Utecture trade terms of use

APPLICATION OF TERMS

These Terms apply to your use of the Service (as that term is defined below). By clicking I agree:
you agree to these Terms; and
where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.

CHANGES

We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website.
Unless stated otherwise, any change takes effect from the date set out in the notice, but will only apply to Reports that you purchase on or after that date, and to the related Jobs.
Prior to purchasing a Report, you are responsible for ensuring you are familiar with the latest Terms. If you do not agree to the latest Terms at that time, you are not authorised to access and use the Service (other than to complete any Job for which you have purchased a Report prior to that date), and you must immediately stop doing so.
If you purchase a Report on or after the date on which the Terms are changed, you agree to be bound by the changed Terms for that Report and the related Job.

These Terms were last updated on 27/05.

INTERPRETATION

In these Terms:

Data means:

all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service; and
the content of the Reports that is derived from that data, content and information.

Fees means the applicable fees set out on our pricing page on the Website at [insert link], as may be updated from time to time in accordance with clause 7.2.
including and similar words do not imply any limit.

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Job means the use of the Service and the provision of a single Report for a single, standalone residential building. Secondary disconnected buildings are separate Jobs. Build variations or amendment requests following the provision of a Report are separate Jobs.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

a party includes that party’s permitted assigns.

Permitted Users means your personnel who are authorised to access and use the Service on your behalf in accordance with clause 5.3.

a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

personal information means information about an identifiable, living person.

personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Report means a cost indication report for a residential building project generated through your use of the Service, as further described on the Website, including all other information included in the report.

Sales Tax includes sales tax, use tax, goods and services tax, value added tax and equivalent tax payable under any applicable law.

Service means the service having the core functionality described on the Website, as the Website is updated from time to time.

Start Date means the date that you first access or use the Service.

Terms means these terms titled Utecture Trade terms of use.

Underlying Systems means the utecture Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.

utecture Software means the software owned by us (and our licensors) that is used to provide the Service.

We, us or our means the contracting entity specified in clause 12.6.

Website means the internet site at www.utecture.com, or such other site notified to you by us.

You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

PROVISION OF THE SERVICE

Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person. It is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or due to events outside our reasonable control.

To the extent permitted by law, you acknowledge and agree that:

any Report made available to you via the Service is derived from information provided by you, and you are solely responsible for ensuring that the information provided is accurate and complete; and the prices provided in the Reports are indicative only and are not binding on us, any supplier user of the Service or any other supplier of materials.

YOUR OBLIGATIONS

You and your personnel must:

use the Service and any Report in accordance with these Terms solely for: your own internal business purposes; and lawful purposes; and not resell or make available the Service to any third party, or otherwise commercially exploit the Service.

When accessing the Service, you and your personnel must:

not impersonate another person or misrepresent authorisation to act on behalf of others or us; correctly identify the sender of all electronic transmissions;
not attempt to undermine the security or integrity of the Underlying Systems; not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service; not attempt to view, access or copy any material or data other than: that which you are authorised to access; and to the extent necessary for you to use the Service in accordance with these Terms; and neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

Without limiting clause 2, no individual other than a Permitted User may access or use the Service. You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.
A breach of any of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of these Terms by you.
You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.

DATA

You acknowledge that: we may require access to the Data to exercise our rights and perform our obligations under these Terms; and to the extent that this is necessary, we may authorise a member or members of our personnel to access the Data for this purpose. You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 1. You agree that we may disclose:
Data relating to the Job (excluding personal information about your customers); and your name and contact details (which may include personal information about you or your personnel), to one or more supplier users of the Service where you have authorised this through the Service.

You acknowledge and agree that: we may: use Data and information about your and your personnels’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and supply Analytical Data to third parties; our rights under clause 4aii and iii above will survive termination or expiry of these Terms; and title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your data processor and/or agent and/or service provider (or the equivalent under applicable privacy and data protection laws) for the purposes of applicable privacy and data protection laws. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service and all Reports. You agree that we may store Data (including any personal information) in secure servers in Australia and New Zealand and may access that Data (including any personal information) in Australia and New Zealand from time to time.
You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

FEES

When ordering a Report via the Services, you must pay: the Fees; and where applicable and subject to us providing you with a valid tax invoice, Sales Tax on any taxable supplies, by credit card. We may increase the Fees at any time. An increase in Fees will only apply to Reports ordered by you after the date of the increase. Prior to ordering a Report, you are responsible for ensuring you are familiar with the then-current Fees.

INTELLECTUAL PROPERTY

Subject to clause 2, title to, and all Intellectual Property Rights in, the Service, the design and look-and-feel of the Reports, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service and Reports. If you provide us with ideas, comments or suggestions relating to the Service, Reports or Underlying Systems (together feedback): all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and we may use or disclose the feedback for any purpose.

WARRANTIES

Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms. To the maximum extent permitted by law:
the Service and Reports are provided as is and as available without warranty of any kind without limiting clause 2a, we do not warrant: that the pricing in a Report is accurate; or that any supplier will supply at the pricing in the Report; all conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty of merchantability or fitness for purpose) are expressly excluded; and we make no representation concerning the quality of the Service or Reports and do not promise that the Service or Reports will: meet your requirements or be suitable for a particular purpose; or be secure, free of viruses or other harmful code, uninterrupted or error free.

You agree and represent that you are acquiring the Service and Reports, and accepting these Terms, for the purpose of trade. The parties agree that: to the maximum extent permissible by law, no consumer protection laws apply to the supply of the Service, the Reports or these Terms; and it is fair and reasonable that the parties are bound by this clause3.

 
Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to: supplying the Service or Report again; and/or paying the costs of having the Service or Report supplied again.

LIABILITY

To the maximum extent permitted by law: you access and use the Service and Reports at your own risk; and we are not liable or responsible to you or any other person for any claim, damage, loss, liability, cost or expense in connection with these Terms, the Service, any Report, or your access and use of (or inability to access or use) the Service or any Report. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

To the maximum extent permitted by law and only to the extent clause 1 does not apply, our maximum aggregate liability under or in connection with these Terms or relating to any Job, whether in contract, tort (including negligence), breach of statutory duty or otherwise must not exceed an amount equal to the Fees (if any) paid by you for the Report on the relevant Job.

Without limiting clause 1, we are not liable to you under or in connection with these Terms, the Service or any Report for any: loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or consequential, indirect, incidental or special damage or loss of any kind. Clauses 1 to 10.3 do not apply to exclude or limit any liability of ours that cannot be excluded or limited by law. To the extent our liability cannot be excluded but can be limited, our liability is limited as set out in clause 10.2.

TERMINATION AND SUSPENSION

You may cease accessing and using the Service at any time.
Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your right to use the Service (or any part of it). If we suspend or terminate your right to use the Service, you must immediately cease using the Service and must not attempt to use it again.
Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

GENERAL

We are not liable to you for any failure to perform our obligations under these Terms to the extent caused an event that is beyond our reasonable control.
No person other than you and us has any right to a benefit under, or to enforce, these Terms.
For us to waive a right under these Terms, that waiver must be in writing and signed by us.
Subject to clause 5, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing helpdesk@utecture.com.
The company you are contracting with under these Terms is stated below.  These Terms will be construed in accordance with and governed by the law set out below, and the parties submit to the non-exclusive jurisdiction of the courts stated below in relation to disputes arising out of or in connection with these Terms, the Service or any Report.

Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 8, 8, 10, 11.3, 11.4 and 12.6, continue in force.
If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

Subject to clauses 1 and 7.2, any variation to these Terms must be in writing and signed by both parties. These Terms set out everything agreed by the parties relating to the Service and Reports, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service or Reports that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. The parties that it is fair and reasonable that the parties are bound by this clause 10.

You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent.