BUILDING CERTIFICATION SYSTEMS PTY LTD - SOFTWARE AS A SERVICE AGREEMENT
By checking the box to indicate your agreement with these terms, using this Website, the Services or downloading the Software you are deemed to accept this agreement and agree to be bound by this agreement. If you are entering into this agreement on behalf of a company or other legal entity you represent that you have the authority to bind such entity to the terms and conditions of this agreement and in such event ‘You’, ‘Your’ and ‘Customer’ used in this agreement will refer to such entity. If you do not have such authority, or if you do not agree to all the terms and conditions in this agreement you must not check the box indicating your agreement and may not use the Services or Software.
‘You’, ‘Your’ or ‘Customer’ refers to the individual or entity that is using the Services as supplied by Building Certification Systems Pty Ltd (ACN 121 687 241) (Supplier) through the Website in accordance with this agreement and this agreement is made between the Customer and the Supplier.
In this agreement unless the context otherwise requires:
Authorised Users: means those employees, agents and independent contractors of the Customer, as advised by the Customer to the Supplier, who are authorised by the Customer to use the Services and the Software.
Back-Up Policy: means the Supplier’s policy in relation to the back-up and recovery capabilities of the Services, as amended from time to time, available on the Website.
Business Day: means a day on which banks are open for general banking business in Sydney, excluding Saturdays, Sundays or public holidays.
Customer Data: means the data inputted or uploaded to the Website and documents generated using the Software by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services; and emails sent to the Website addressed to the Customer.
Normal Business Hours: means the hours of 9.00 am to 5.00 pm on a Business Day.
Services: means the subscription software services provided by the Supplier to the Customer 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 to access and use the Software for which the Customer has subscribed.
Software: means the online building inspection and certification software platform owned, managed and maintained by the Supplier and delivered via the Website, from time-to-time, including the following modules:
(a) BCS Office – as a web application;
(b) BCS Mobile – as a mobile application;
(c) BCS Council – as a mobile application; and/or
(d) BCS Pool – as a mobile application.
Standard Customer Support Services: means phone and email support regarding access to and use of the Services as set out on the Website.
Subscription Fees: means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out on the Website.
User Subscriptions: meansthe user subscriptions purchased by the Customer pursuant to clause 4.1 which entitle the Customer and Authorised Users to access and use the Services in accordance with this agreement.
Virus: means anything or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect:
(a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(b) access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
(c) the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: means https://www.certification.systems or any other website or mobile applications used to deliver the Services as notified by the Supplier from time to time.
2. USER SUBSCRIPTIONS
2.1 Subject to the Customer paying the Subscription Fees for the User Subscriptions, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the relevant Software.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services will not exceed the number of User Subscriptions it has purchased from the Supplier at any one time;
(b) it will not allow any User Subscription 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;
(c) each Authorised User will have his/her own user identification and a secure password which will be required to be used to gain access the Services; and
(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.
2.3 The rights provided under this clause 2 are granted to the Customer only, and will not be considered granted to any subsidiary or holding company of the Customer.
3. ADDITIONAL USER SUBSCRIPTIONS
The Customer may purchase additional User Subscriptions and the Supplier will, subject to the payment of the required Subscription Fee, grant access to the Services to such additional Authorised Users in accordance with the terms of this agreement.
4. FEES AND PAYMENT
4.1 The Customer will pay the Subscription Fees to the Supplier for the User Subscriptions by way of EFT or credit card, monthly in advance. All amounts and fees stated or referred to in this agreement, which are paid to the Supplier, are non-refundable.
4.2 The Supplier may increase Subscription Fees on 30 days’ notice to the Customer by publishing new Subscription Fee amounts on the Website.
4.3 If the Supplier has not received payment in advance, without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability to the Customer, suspend and/or disable the Customer or any Authorised User’s password and access to all or part of the Services and the Supplier is under no obligation to provide any or all of the Services while the relevant Subscription Fees remain unpaid.
5.1 The Supplier will, subject to payment of the Subscription Fees by the Customer, provide the Services and make the Software available to the Customer and the Authorised Users on and subject to the terms of this agreement.
5.2 The Supplier will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) where conducting scheduled maintenance, which the Supplier will endeavour to carry out outside of Normal Business Hours, on 48 hours’ notice (provided by email or a notification message within the Software); and
(b) in the event of unscheduled outages or emergency maintenance, in which case the Supplier will use commercially reasonable endeavours to limit the duration of unscheduled outages and restore access to the Services as soon as possible.
5.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with access to the Supplier’s Standard Customer Support Services during Normal Business Hours.
6. CUSTOMER DATA
6.1 The Customer will own all right, title and interest in the Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.2 The Supplier will follow its storage and archiving procedures for Customer Data as set out in its Back-Up Policy. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy will be for the Supplier to use commercially reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its Back-Up Policy. The Supplier will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data storage, maintenance and back-up).
6.4 The Supplier may use third party providers to sub-contract provision of the Services and to perform services related to storage, maintenance and back-up of Customer Data. These third party providers may be located in jurisdictions outside of Australia.
7. SUPPLIER'S OBLIGATIONS AND RIGHTS
7.1 The Supplier will provide the Services to the Customer in accordance with the terms of this agreement and with reasonable skill and care.
7.2 The Supplier is not liable to the Customer or any Authorised User to the extent of any non-conformance which 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.
7.3 Notwithstanding clause 7.2:
(a) to the extent permitted by law, the Supplier does not warrant that the Customer or any Authorised Users' use of the Services will be uninterrupted or error-free or that the Services or the information obtained by the Customer through the use of the Services will meet the Customer's requirements; and
(b) 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 The Supplier will at all times act in a lawful manner and comply with the requirements of the provisions of all relevant laws of Australia and with the relevant requirements of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such laws, in the performance of the Services and conduct of its business.
7.5 The Supplier may use tools, scripts, software and utilities (Tools) to monitor and administer the Services. The Tools will not collect, report or store any Customer Data, except as necessary to troubleshoot problems in the Software.
7.6 If the Supplier supplies you with access to or use of any Tools in connection with the Services, your right to use such Tools is governed by the licence terms that the Supplier specifies for such Tools, however if the Supplier does not specify licence terms for such Tools, you will have a non-transferrable, non-exclusive, limited right to use such Tools solely to facilitate your administration and monitoring of your use of the Services, subject to the terms of this agreement. The Supplier will not provide any technical support or offer any warranties for such Tools. Your right to use such Tools will terminate upon the earlier of the Supplier’s notice, termination of this agreement or the date that the licence to use such Tools ends.
7.7 The Supplier may compile aggregated statistical information related to the performance of the Services and may make such information publicly available provided that such information does not incorporate identifiable Customer Data. The Supplier retains all intellectual property rights in such information.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer will:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier,
in order for the Supplier to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner;
(d) ensure that all Authorised Users use the Services in accordance with the terms and conditions of this agreement; and
(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 Customer's network connections or telecommunications links or caused by the internet.
8.2 The Customer will not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services:
(a) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) that facilitates illegal activity; or
(c) in a manner that is otherwise illegal or causes damage or injury to any person or property,
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to immediately suspend and/or disable the Customer’s access to the Services if the Supplier believes the Customer or any of the Customer’s Authorised Users have breached this clause.
8.3 The Customer will not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means except, during the term of any User Subscriptions:
(i) to the extent expressly permitted under this agreement; or
(ii) for the purpose of utilising the customisation feature of the Software, for the use of document templates within and or for the Software.
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Services in order to build a product or service which competes with the Services; or
(d) license, sell, rent, lease, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and Software, other than as provided under this clause 8.
8.4 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services Software and, in the event of any such unauthorised access or use, immediately notify the Supplier.
9. INTELLECTUAL PROPERTY
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Software.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10. CUSTOMER INDEMNITY
10.1 The Customer indemnifies and holds harmless the Supplier against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer or Authorised Users' use of the Services and Software.
10.2 This release and indemnity survives termination of this agreement.
11. LIMITATION OF LIABILITY
11.1 To the extent permitted by law, the Supplier excludes all liability to the Customer, all Authorised Users and any partners, employees and agents of them in respect of any claim, action, damage, loss, liability, cost or expense the Customer may be able to claim against the Supplier or for which the Supplier is or may be liable for in connection with any claim for damage, loss, injury or death caused or contributed to by the use of, or the provision of the Services or Software or the act, omission or fault of the Supplier. Where the Supplier’s liability cannot be excluded, its aggregate liability to the Customer or any person claiming against the Supplier in respect of this agreement will be limited to the amount equal to one month of Subscription Fees paid to the Supplier.
11.2 Notwithstanding any other provision of this agreement, the Supplier will not be liable to the Customer or any Authorised User in contract (including under any indemnity), tort (including in negligence for breach of statutory duty) or otherwise, for any special, indirect, consequential or economic loss, damage or cost suffered by the Customer or any Authorised User under or in connection with this agreement.
11.3 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, 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 Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
12. TERM AND TERMINATION
12.1 This agreement will commence upon the Customer being given access to use the Services and will continue on a month to month basis, subject to payment of the Subscription Fees, until:
(a) the Customer notifies the Supplier, in writing, that it wants to terminate the agreement, in which case this agreement will terminate upon the expiry of next calendar month after such notice is received by the Supplier; or
(b) without affecting any other right or remedy available to it, the Supplier terminates this agreement with immediate effect by giving written notice to the Customer if:
(i) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 3 days after being notified in writing to make such payment;
(ii) the Customer 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
(iii) if the Customer enters into liquidation or a winding-up, 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 judgement 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.
12.2 On termination of this agreement for any reason:
(a) all rights to use the Services and the Software under this agreement will immediately terminate;
(b) the Supplier will give the Customer 30 days to access the then most recent back-up of the Customer Data in such a form as is reasonably required for the Customer to remove its Customer Data from the Supplier’s systems, provided that the Customer 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 Customer will pay all reasonable expenses incurred by the Supplier in granting such access;
(c) all Authorised User passwords and user identifications will be cancelled; and
(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.
12.3 If this agreement is terminated part way through a month for which Subscription Fees have been paid in advance, the Customer will have no right to any refund of those Subscription Fees.
13. FORCE MAJEURE
The Supplier will have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its control, including, without limitation, strikes, lock-outs or other industrial disputes or disturbances (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, enemy action, blockade, insurrection, riot, civil commotion, explosion or epidemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, lightning or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
14.1 The Supplier may change the terms and conditions of this agreement from time to time by publishing an updated version on the Website, in which case it will notify the Customer.
14.2 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.
14.3 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.
14.4 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.
14.5 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.
14.6 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.
14.7 The Customer will not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
14.8 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
14.9 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, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.10 All notices given to the Supplier under this agreement are to be given by email to firstname.lastname@example.org. The Supplier may give notice applicable to the Services by means of a general notice by email and notices specific to you by email or post.
14.11 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.
14.12 In this agreement, unless the contrary intention appears:
(a) words in the singular include the plural and vice versa;
(b) words importing a gender include any other gender, a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(c) monetary references are references to Australian dollars;
(d) when the day on which something must be done is a not a Business Day, that thing must be done on the following Business Day.
(e) a reference to:
(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;
(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;
(iii) “law” includes legislation, the rules of the general law, including common law and equity, and any judgment order or decree, declaration or ruling of a court of competent jurisdiction or governmental agency binding on a person or the assets of that person.
(a) In this clause 14.13, the expressions “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, "supplier", “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act).
(b) “GST” excludes any penalties or additional tax imposed in relation to the GST.
(b) Unless otherwise expressly stated, the consideration to be provided or payment obligation under this agreement is exclusive of GST.
(c) Responsibility for GST:
(i) Despite any other provision in this agreement, if GST is imposed on any supply made under this agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply.
(ii) The recipient must pay the amount referred to in clause 14.13(c)(i) in addition to and at the same time as payment for the supply is required to be made under this agreement.
(iii) The supplier will be responsible for any GST penalties, interest or additional tax imposed on the supplier and attributable to its act or omission.
(d) If a supply is made to which GST applies or is varied under this agreement, the supplier must provide to the recipient of the supply a valid tax invoice or adjustment note at or before the time of payment or variation.
(e) If the amount of GST paid or payable by the supplier on any supply made under this agreement differs from the amount of GST paid by the recipient, because the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the recipient will be adjusted accordingly by a further payment by the recipient to the supplier or the supplier to the recipient, as the case requires.