(a) This Agreement contains the terms under which ACADS-BSG Pty Ltd will supply its Software to the End User and will govern your access to and use of the Software. 

(b) You agree to the terms in this agreement when you:

(i)click the “I accept” tickbox upon opening our Software;

(ii)create a User account to enable you to access the Software; or

(iii)otherwise communicate to us, whether verbally or in writing, that you have agreed to be bound by the terms of this Agreement.

(c)By accepting the terms of this Agreement, you warrant that you have reviewed and accepted all of the terms of this Agreement,

(d)We reserve the right to modify or amend any part of this Agreement (Variation) at any time, without liability or further notice to you. Your continued use of the Software following any such Variation will constitute your acceptance of the Agreement as varied.

2.1 Software Licence Agreement

(a)If you are an officer, employee, agent or contractor of an Account Holder that has entered our Licence Terms, then you agree to be bound by our Licence Terms to the extent that they relate to your use of the Software.

(b)You acknowledge that if the relevant Account Holder has not provided you with the Licence Terms, it is your responsibility to request a copy of the Licence Terms from the Account Holder. By accepting the terms of this Agreement, you are acknowledging that you have received, read and agree to be bound by the Licence Terms. If you do not agree to be bound by the Licence Terms, you must not accept the terms of this Agreement.

2.2Policies

(a)We may from time to time introduce specific policies (Policies), such as our Privacy Policy, that govern and regulate the way certain aspects of the Software may be accessed and used.

(b)We will notify you of the introduction of any new Policy, after which it will be incorporated by reference into this Agreement. If you do not agree to the terms of a Policy, you must provide us with written notice that you do not agree to the terms of the relevant Policy. By accessing the Software following the implementation of a Policy or the amendment of an existing Policy, you are indicating your acceptance of the Policy and your agreement to comply with the terms of that new or amended Policy.

(c)You acknowledge that if you do not agree to the terms of a Policy or an amended Policy, our ability to provide access to the Software to you may be either limited or restricted entirely.

(a)In order to access our Software you will be required to create an account (User Account). As part of the creation of a User Account we will require you to provide your:

(i) full name;

(ii) current email address; and

(iii)contact telephone numbers.

(b)If you are unable to provide any information that is requested in the establishment of your User Account, our ability to provide you with access to the Software may be limited or restricted entirely.

(c)By creating a User Account you agree to:

(i)not  create an account with a false or misleading identity;

(ii)transfer or provide access to your User Account to any other person;

(iii)maintain the security of your user identification, password and personal information relating to your User Account;

(iv)notify us immediately in the event of any known or suspected unauthorised use of your User Account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of your password;

(v)take the necessary steps to prevent the continuance of any unauthorised use of your User Account including by contacting us and your Employer as soon as possible after becoming aware of the unauthorised access so that we may disable your User Account; and

(vi)update and keep your personal information accurate, including but not limited to all contact and billing information connected to your User Account.

(a)You agree that you will only access and use the Software in the course and scope of your employment or engagement with an Account Holder.

(b)We will provide recommended settings and technical specifications that should be adopted by you when using the Software. For example, you will need to ensure that you are using a compatible browser. You acknowledge that if you do not follow such recommendations, the functionality and usability of the Software may be adversely affected;

(c)You will not attempt to modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Software;

(d)You acknowledge that we may, from time to time, modify, suspend or discontinue, temporarily or permanently, the Software or any service to which it connects, with or without notice and without liability to you.

(e)You must not remove, alter or obscure any proprietary notice (including any notice of copyright or trade mark) of ours or our affiliates relating to the Software.

(f)Any feedback, comments, ideas, improvements or suggestions provided by you with respect to the Software shall be considered our sole and exclusive property and you agree the we are free to use, copy, modify, publish, or redistribute such comments and suggestions for any purpose, without any credit or any compensation to you.

(g)You acknowledge that we are not required to provide any technical support or other support to you directly, unless we are the subject of another agreement requiring us to do so. Notwithstanding this, in our discretion, we may from time to time offer functionality for support requests to be lodged and, where it is reasonable or practical for us to do so, respond to any support requests that you have made.

5.1Copyright

(a)The information and content contained within the Software (including its coding, imagery, wording, design, graphics and logos) is owned by us or granted to us under licence and is protected under the Copyright Act 1968 (Cth).

(b)Subject to clause 5.2:

(i)you may only retain copies of information and content on the Software if it is obtained incidentally to your viewing and if kept only for your own personal reference; and

(ii)under no circumstances are you granted a licence to reproduce or publish any information or content obtained through the Software for any commercial or non-private purposes.

5.2Templates

Notwithstanding clause 5.1, we grant you a non-exclusive, world-wide, royalty free licence to use all Reports:

(a)within your business for internal operational purposes;

(b)to provide information and data to your customers and clients, provided such use is within the ordinary course of your business; and

(c)in a manner otherwise consistent with the provisions of this Agreement.

5.3Trade marks

You acknowledge and agree that you are not granted any right or licence to any of our trade marks as displayed on the Software, or the trade marks of any third party displayed through the Software.

6.1Obligation of confidentiality

We each agree to:

(a)keep confidential and not use or disclose, other than as permitted by this agreement, all Confidential Information disclosed by on behalf of, or relating to the other party;

(b)take reasonable action necessary to maintain the confidential nature of the Confidential Information, including keeping all records of the Confidential Information under a reasonable degree of protection for Confidential Information of that nature; and

(c)return all documents and other materials in any medium in our possession, power or control which contain or refer to any Confidential Information, on the earlier of demand by the other party or the time the documents and other materials are no longer required for the purposes of this Agreement, except that one copy of such materials may be retained solely by the party's legal department or external lawyers for legal/archival purposes.

6.2Exceptions

The obligation not to disclose in clause 6.1 does not apply to Confidential Information:

(a)that we disclose to our affiliates and service partners as a result of delivering the Software to you and making our services available to you; or

(b)that is required to be disclosed by either of us under applicable law, or under compulsion of law by a court or Government agency, as long as the party disclosing the other party’s Confidential Information:

(i)co-operates (at the other party's expense) with the other party's efforts to take reasonably available legal measures to avoid or limit the extent of such disclosure;

(ii)discloses the minimum amount of Confidential Information required to satisfy the law or rules;

(iii)before disclosing any information, gives reasonable amount of notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence; and

(iv)notifies the court or Government Authority that it is the Confidential Information of the other party.

7.1Mutual warranties

We each warrant that as at the date of entering into this Agreement:

(a)we have the power and authority to enter into and perform our obligations under this Agreement;

(b)our obligations under this Agreement are valid and binding and enforceable against us in accordance with their terms;

(c)we have, and shall have at all material times, the right to grant the licences under this agreement on their terms and that those licences do not infringe the intellectual property rights of any third party;

(d)we will act reasonably in relation to the administration and performance of this agreement; and

(e)we will comply with the terms of any policies incorporated by reference into this Agreement (for example privacy policy);

(f)as far as we are aware, no additional authorisations, consents or approvals are necessary or required to enter into and give effect to this Agreement.

7.2User warranties

You warrant that you will:

(a)do all things reasonably necessary to assist us in fulfilling our obligations under this Agreement;

(b)in using the Software:

(i)comply with all applicable laws;

(ii)comply with all of our policies regarding access and use of the Software;

(iii)use reasonable security measures when using the Software;

(c)co-operate with any investigations by us relating to bugs, security problems, unauthorised use of the Software or suspected breaches of this Agreement or applicable law or on of our Policies;

(d)be responsible for your use of the Software and compliance with this Agreement and all of our Policies;

(e)use commercially reasonable efforts to prevent unauthorised access to, or use of, the Software;

(f)not use the Software:

(i)for unlawful, obscene, offensive or fraudulent content or activity; or

(ii)for the benefit of any third party (other than your Employer); and

(g)not allow or authorise anyone to use the Software in a manner that violates the terms of this agreement and the ACADS-BSG Pty Ltd policies.

7.3Limitation on warranties

(a)Except for the express warranties provided under this agreement and to the fullest extent possible by law, the Software is provided "as is" and all conditions, warranties, terms and obligations other than in this Agreement whether express or implied by statute, common law or otherwise are excluded.

(b)We do not warrant that the Software will be provided uninterrupted and error-free and we do not warrant that the Software will meet your individual requirements.

(c)You are responsible for ensuring that you have in place and have the right to use any computer hardware and software, equipment, electronic systems, networks and web browsers necessary to enable you to use the Software in accordance with this agreement. 

8.1Limitation of liability

(a)Subject to clause 8.1(b), we exclude all conditions and warranties which would otherwise be implied in this Agreement.

(b)If any law implies in this Agreement any condition or warranty and avoids or prohibits provisions in an Agreement which exclude, restrict or modify the application or liability under that condition or warranty, the condition or warranty will be deemed to be included in this Agreement to the minimum extent required (Non-excludable Condition).

(c)To the maximum extent permitted by law, our liability for any loss or damage however caused (including by negligence) or breach of a Non-excludable Condition is limited at our option to:

(i)supplying the Software;

(ii)paying the costs to have the Software supplied again; or

(iii)payment of $1,000AUD.

8.2Indemnity

(a)You are liable for, and indemnify us from and against, all loss or damage (including legal costs on a solicitor and client basis) incurred or suffered by us however caused in connection with:

(i)any breach of this Agreement by you;

(ii)any breach of a warranty given by you under this Agreement;

(iii)any act, error, omission or negligence by you; or

(iv)any alleged or actual infringement of a third party’s intellectual property rights in connection with you performing your obligations under this Agreement or in relation to any material.

(b)Each indemnity contained in this Agreement:

(i)is a continuing obligation; and

(ii)constitutes a separate and independent obligation of you from your other obligations under this Agreement.

(c)It is not necessary for us to incur any expense or make any payment before enforcing or making a claim under an indemnity.

(a)This Agreement shall remain in effect until terminated by either of us in accordance with the terms of this Agreement.

(b)We may, in our sole discretion, suspend or terminate this Agreement with or without prior notice to you, at any time and without any liability to you. Examples of where we may suspend or terminate this Agreement with you include, without limitation, where your relevant Account Holder has not paid any fees due and owing to us, where we expect you are misusing the Software or in the event that we reasonably believe that your user account has been compromised.

(c)You acknowledge that your access to and use of the Software may at any time be terminated or limited by your relevant Account Holder.

(d)Upon termination of this Agreement, you must cease all use of the Software.

(e)Termination of this Agreement will not limit any of our rights or remedies at law or in equity in case of breach by you of any of your obligations under this Agreement.

10.1Prohibition on proceedings

A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this agreement (Dispute) unless it has complied with this clause 10.

10.2Notification

A party claiming that a Dispute has arisen must notify the other party to the Dispute giving details of the Dispute.

10.3Attempt to resolve

During the 20 Business Day period after a notice is given under clause 10.2(Initial Period) each party must use its reasonable efforts to resolve the Dispute. All Dispute resolution discussions must be referred to and include the Account Holder, or a representative of the Account Holder with the appropriate authority to make decisions on behalf of and bind the Account Holder.

10.4Mediation

(a)If the parties are unable to resolve the Dispute within the Initial Period, the parties must refer the Dispute for mediation.

(b)The mediator will be a registered member of the Resolution Institute mutually agreed by the parties or, in default of agreement within a further period of seven days, appointed, at the request of either party, by the President for the time being of the Resolution Institute.

(c)The mediation will be conducted in Brisbane, Queensland Australia and in accordance with the guidelines laid down by the appointed mediator having regard to the principles of best practice in mediation generally. The parties will bear their own costs of preparing for and participating in the mediation.

(d)If the mediation does not conclude the Dispute within 10 Business Days of mediation and unless the parties agree to extend the mediation, either party may start court proceedings.

11.1Method

All notices, requests, demands, consents, approvals, offers, agreements or other communications (Notices) given by a party under or in connection with this agreement must be:

(a)in writing;

(b)signed by a person duly authorised by the sending party;

(c)directed to the recipient’s address in the [order form]; and

(d)hand delivered, sent by prepaid post or transmitted by email to that address.

11.2Receipt

A Notice given in accordance with this clause 11 is taken as having been given and received:

(a)if hand delivered at or before 4.30pm on a Business Day, on delivery, otherwise at 9.30am on the next Business Day;

(b)if sent by prepaid post:

(c)within Australia, on the second Business Day after posting;

(d)to or from a place outside Australia, on the seventh Business Day after the date of posting;

(e)if sent by email transmission, at the time that would be the time of receipt under the Electronic Transmissions Act 1999 (Cth).

12.1Assignment

(a)You cannot assign this Agreement without our prior written consent.

(b)We can assign this Agreement or transfer our rights and obligations under this Agreement to a transferee which accepts all our obligations under this Agreement and you consent to such novation.

12.2Amendment

This Agreement may only be amended by Agreement of the parties in writing.

12.3Force Majeure Event

Neither party is liable for any breach of its obligations under this document to the extent that the breach resulted from any event that is outside the reasonable control of the affected party and could not have been prevented by that party taking reasonable steps or overcome by the exercise of reasonable diligence and at a reasonable cost (including lack of supply, industrial action, fire, riot, war, embargo, pandemic, epidemic, civil commotion or act of God) provided that the affected party:

(a)promptly notifies the other party of the event (with appropriate details); and

(b)takes all reasonable steps to work around or reduce the effects of the event.

12.4Waiver

Waiver of a breach or of any right of election arising from a breach of this Agreement must be in writing and signed by the party granting the waiver.  A breach or any right of election arising from a breach of this agreement is not waived by any failure to or delay in the exercise, or partial exercise, of that right of election or any other right.

12.5Costs

Each party is responsible for its own costs (legal or otherwise) to negotiate and enter into this Agreement.

12.6No agency

This Agreement does not constitute any party the agent of another party or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of another.

12.7Further assurances

Each party agrees, at its own expense, on the request of another party, to do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including the execution of documents.

12.8Entire agreement

This Agreement sets out the entire agreement between the parties and supersedes any prior agreements or discussions or conduct by the parties. For the avoidance of doubt, this provision does not affect the incorporation of any policies or the Licence Terms pursuant to clause 2.

12.9Severance

Any provision of this Agreement which is illegal, void or unenforceable in a jurisdiction will, as to that jurisdiction, be ineffective to the extent of the illegality, voidability or unenforceability, but without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of that provision in another jurisdiction.

12.10Governing law and jurisdiction

(a)This Agreement is governed by the laws of Queensland, Australia. 

(b)The parties submit to the non‑exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.

13.1Definitions

Account Holder means the party that has entered the Licence Terms and that is granting you access as an End User.

Agreement means this document and includes any annexure, schedule and appendix to it, as well as incorporated policies.

Business Day means a day that is not a Saturday, Sunday or any other day that is a public holiday or bank holiday in the place where an act is to be performed or a payment is to be made.

Confidential Information means any information in whatever form (including verbal, or recorded on paper or by electronic means) relating to this Agreement or the subject matter of this Agreement, including all financial, operational and technical information, trade secrets, ideas, methods of operation, concepts, know how, processes and knowledge, but not including information that is or becomes known or generally available to the public, except if this happens because of a breach of any obligation of confidence (in which case it remains confidential).

Dispute has the meaning given in clause 10.1.

End User means the party entering into this Agreement with us to access the Software and is also referred to as “you”.

Government Authority means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

Licence Terms means the ACADS-BSG Pty Ltd Software Licence Terms.

Software means the building services design software provided by us to you.

Reports means any source text, documents, information, reports, graphs, tables or other content created or generated howsoever by the Software from or in connection with information that you have input into the Software.

13.2Interpretation

In interpreting this document, unless the context provides otherwise:

(a)a reference to we, us or our is a reference to ACADS-BSG Pty Ltd ACN 634 117 785;

(b)a reference to “you” or “your” is a reference to the End User that is accessing the Software under the authority of an Account Holder;

(c)words or expressions used in this document, which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Personal Property Securities Act 2009 (Cth) or the Corporations Act 2001 (Cth) have the same meaning in this document;

(d)the singular includes the plural and vice versa, and a gender includes other genders;

(e)another grammatical form of a defined word or expression has a corresponding meaning;

(f)a reference to a party means a party to this document and includes the party’s executors, administrators, successors, and permitted assigns;

(g)a reference to a person includes a firm, individual, corporation, association, government body or other corporate body;

(h)an obligation or liability assumed by two or more persons binds them jointly and severally and a right conferred on two or more persons benefits them jointly and severally;

(i)a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;

(j)if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

(k)a reference to a law or statute includes regulations under it, reenactments and replacements; and

(l)headings and table of contents are for ease of reference only and do not affect interpretation.