plan: 

1. Buildxact shall deactivate the Account, as soon as reasonably practicable after the relevant termination takes effect in accordance with these Terms. If the Client has specifically requested for an earlier deactivation of the Account under an annual contract, Buildxact shall fulfil such request within 1 month of its receipt of such request, but if such termination was under Section 13.1(a) or 13.1(c) such earlier deactivation will not entitle Client to a refund to which it was otherwise not entitled; and 

1. Client must: 
   1. stop using and prevent the further usage of the Buildxact Services by Client and its Users (and, if an Enterprise Customer, by its Clients and their Users) beyond the time outlined in Section 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 under these Terms prior to their termination. 

Termination of these Terms is without prejudice to either party’s rights and liabilities accrued prior to termination. 

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. It is the Client’s responsibility to back up any Client Data it wants to retain prior to termination using the standard tools and functionality made available via the Buildxact Services from time to time.  

13.4 Refunds 

Except where: (i) expressly stated in these Terms; (ii) these Terms are terminated by the Client under Section 13.2(a) or 13.2(b) as a result of a material breach by Buildxact, or under Sections 15.2 or 15.3 following modifications made by Buildxact; or (iii) as required by applicable law (including the Australian Consumer Law), the Client is not entitled to any refund of all or part of the Fees paid by the Client. In all other circumstances Buildxact is entitled to retain all Fees and amounts paid by the Client, whether in advance under an Annual Contract (Section 14.2) or other subscription as outlined in Section 14.  

13.5 Remedies 

If Buildxact has the right to terminate these Terms as a result of an uncured breach by a Client or User, Buildxact is also entitled to exercise any of Buildxact’s legal rights against the Client in accordance with these Terms 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. 

13.6 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, to the extent and for the duration necessary to address the relevant harm and prevent or mitigate its ongoing effect. Buildxact will take reasonable steps to reinstate access or use promptly after the relevant issue has been addressed. 

14. Subscription Plans, Add-ons, Downgrades and Specific Termination Terms

Buildxact offers the following paid subscription frequencies which the Client may select upon signing up to a Subscriptions Plan: 

1. Month to Month Contracts paid monthly (see Section 14.1); 

1. Annual Contracts paid annually (see Section 14.2). 

The currently available Subscription Plans are: 

1. i. Foundation Subscription Plan;
2. Pro Subscription Plan; and

iii. Master Subscription Plan (which includes Premium Support as set out in Section 2.4). 

14.1 For Month to Month Contracts 

The following provisions under this Section 14.1 shall apply when the Client selects a Month to Month Contract. 

1. 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 Section 13 (Termination) prior to a monthly renewal date. Clients will be notified at least yearly via email to the billing email address they have provided to remind them of the nature of the automatic renewal arrangements. 

• 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 is terminated in accordance with these Terms. 

1. 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 under Section 13.1(a) or 13.1(c) after any applicable Free Trial has ended the monthly payment for the then-current period is non-refundable and Buildxact’s Services will continue until the end of that monthly billing period. In any other case, termination by the Client shall be effective immediately at the end of the relevant notice period (if any), as applicable to the termination, and a refund may be payable as set out in Section 13.4. 

• (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 under Section 13.1(a) or 13.1(c) on 10 Jan 2025, the service will continue until 31st January 2025 when the subscription expires). 

14.2 For Annual Contracts  

The following provisions under Section 14.2 shall apply when the Client selects an Annual Contract Subscription Plan. 

1. Annual Contract Paid Monthly (no longer available to be purchased)

This Section 14.2(a) shall apply only to Clients remaining on the Annual Contract Paid Monthly Subscription Plan as of 2 June 2025. The Annual Contract Paid Monthly Subscription Plan is no longer available to be purchased. 

• Existing Annual Contract Paid Monthly Subscription Plans will be phased out after 2 June 2025 in accordance with this Section 14.2(a).  

• At the end of their current subscription term, those Clients wishing to continue using the Buildxact Services must choose to move to either a Month by Month Contract, or an Annual Contract (payable upfront), at the applicable rate set out in the Rate Sheet at the time their current subscription term ends. If the Client does not wish to continue using the Buildxact Services they can instead choose to cancel at the end of their current subscription term. 

• To ensure continuity of the Buildxact Services, if a Client does not choose to cancel and does not choose which frequency to move to, the Client will be automatically moved to a Month by Month Contract at the end of their Annual Contract Paid Monthly current subscription term.  

• Instead of remaining on the Annual Contract Paid Monthly until the end of their current subscription term, the Client may at any time elect to transition to a new Subscription Plan. In that case, the Client must give written notice to Buildxact of its election so that this can be managed appropriately. Any remaining unpaid Fees for future months on the existing Annual Contract Paid Monthly plan will be waived by Buildxact upon Client’s payment for the new Subscription Plan. At the time of payment for the new Subscription Plan, the Annual Contract Paid Monthly will terminate without penalty and the new Subscription Plan will commence.  

• The Client authorizes Buildxact to continue 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. 

• Except for any matters in respect of which these Terms are silent that were covered in the version of these Terms previously applicable to the Client’s subscription (in which case such aspects of the previous Terms will continue to apply to the extent these Terms are so silent), these Terms will apply to the Client’s ongoing use under the Annual Contract Paid Monthly for the current subscription term. 

1. b. 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 initial subscription contract term is 12 months and automatically renews annually unless the subscription is terminated in accordance with Section 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 (for Annual Contract Paid Monthly Clients, until the end of their relevant subscription term) or at each annual renewal at the then-current rate for the subscription until the subscription is terminated in accordance with these Terms.  

1. c. 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 under Section 13.1(a) or 13.1(c) after any applicable Free Trial has ended the annual payment for the then-current period is non-refundable and Buildxact’s Services will continue until the end of that annual billing period, except as set out in the remainder of this Section 14.2(b). In any other case, termination by the Client shall be effective immediately at the end of the relevant notice period (if any), as applicable to the termination, and a refund may only be payable as set out in Section 13.4. 

• If the Client cancels under Section 13.1(a) or 13.1(c) at any time in the first year after a paid annual Subscription Plan has commenced (excluding any applicable Free Trial) or after the beginning of each subsequent renewal thereof (where that commencement date or, if renewed, most recent renewal (as applicable) will be the “Reference Date” for the purposes of the below table), during the relevant time period set out in the left hand column of the table below, they may receive a refund calculated as set out in the corresponding row of the right hand column of the table below: 

• (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 under Section 13.1(a) or 13.1(c) on 10 January 2025, the service will continue until 31 March 2025 and the Client would receive a refund of the renewal Fee paid less 9 x the monthly Fee based on the full Month to Month Contract monthly Fee applicable under the Rate Sheet in effect as at 1 July 2024). 

• For Annual Contract paid Monthly Clients current as at 2 June 2025, until the end of only the relevant subscription or renewal term in effect at that time, such Clients may be able to cancel their subscription early under Section 13.1(a) or 13.1(c) subject to the Client paying the applicable additional amounts set out in the corresponding row of the table below (where the commencement of the subscription or renewal term that is in effect as at 2 June 2025 will be the “Reference Date” for the purposes of the below table): 

14.3 Add-ons 

Add-on inclusions (as part of the base Fee for a Subscription Plan) and availability (where not included as part of the relevant base Fee) differ per Subscription Plan chosen. Please visit the Website for further information about the relevant inclusions and availability on the different Subscription Plans. 

During a Free Trial of a Subscription Plan, all available Add-ons applicable to that Subscription Plan are enabled for trial use. 

After any applicable Free Trial has ended, the Client may elect to try an Add-on as a Free Add-on, or to purchase that Add-on for their Subscription Plan.  

Free Add-ons:  

1. may only be accessed once per Add-on per tenant; 

1. can be disabled (to avoid charge) and re-enabled (if desired) within the Free Add-on trial period; and 

1. will become paid Add-ons after an applicable Free Add-on trial period lapses (and the Fee to be paid will be pro-rated based on the amount of days in the period remaining until the next Subscription Plan renewal date). 

Paid Add-ons: 

1. i. inherit and are subject to the payment frequency of the Client’s relevant Subscription Plan; and
2. can be disabled during the term of a Subscription Plan, with effect from:

(1) for Subscription Plans which are Month to Month Contracts, the next monthly renewal; and 

(2) for Subscription Plans which are Annual Contracts, the earlier of the next annual renewal or 30 days after the Add-on is disabled, and if the latter, Buildxact will provide a pro-rata refund to the Client reflecting the prepaid and unused amount of the Fee for the Add-on remaining in the Client’s current Subscription Plan within a reasonable period of time (not to exceed 30 days) after such disabling. 

14.4 Upgrades and Downgrades 

The Client can choose to upgrade its applicable Subscription Plan at any time, subject to the payment of a pro-rata Fee reflecting the difference in the cost between its current Subscription Plan and the upgraded Subscription Plan, pro-rated to the remaining length of time in the Client’s current Subscription Plan. Upon payment of that Fee the upgrade will be applied and the Client may use the new Subscription Plan for the remainder of its then-current term. 

The Client may also downgrade its applicable Subscription Plan at any time, with effect from: 

1. for Subscription Plans which are Month to Month Contracts, the next monthly renewal; and 

1. for Subscription Plans which are Annual Contracts, the earlier of the next annual renewal or 30 days after the Subscription Plan is downgraded, and if the latter, Buildxact will provide a pro-rata refund to the Client reflecting the difference in the cost between its current Subscription Plan and the downgraded Subscription Plan, pro-rated to the remaining length of time in the Client’s current Subscription Plan, within a reasonable period of time (not to exceed 30 days) after such downgrade. 

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. 

If any such change is materially detrimental to Client or its use of the Buildxact Services, Client may terminate these Terms with immediate effect by notifying Buildxact within 30 days of receiving Buildxact’s notice of such modifications, and Client will receive a pro-rata refund of any prepaid and unused amount of Fees remaining in the Client’s current Subscription Plan as at such termination, which Buildxact will provide within a reasonable period of time (not to exceed 30 days) after such termination. 

15.3 Modifications to Services 

Buildxact reserves the right to modify the Buildxact Services or any part or element thereof from time to time with as much notice (if any) as is reasonable in the circumstances, including, without limitation: 

1. rebranding the Buildxact Services at its sole discretion; 

1. ceasing providing, or discontinuing the development of, any particular Buildxact Service or part or element of the Platform temporarily or permanently in any jurisdiction; 

1. 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 

1. 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 set out in this Section 15.3 shall indicate its consent to the Modification to Services and to all Terms then applying. However, if any such Modification to Services is materially detrimental to Client or its use of the Buildxact Services, Client may terminate these Terms with immediate effect by notifying Buildxact within 30 days of receiving Buildxact’s notice or otherwise becoming aware of such Modification to Services, and Client will receive a pro-rata refund of any prepaid and unused amount of Fees remaining in the Client’s current Subscription Plan as at such termination, which Buildxact will provide within a reasonable period of time (not to exceed 30 days) after such termination. Except for the Client’s rights to receive a refund as provided in these Terms, and subject to any of the Client’s Statutory Rights (including rights under the Australian Consumer Law), 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, in accordance with these Terms. 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, then subject to the remainder of this Section 16.1 it must not commence court proceedings (unless urgent interlocutory relief) without first complying with the following dispute resolution procedure: 

1. the party must give notice in writing to the party in dispute (together, the “Disputing Parties”) specifying:

1. the nature of the dispute; 

1. the outcome required by the party; and 

1. the action the party believes will settle the dispute, 

(“Dispute Notice”) 

1. 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 Section 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 agreed 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 Section:
   
   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 each bear their own costs of complying with this Section and the Disputing Parties must bear equally the costs of any mediator engaged. 

16.4 Court Action 

Nothing in this Section 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 this Section 16.4 above shall only occur after Section 16.1 (Dispute resolution procedure) and Section 16.2 (Mediation) has occurred, or a minimum of 60 Business Days has elapsed from the giving of the Dispute Notice referred to in Section 16.1. 

17. General Provisions

17.1 Entire Agreement 

These Terms, including the Rate Sheet, constitute the entire agreement between the parties with respect to their subject matter and supersede 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 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 endeavors to minimise the effect of the Force Majeure Event and to bring it to an end. 

Buildxact 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 Buildxact Platform or Buildxact Services 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 without the prior written consent of Buildxact. Buildxact may assign, novate or otherwise deal with all or part its rights under these Terms 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 is declared by any judicial or other competent authority to be void, voidable, illegal, unfair under the Australian Consumer Law or otherwise unenforceable, then such provision shall be severed from these Terms. In all other respects, the remaining provisions of the Terms shall remain in full force and effect. 

17.6 Power of Attorney 

Each person who agrees to these Terms 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 under that power. 

17.7 No Limitation 

Any rights and remedies that a person may have under these Terms 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 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. A waiver of any power or right under these Terms: 

1. must be in writing signed by the party entitled to the benefit of that power or right; and 

1. is effective only to the extent set out in that written waiver. 

17.9 Survival 

The obligations under these Terms are of indefinite duration and the following provisions shall survive termination or cessation of these Terms (however occurring): Sections 1, 2.2, 4, 8, 9, 10, 11, 12, 13.3, 13.4, 13.5, 141, 14.2, 16 and this Section 17.  

17.10 Joint and Several 

A warranty representation or obligation which binds or benefits two or more persons under these Terms 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, and the implementation of the transactions contemplated by this Terms. 

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: 

1. a personal delivery; 

1. the second Business Day after mailing; or 

1. except for notices of termination or an indemnification 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.  

Notices to Buildxact must be addressed to the relevant address last notified by Buildxact to the Client. 

17.13 Governing Law 

These Terms 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 and any courts entitled to hear appeals from them. 

17.14 Copyright/Trademark 

Buildxact is a registered trademark of Buildxact. Other names appearing on the Platform and the Buildxact Services may be trademarks of their respective owners. The Client agrees that they will not use the Platform or Buildxact Services 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 Platform or Buildxact Services. 

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. 

17.16 International Use 

Buildxact makes no representation or warranty that any competition, offering or content accessible through the Platform or Buildxact Services are appropriate or available for use in locations outside Australia and the USA. If you choose to access or use the Platform or Buildxact Services from other locations, you do so at your own risk and are responsible for compliance with all applicable laws. The Client is not authorized to access the Platform or Buildxact Services from any location where doing so would be illegal or would breach applicable export controls, including any country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country, or if the Client is listed on any US Government list of prohibited or restricted parties. 

17.17 No Exclusivity 

Buildxact reserves the right to provide the Services to Client’s competitors and makes no promise of exclusivity. Client reserves the right to receive services from Buildxact’s competitors and makes no promise of exclusivity.  

17.18 No Third-Party Beneficiaries 

Exempting Section 2.5(i), this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. 

17.19 Interpretation  

In these Terms, unless the context otherwise requires:   

1. the singular includes the plural and vice versa; 

1. wherever “include”, “for example” or any form of those words or similar expressions is used, it must be construed as if it were followed by “(without being limited to)”; 

1. a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time; 

1. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time; 

1. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa; 

1. no provision will be interpreted to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it; 

1. a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time; 

1. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; 

1. a reference to time is to local time in Victoria; and 

1. a reference to $ or dollars refers to the currency of Australia from time to time. 

Last update: June 2, 2025