In this agreement unless the context otherwise requires:

Authorised User

means an individual employee, agent or independent contractor of the Subscriber who is nominated by the Subscriber to the Supplier and authorised by the Subscriber to access and use the Services and Software under this agreement. The Subscriber must not allow any bot, artificial intelligence system, machine account, robotic process automation, script or other automated means to access or use the Services, including through an Authorised User’s credentials, unless the Supplier gives prior written consent.

Authorised User Seat

means one named, individual, non-concurrent right for one Authorised User to access and use the Services and Software under the Subscriber’s Subscription Plan.

Business Day

means a day on which banks are open for general banking business in Sydney, excluding Saturdays, Sundays or public holidays.

Due Date

means, in relation to an invoice, the day falling 7 calendar days after the date of issue of that invoice, or, if that day is not a Business Day, the Business Day immediately preceding that day.

Intellectual Property Rights

means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trade marks, designs, patents, circuit layouts, business names, domain names, inventions, confidential information, trade secrets, know-how, database rights, rights in data compilations, source code, object code, algorithms, software architecture, user interfaces, workflows and all other intellectual property rights, whether registered or unregistered.

Late Payment Administration Fee

means $20.

Normal Business Hours

means the hours of 9.00 am to 5.00 pm (Australian Eastern Standard Time) on a Business Day.

Object Code

means computer software code in machine-readable or executable form, including compiled code, scripts, browser-delivered code, client-side code and any other code not ordinarily readable by a human without de-compilation, interpretation or other technical process.

Privacy Policy

means the Supplier’s policy relating to the privacy and security of the Subscriber Data, as amended from time to time, available here.

Services

means the subscription software services provided by the Supplier to the Subscriber under this agreement via the Website, as more particularly described on the Website, including system administration and system management of the Software and the right for Authorised Users to access and use the Software in accordance with the Subscriber’s Subscription Plan.

Software

means the online building inspection and certification software platform owned, managed and maintained by the Supplier and made available via the Website from time to time, including any related web or mobile application and any module, component, feature, functionality, update, enhancement or replacement of that platform.

Source Code

means computer software code in human-readable form, including any related comments, instructions, build files, scripts, libraries, logic, algorithms, configuration files, database schemas and technical documentation.

Standard Support Services

means the standard support services for access to and use of the Services, as described in the Subscriber’s Subscription Plan and on the Website.

Subscriber

means the person or legal entity that enters into this agreement with the Supplier and acquires a subscription for the Services.

Subscriber Data

means the data, information and materials inputted or uploaded to the Website by or on behalf of the Subscriber or an Authorised User for the purpose of using the Services, and emails sent to the Website addressed to the Subscriber but excludes the Supplier IP and any Subscriber Outputs.

Subscriber Outputs

means documents, forms, reports, certificates, correspondence or other outputs generated through the Services for the Subscriber’s ordinary business use but excludes the Supplier IP except to the extent incorporated in those outputs under the licence granted in this agreement.

Subscription Fees

means the subscription fees payable by the Subscriber to the Supplier for the Services as set out on the Website, or as otherwise agreed between the Supplier and the Subscriber in writing, and includes:

1. (a)the fixed monthly fee for the Subscriber’s Subscription Plan; and
2. (b)any variable fees or charges for additional Authorised User Seats, including additional certifier logins, additional projects, excess usage or other variable items applicable to the Subscriber’s Subscription Plan.

Subscription Plan

means the plan selected by the Subscriber for the Services, as described on the Website or otherwise agreed in writing between the parties, including any included Authorised User Seats, project allowances and other usage parameters.

Supplier IP

means all Intellectual Property Rights in and to the Website, Services, Software, Source Code, Object Code, Supplier Materials, templates, forms, precedents, workflows, user interface, screen displays, look and feel, database structures, system architecture, algorithms, APIs, integrations, documentation, content, text, graphics, layouts, business rules, know-how, improvements, modifications and derivative works, whether existing before, on or after the date of this agreement, but excludes Subscriber Data.

Supplier Materials

means all materials or information made available by the Supplier through or in connection with the Website, Services or Software, including default compliant document templates, forms, precedents, workflows, text, graphics, content, guides, help materials, technical materials and documentation, but excludes Subscriber Data.

Virus

means anything, including any software, code, file or program, that may prevent, impair or adversely affect:

1. (a)the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
2. (b)access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or
3. (c)the user experience, including worms, trojan horses, viruses and other similar things or devices.

Website

means buildingcompliance.systems or any other website, web application or mobile application used by the Supplier to deliver the Services, as notified by the Supplier from time to time.

In this agreement, unless the contrary intention appears:

1. (a)words in the singular include the plural and vice versa;
2. (b)words importing a gender include any other gender;
3. (c)a reference to a person includes bodies corporate and unincorporated associations and partnerships;
4. (d)monetary references are references to Australian dollars;
5. (e)when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day, unless this agreement expressly provides otherwise;
6. (f)a reference to:
   
   1. (i)a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
   2. (ii)“including”, “for example” or “such as” when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
   3. (iii)“law” includes legislation, the rules of the general law, including common law and equity, and any judgment, order, decree, declaration or ruling of a court of competent jurisdiction or governmental agency binding on a person or the assets of that person.

    

Subject to the Subscriber paying the Subscription Fees and complying with this agreement, the Supplier grants to the Subscriber a non-exclusive, non-transferable right during the term of this agreement to permit its Authorised Users to access and use the Services and the Software in accordance with the Subscriber’s Subscription Plan.

In relation to the Authorised User Seats and Authorised Users, the Subscriber undertakes that:

1. (a)the maximum number of Authorised Users that it authorises to access and use the Services will not exceed the number of Authorised User Seats included in, or otherwise acquired under, the Subscriber’s Subscription Plan at any one time;
2. (b)it will not allow any Authorised User Seat to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User will no longer have any right to access or use the Services;
3. (c)each Authorised User will have a unique user identification and a secure password, and those credentials must not be shared;
4. (d)it will maintain a written, up-to-date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request; and
5. (e)it must not nominate, configure, provision or permit any bot, artificial intelligence system, machine account, robotic process automation, script or other automated means to be an Authorised User, or to access or use the Services using the credentials of an Authorised User, unless the Supplier has first given its written consent.

The rights provided under this clause 2 are granted to the Subscriber only and are not granted to any subsidiary or holding company of the Subscriber.

The Subscriber is responsible and liable for:

1. (a)all acts and omissions of each Authorised User in connection with the Website, Services, Software, Supplier Materials, Supplier IP or this agreement, whether or not those acts or omissions were authorised by the Subscriber;
2. (b)all acts and omissions of any employee, officer, contractor, agent, consultant, client, customer or other person who accesses, uses, observes, copies or receives the benefit of the Website, Services, Software, Supplier Materials or Supplier IP through the Subscriber, an Authorised User, the Subscriber’s systems or any credentials issued to the Subscriber or an Authorised User; and
3. (c)any breach of this agreement by an Authorised User or by a person referred to in clause 2.4(b), which will be deemed to be a breach of this agreement by the Subscriber.

The Subscriber must ensure that all Authorised Users are made aware of, and comply with, the restrictions in this agreement.

The Subscriber may request additional Authorised User Seats, increased project allowances or other changes to its Subscription Plan. If the Supplier approves the request, the Subscriber must pay the applicable Subscription Fees at the rates then published on the Website or otherwise agreed in writing.

The Subscriber must pay all Subscription Fees and other amounts invoiced under this agreement by the Due Date.

1. (a)Subscription Fees comprise:
   
   1. (i)the fixed monthly fee for the Subscriber’s Subscription Plan, invoiced monthly in advance; and
   2. (ii)any variable fees or charges for additional Authorised User Seats, including additional certifier logins, additional projects, excess usage or other variable items under the Subscriber’s Subscription Plan, invoiced monthly in arrears unless the Website or a written agreement between the parties provides otherwise.

    

2. (b)The fixed monthly fee is payable for the Subscription Plan as a whole. It is not a separate fee for each Authorised User, except to the extent the applicable pricing provides for additional charges for additional Authorised User Seats, additional certifier logins, additional projects or other variable items.
3. (c)Subscription Fees are those published on the Website from time to time or otherwise agreed in writing between the parties.
4. (d)All Subscription Fees are exclusive of GST.
5. (e)All amounts paid to the Supplier are non-refundable, except to the extent required by law.
6. (f)Payment must be made by EFT or credit card, or by any other payment method permitted by the Supplier.
7. (g)If the Subscriber pays by Visa or Mastercard debit card or credit card, the Supplier will bear the merchant fees associated with that payment. If the Subscriber pays by any other form of debit card or credit card, the Subscriber must pay, in addition to the invoiced amount, an amount equal to the merchant fee reasonably incurred by the Supplier in processing that payment, to the extent permitted by law.

1. (a)The Supplier may change the Subscription Fees by publishing the updated pricing on the Website and giving notice to the Subscriber.
2. (b)A change to the Subscription Fees that does not increase the Subscription Fees payable by the Subscriber, and does not introduce a new fee, charge or variable pricing item payable by the Subscriber, may take effect immediately when the Supplier gives notice of the change or on any later date stated in that notice.
3. (c)A change to the Subscription Fees that increases the Subscription Fees payable by the Subscriber, or introduces a new fee, charge or variable pricing item payable by the Subscriber, takes effect after a minimum 14 days after the Supplier gives notice of the change or on any later date stated in that notice, by default the first day of the next calendar month.
4. (d)If the Supplier gives notice of a change referred to in clause 3.2(c), the Subscriber may terminate this agreement by giving written notice to the Supplier before the change takes effect. If the Subscriber gives a termination notice under this clause 3.2(d), this agreement terminates on the date the Supplier receives that notice, or on any later date stated in the termination notice that is before the change takes effect.
5. (e)Clause 11.1(a) does not apply to a termination under clause 3.2(d).
6. (f)A change to the Subscription Fees applies only prospectively and does not affect any Subscription Fees that accrued before the change takes effect.

Unless otherwise agreed in writing:

1. (a)if the Supplier has not received payment of an invoice by the Due Date, the Supplier may send the Subscriber a written non-payment notice and charge the Subscriber a Late Payment Administration Fee for issuing that notice;
2. (b)if the overdue amount and any Late Payment Administration Fee are not paid in full within 7 calendar days after the Supplier sends the non-payment notice, the Supplier may, without liability to the Subscriber and without limiting any other rights or remedies, suspend access to all or any part of the Services for the Subscriber and any Authorised User until all overdue amounts and Late Payment Administration Fees are paid in full;
3. (c)during any suspension under clause 3.3(b):
4. (d)this agreement remains in full force and effect;
   
   1. (i)the Subscriber’s obligation to pay Subscription Fees and any other amounts owing under this agreement continues;
   2. (ii)the Subscription Fees that would have been payable if the suspension had not occurred continue to accrue, and the Supplier may continue to invoice those amounts in the usual way; and
   3. (iii)the Subscriber is not entitled to any set-off, withholding, reduction, credit, rebate or refund for the suspension period;

    

5. (e)the Supplier is not obliged to restore access unless and until all outstanding invoices, Late Payment Administration Fees and any other amounts then due and payable under this agreement have been paid in full; and
6. (f)if the relevant overdue amounts, including any Late Payment Administration Fee, remain unpaid for 14 days after suspension begins, the Supplier may terminate this agreement by notice to the Subscriber, with termination taking effect on the fifth Business Day after the notice is given unless all overdue amounts, including any Late Payment Administration Fee, are paid in full by 5.00 pm (AEST) on that day.

1. (a)In this clause 3.4, expressions that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meanings given to them in that Act.
2. (b)Unless this agreement expressly states otherwise, all amounts payable under this agreement are exclusive of GST.
3. (c)If GST is payable on any taxable supply made under or in connection with this agreement, the Subscriber must pay the Supplier an additional amount equal to the GST payable on that taxable supply. The Subscriber must pay that amount at the same time as the consideration for the taxable supply is payable.
4. (d)The Supplier must give the Subscriber a valid tax invoice for any taxable supply for which GST is payable.
5. (e)If an adjustment event occurs in relation to a taxable supply, the Supplier must issue an adjustment note, and the parties must make any payment or repayment necessary to reflect the adjustment.

The Supplier will provide the Services and make the Software available to the Subscriber and the Authorised Users during the term of this agreement, subject to and in accordance with this agreement, including clauses 3.3 and 7.6.

The Supplier will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except during scheduled maintenance, unscheduled outages and emergency maintenance. The Supplier will use reasonable endeavours to conduct scheduled maintenance outside Normal Business Hours and to give at least 48 hours’ notice by email or through the Software. For unscheduled outages and emergency maintenance, the Supplier will use commercially reasonable endeavours to limit the disruption and restore access as soon as reasonably practicable.

The Supplier will, as part of the Services and at no additional cost to the Subscriber, provide the Subscriber with access to the Supplier’s Standard Support Services during Normal Business Hours.

The Subscriber is responsible for the legality, reliability, integrity, accuracy and quality of the Subscriber Data.

For so long as the Subscriber is a party to this agreement, the Supplier will back up the Subscriber Data daily.

If there is loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy is for the Supplier to use commercially reasonable efforts to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by the Supplier.

The Supplier is not responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties subcontracted by the Supplier to perform services related to Subscriber Data storage, maintenance and back-up).

The Supplier will, in providing the Services, comply with its Privacy Policy.

The Supplier may use third party providers to subcontract provision of the Services and to perform services related to storage, maintenance and back-up of Subscriber Data. These third-party providers may be in jurisdictions outside of Australia.

By selecting the online option to use the Planning Portal, the Subscriber consents to the Supplier providing to the NSW Government any information that the NSW Government requires from time to time in connection with that reporting function.

The Supplier will provide the Services to the Subscriber in accordance with the terms of this agreement and with reasonable skill and care.

The Supplier is not liable to the Subscriber or any Authorised User to the extent of any non-conformance that is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.

If the Services are defective, the Supplier will, at its expense, use commercially reasonable endeavours to correct any defects promptly.

Despite clause 6.2:

1. (a)the Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Subscriber acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
2. (b)to the extent permitted by law, the Supplier does not warrant that:
   
   1. (i)the Subscriber’s or any Authorised User’s use of the Services will be uninterrupted or error-free; or
   2. (ii)the Services or the information obtained by the Subscriber through the use of the Services will meet the Subscriber’s requirements.

    

In performing the Services and conducting its business, the Supplier must act lawfully and comply with the requirements of all relevant Australian laws, ordinances, regulations, by-laws, orders and proclamations made or issued under such laws.

The Supplier may use tools, scripts, software and utilities (Tools) to monitor and administer the Services. The Tools will not collect, report or store Subscriber Data except to the extent necessary to troubleshoot issues in the Software, administer the Services, audit usage and review product performance. The Supplier may use anonymised Subscriber Data for analytical purposes.

1. (a)Subject to clause 6.7(b), if the Supplier gives the Subscriber access to or use of any Tools in connection with the Services, the Subscriber’s right to use those Tools is governed by the licence terms that the Supplier specifies for those Tools.
2. (b)If the Supplier does not specify licence terms for those Tools, the Subscriber has a non-transferable, non-exclusive, limited right to use those Tools solely to facilitate the Subscriber’s administration and monitoring of its use of the Services, subject to the terms of this agreement.
3. (c)The Supplier will not provide technical support or warranties for those Tools. The Subscriber’s right to use those Tools will terminate on the earliest of the Supplier giving notice, termination of this agreement, or the date on which the licence to use those Tools ends.

The Supplier is not liable for any failure or delay in performing its obligations under this agreement to the extent the failure or delay is caused by an event beyond the Supplier’s reasonable control. Such events include industrial disputes, utility or telecommunications failures, internet failures, acts of God, war, riot, civil disturbance, epidemic, malicious damage, compliance with law or government direction, fire, flood, storm, earthquake, lightning, equipment failure and default by suppliers or subcontractors.

The Supplier must notify the Subscriber of the event and its expected duration as soon as reasonably practicable.

The Subscriber will:

1. (a)provide the Supplier with:
   
   1. (i)all necessary co-operation in relation to this agreement; and
   2. (ii)all information reasonably required by the Supplier to provide the Services, including Subscriber Data, security access information and configuration services;

    

2. (b)comply with all applicable laws and regulations with respect to its activities under this agreement;
3. (c)carry out all other Subscriber responsibilities set out in this agreement in a timely and efficient manner;
4. (d)ensure that all Authorised Users use the Services in accordance with the terms and conditions of this agreement; and
5. (e)be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s Website and data centres (where applicable), and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Subscriber’s network connections or telecommunications links or caused by the internet.

The Subscriber must not, and must not permit, authorise, assist or enable any Authorised User or any other person to, whether directly or indirectly, access, store, distribute, transmit, introduce or otherwise make available through the Services any Virus or any material that:

1. (a)is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. (b)facilitates illegal activity; or
3. (c)is otherwise illegal or causes damage or injury to any person or property.

The Subscriber must not, and must ensure that each Authorised User does not, directly or indirectly, do any of the following, or permit, authorise, assist, facilitate or enable any other person or system to do any of the following:

1. (a)copy, reproduce, extract, download, store, modify, adapt, translate, publish, disclose, distribute, transmit, display outside the Services or create derivative works from any part of the Website, Services, Software, Supplier Materials, Subscriber Outputs or Supplier IP, except as expressly permitted by this agreement;
2. (b)access, use, inspect, analyse, derive, reconstruct, decompile, disassemble, reverse engineer or otherwise attempt to obtain or reproduce any Source Code, Object Code, algorithm, software logic, database structure, workflow, architecture, security feature or other technical component of the Website, Services, Software or Supplier IP;
3. (c)use the Website, Services, Software, Supplier Materials, Subscriber Outputs or Supplier IP to build, train, develop, test, improve, benchmark or supply any product, service, software, database, artificial intelligence system, template library, workflow, tool or system that competes with, is similar to, or may substitute for, the Website, Services, Software or Supplier Materials;
4. (d)use any Supplier Materials, Subscriber Outputs or information obtained through the Services to train, test, validate, improve or prompt any artificial intelligence system, machine learning model or automated decision system, except with the Supplier’s prior written consent;
5. (e)sell, resell, rent, lease, licence, sublicence, disclose, distribute, commercially exploit or otherwise make available the Website, Services, Software, Supplier Materials, Subscriber Outputs or Supplier IP to any person other than an Authorised User, except as expressly permitted by this agreement;
6. (f)allow any person who is not an Authorised User to access, use, observe, interact with or receive the benefit of the Website, Services or Software, whether through shared credentials, shared screens, remote access, recordings, integrations, outsourcing arrangements, service bureau arrangements or any other means;
7. (g)share Subscriber Outputs other than in the ordinary course of the Subscriber’s business, or in a way that gives any person access to the Website, Services, Software, Supplier Materials or Supplier IP beyond the relevant Subscriber Output itself;
8. (h)remove, obscure, alter or interfere with any proprietary notice, copyright notice, trade mark notice, watermark, metadata, access control, security feature or technical protection measure included in or applied to the Website, Services, Software, Supplier Materials, Subscriber Outputs or Supplier IP;
9. (i)obtain, or assist any other person to obtain, unauthorised access to the Website, Services, Software, Supplier Materials, Supplier IP or any related system, network, account or data;
10. (j)use, reuse or redeploy a project file for more than one physical address, or modify a project file so that it applies to a physical address other than the physical address for which that project file was first used, except to correct an address; or
11. (k)use the Subscription Plan in a way that is not permitted by this agreement, including by using features, projects, quotes, credentials or user access in an unauthorised manner.

Nothing in clause 7.3 prevents an Authorised User from viewing and using the Website, Services, Software and Supplier Materials through the ordinary user interface of the Services in accordance with this agreement. Nothing in clause 7.3 prevents the Subscriber from using Subscriber Outputs in accordance with clause 8.

The Subscriber will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services or Software and, in the event of any such unauthorised access or use, immediately notify the Supplier.

The Supplier may, without liability or prejudice to its other rights under this agreement, immediately suspend and/or disable the Subscriber’s access to the Services if the Supplier believes the Subscriber or any of the Subscriber’s Authorised Users have breached this clause 7.

The Subscriber acknowledges and agrees that the Supplier and its licensors own all right, title and interest, including all Intellectual Property Rights, in and to the Supplier IP. Except as expressly stated in this agreement, nothing in this agreement transfers, assigns or grants to the Subscriber or any Authorised User any right, title or interest in or to the Supplier IP.

As between the parties, the Subscriber owns the Subscriber Data. The Supplier does not claim ownership of Subscriber Data.

The Subscriber grants the Supplier a non-exclusive, royalty-free licence to host, copy, transmit, process, store, back up, use and otherwise deal with Subscriber Data to the extent necessary to provide, maintain, support, secure, improve and administer the Services and to perform the Supplier’s obligations under this agreement.

Subject to the Subscriber paying all amounts due under this agreement and complying with this agreement, the Supplier grants the Subscriber a non-exclusive, non-transferable licence to use, reproduce and provide Subscriber Outputs to the Subscriber’s clients, customers, consultants, contractors, government authorities and other persons in the ordinary course of the Subscriber’s business.

The licence in clause 8.4 does not permit the Subscriber or any Authorised User to:

1. (a)extract, copy or reuse Supplier IP from a Subscriber Output for any purpose other than using that Subscriber Output in the ordinary course of the Subscriber’s business;
2. (b)use Subscriber Outputs to create, train, develop or improve any competing product, service, software, artificial intelligence system, template library, workflow or database;
3. (c)remove or alter any proprietary notice, copyright notice, trade mark notice, watermark or metadata included in a Subscriber Output; or
4. (d)represent that the Subscriber owns any Supplier IP contained in or underlying a Subscriber Output.

The Subscriber receives only the rights expressly granted under this agreement. All other rights are reserved by the Supplier.

If the Subscriber or any Authorised User provides any suggestion, idea, enhancement request, recommendation, correction or other feedback concerning the Website, Services, Software or Supplier Materials, the Supplier may use that feedback without restriction or obligation to the Subscriber or any Authorised User.

The Subscriber acknowledges that a breach of clause 7 or this clause 8 may cause the Supplier loss that cannot be adequately compensated by damages. The Supplier may seek urgent injunctive, equitable or interlocutory relief in relation to any actual, threatened or suspected breach of clause 7 or this clause 8, without needing to prove special damage and without limiting any other rights or remedies available to the Supplier.

The Subscriber indemnifies the Supplier, its officers, employees, contractors, agents and licensors against all claims, actions, proceedings, liabilities, losses, damages, costs and expenses, including reasonable legal costs on a full indemnity basis, arising out of or in connection with:

1. (a)any breach of this agreement by the Subscriber, an Authorised User or any person for whom the Subscriber is responsible under clause 2.4;
2. (b)any unauthorised access to or use of the Website, Services, Software, Supplier Materials, Subscriber Outputs or Supplier IP caused or enabled by the Subscriber, an Authorised User or any person for whom the Subscriber is responsible under clause 2.4;
3. (c)any copying, extraction, reproduction, modification, disclosure, distribution, misuse or infringement of Supplier IP by the Subscriber, an Authorised User or any person for whom the Subscriber is responsible under clause 2.4;
4. (d)the Subscriber Data; and
5. (e)the Subscriber’s or any Authorised User’s use of the Website, Services, Software or Subscriber Outputs.

The indemnity in clause 9.1 is a continuing obligation, separate and independent from the other obligations of the Subscriber and survives termination of this agreement.

Nothing in this agreement excludes, restricts or modifies any consumer guarantee, statutory guarantee, right or remedy that cannot lawfully be excluded, restricted or modified, including under the Competition and Consumer Act 2010 (Cth) or the Australian Consumer Law.

Subject to clause 10.1 and to the extent permitted by law, the Supplier excludes all liability to the Subscriber, Authorised Users and their officers, employees, contractors and agents for any claim, action, damage, loss, liability, cost or expense arising out of or in connection with this agreement, the Services or the Software.

If the Supplier’s liability cannot be excluded but can be limited, the Supplier’s aggregate liability to the Subscriber and any person claiming through the Subscriber is limited to an amount equal to one month of Subscription Fees paid to the Supplier.

Despite any other provision of this agreement, the Supplier will not be liable to the Subscriber or any Authorised User in contract (including under any indemnity), tort (including negligence or breach of statutory duty) or otherwise, for any special, indirect, consequential or economic loss, damage or cost suffered by the Subscriber or any Authorised User under or in connection with this agreement.

Except as expressly provided in this agreement:

1. (a)the Subscriber assumes sole responsibility for results obtained from the use of the Services by the Subscriber, and for conclusions drawn from such use. The Supplier will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Subscriber in connection with the Services, or any actions taken by the Supplier at the Subscriber’s direction; and
2. (b)all warranties, representations, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.

This agreement will commence upon the Subscriber being given access to use the Services and will continue on a month-to-month basis, subject to payment of the Subscription Fees, until:

1. (a)subject to clauses 3.2(d), 3.2(e), 12.2(d) and 12.2(e), the Subscriber gives the Supplier written notice that it wants to terminate this agreement, in which case this agreement terminates at the end of the next calendar month after the Supplier receives that notice; or
2. (b)the Supplier terminates this agreement pursuant to clause 3.3(e); or
3. (c)without affecting any other right or remedy available to it, the Supplier terminates this agreement with immediate effect by giving written notice to the Subscriber if:
   
   1. (i)the Subscriber commits a material breach of any other term of this agreement which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of 10 days after being notified in writing to do so; or
   2. (ii)the Subscriber enters into liquidation or a winding-up, or, being a partnership, is dissolved, becomes insolvent, has a receiver, manager, administrator or provisional liquidator of its assets or any part of them appointed, has any final judgment against it unsatisfied for 30 days or execution levied against any of its assets or has any of its assets sold or seized pursuant to any mortgage or encumbrance.

    

On termination of this agreement for any reason:

1. (a)all rights to use the Services and the Software under this agreement will immediately terminate;
2. (b)the Supplier will give the Subscriber 30 days to access the then most recent back-up of the Subscriber Data in such a form as is reasonably required for the Subscriber to remove its Subscriber Data from the Supplier’s systems, provided that the Subscriber has, at that time, paid all Subscription Fees and other charges outstanding at and resulting from termination (whether or not due at the date of termination). The Subscriber will pay all reasonable expenses incurred by the Supplier in granting such access;
3. (c)all Authorised User passwords and user identifications will be cancelled; and
4. (d)any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination, will not be affected or prejudiced.

If this agreement is terminated part way through a month for which Subscription Fees have been paid in advance, the Subscriber will have no right to any refund of those Subscription Fees.

1. (a)The Subscriber must not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
2. (b)The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.

1. (a)The Supplier may change the terms of this agreement by publishing an updated version on the Website and giving notice to the Subscriber.
2. (b)A change may take effect immediately when the Supplier gives notice of the change, or on any later date stated in that notice, if the change:
   
   1. (i)is administrative, corrective or clarifying in nature;
   2. (ii)corrects an error or inconsistency;
   3. (iii)is required to comply with law, regulatory guidance or a direction of a government agency;
   4. (iv)is reasonably necessary for security, technical, operational or system integrity reasons;
   5. (v)relates to a new feature, functionality, service or optional item that the Subscriber is not required to use or acquire; or
   6. (vi)does not materially disadvantage the Subscriber.

    

3. (c)Any other change takes effect after a minimum 14 days after the Supplier gives notice of the change or on any later date stated in that notice, by default the first day of the next calendar month.
4. (d)If the Supplier gives notice of a change referred to in clause 12.2(c), the Subscriber may terminate this agreement by giving written notice to the Supplier before the change takes effect. If the Subscriber gives a termination notice under this clause 12.2(d), this agreement terminates on the date the Supplier receives that notice, or on any later date stated in the termination notice that is before the change takes effect.
5. (e)Clause 11.1(a) does not apply to a termination under clause 12.2(d).
6. (f)A change applies only prospectively and does not affect any right, obligation or liability that accrued before the change takes effect.

This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

Nothing in this agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other. Neither party has authority to act in the name of, on behalf of, or otherwise bind the other in any way, including by making any representation or warranty, assuming any obligation or liability, or exercising any right or power.

A notice to the Supplier under this agreement must be sent by email to support@buildingcompliance.systems. The Supplier may give a notice to the Subscriber by email to the address last notified by the Subscriber, by post to the Subscriber’s last notified address, or by a general notice published through the Website or the Services where the notice relates generally to the Services.

No failure or delay by the Supplier to exercise any right or remedy provided under this agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.

This agreement is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and any courts which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this agreement.