Small Builders Pty Ltd ["Small Builders"] [ACN 605 807 207] with registered address at the Master Builders Association of New South Wales Head Office, 52 Parramatta Road, Forest Lodge NSW 2037, Australia;
1. Unless the context otherwise requires, the following rules of interpretation applies to this Agreement:
2. In this Agreement the following definitions apply.
3. Unless the parties extend the term in writing, the Licensee may use the Services for the term specified in Item 1 of Annexure A ["Term"].
4. This Agreement automatically renews for the Term, unless the Licensee gives at least ninety (90) days' notice to Small Builders prior to the end of the Term, by reference to this clause, stating the Licensee does not wish for this Agreement to automatically renew.
5. If the Licensee fails to give notice under clause 4 and the Licensee wishes to terminate this Agreement, the Licensee must terminate this Agreement pursuant to clause 42.Right to Use
6. By accessing any part of the Small Builders' web site, including without limitation all sub-domains and related domains [collectively, the " Portal"], the Licensee agrees to be bound by the terms and conditions of this Agreement, as may be amended from time to time.
7. Small Builders may revise the terms and conditions of this Agreement at any time without notice to the Licensee. All changes are effective immediately when Small Builders posts them on the Portal. The Licensee is responsible for reviewing the terms and conditions periodically.
8. Small Builders owns and operates the Portal. Information, documents and content ["Content"] in the Portal includes, but is not limited to:
9. All Content appearing on the Portal are the sole property of Small Builders or are property that Small Builders is authorised to use. Small Builders allows the Licensee to use the Content in accordance with the terms and conditions of this Agreement.
10. The Licensee agrees to use the Content only for the Licensee's personal use and for no other purpose. The Licensee must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Portal, except as follows:
11. The Licensee must not:
12. Small Builders will provide the Services in accordance with this Agreement. Small Builders may at its sole discretion modify or update the features of the Services from time to time without prior notice.
13. The Services available to the Licensee will be those specified in item 2 of Annexure A.
14. If the Licensee wishes to increase, decrease or suspend the Services or any part thereof, the Licensee must give at least sixty (60) days' notice to Small Builders in the form of a written change request.
15. Small Builders may, at its absolute discretion, refuse to increase, decrease or suspend the Services. For the avoidance of doubt, if Small Builders refuses to increase, decrease or suspend the Services, the Licensee has no right to any remedy.Responsibility for Content
16. The Licensee agrees that the Licensee is solely responsible for the Content of all information created, used, downloaded and/or uploaded by the Licensee or any member of the Licensee's organisation.
17. The Licensee agrees not to communicate any message or material that:
18. Although Small Builders is not responsible for any of the Licensee's communications, Small Builders may delete at any time without notice to the Licensee any Licensee communications that is contrary to clause 17 of this Agreement.Licensee's Acknowledgments and Warranties
19. The Licensee acknowledges and warrants that:
a. Small Builders:
b. the Licensee is solely responsible for ensuring the accuracy, completeness and suitability of Small Builders' work and Services;
c. this Agreement outlines all the rights the Licensee has against Small Builders its affiliates, officers, directors, employees, consultants, and agents whether directly or indirectly related to this Agreement in contract, tort, statute, common law or otherwise;
d. the Licensee has entered into this Agreement freely and voluntarily;
e. the Licensee has been given every opportunity to seek, and if appropriate, has obtained prior independent professional advice regarding the terms and conditions of this Agreement and the suitability of the Services for the Licensee's purpose; and
f. the Licensee is solely responsible for obtaining independent third party professional advice to confirm the suitability of the Services.
20. Small Builders relies on the Licensee's acknowledgements, warranties, waivers, indemnities and other undertakings in this Agreement and Small Builders would not enter into this Agreement otherwise. In consideration for the Licensee's acknowledgements, warranties, waivers, indemnities and other undertakings, Small Builders can provide its Services to the Licensee at the substantially cheaper rates than would otherwise be charged for the Services.
21. For the avoidance of doubt, unless Small Builders negligently fails to follow the Services policy and procedure or the Licensee's complete and accurate directions, all correction or repeat work will be at the Licensee's cost and risk.
22. Small Builders retains ownership of all proprietary rights in:
a. Small Builders material developed under this Agreement including any policy, procedure, process map, checklist, template and other document;
b. the Services and in all trade names, trademarks and service marks associated or displayed with the Services; and
c. all documents and other works resulting or produced from the use of the Portal or the Services.
23. The Licensee must not remove, deface or obscure any of Small Builders' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services. The Licensee must not reverse engineer, reverse compile or otherwise reduce to human readable form any part of the Services, including any software associated with the Services.
24. The Licensee grants to Small Builders an irrevocable, non-exclusive, transferrable, royalty free and global license to use the Licensee's material and Intellectual Property to perform the Services and enhance Small Builders' business.
a. The Licensee warrants that it has all rights to grant the license under this clause. The Licensee will indemnify Small Builders for any breach of this warranty.
b. The Licensee must do all things necessary to effect the purpose of this clause including executing any instrument requested by Small Builders.
25. The Licensee understands and agrees that the Services are provided "As is."
26. To the maximum extent allowed by law, Small Builders expressly disclaims all warranties if any kind, express or implied, including without limitation any warranty:
a. of merchantability;
b. that the Services or output of the Services fit any particular purpose; or
c. of non-infringement.
27. Small Builders makes no warranty or representation:
a. regarding the results or output of the use of the Services;
b. regarding any transactions entered into through the Services;
c. that any favourable, required or desired output will result from the use of the Services; or
d. that the Services will be uninterrupted, timely, secure, accurate or error free.
28. The Licensee agrees to:
a. use the Portal and the Services at the Licensee's sole discretion and risk;
b. be solely responsible for any damage resulting to the Licensee from the use of the Services; and
c. at the Licensee's sole cost, indemnify, defend and hold harmless Small Builders, its affiliates, officers, directors, employees, consultants, and agents from any and all third party claims, liability, damages and/or costs arising from the:
i. Licensee's use of the Services;
ii. Licensee's breach of this Agreement; or
iii. infringement or violation by the Licensee or any other user of the Licensee's account of any intellectual property or other right of any person or entity.
Limitation of Liability
29. To the maximum extent permitted by law, Small Builders will not be liable to the Licensee or any other person for any special, incidental, indirect, exemplary or consequential damages whatsoever, including without limitation damages for loss of business profits, business interruption, loss of information or any other pecuniary loss or damage, arising out of the use or inability to use the Portal or the Services, whether arising in tort or negligence, this Agreement or any other basis in law, even if Small Builders has been advised of the possibility of such damages.
30. If the clause 29 is found to be illegal, void or otherwise unenforceable, Small Builder's cumulative liability arising out of or related to this Agreement will be limited to the amount actually paid by the Licensee for the Services for a period of one (1) calendar month. For the avoidance of doubt, the Licensee's remedy under this clause is the Licensee's only remedy.
31. Small Builders disclaims all responsibility for any loss or claim of any kind resulting from, arising out of or in any way related to:
a. errors in or omissions from any Content or any output from the use of the Services, including technical inaccuracies or typographical errors;
b. any third party web sites or content directly or indirectly accessed through the Portal;
c. the unavailability of the Portal;
d. any use of the Portal;
e. any use of any equipment or software in connection with the Portal; or
f. any reliance on the information contained on the Portal, including customer support information.
32. In consideration for the Licensee's use of the Portal and the Services, the Licensee must pay Small Builders the Fee specified in item 3 of Annexure A.
33. Small Builders may change the Fee at any time without prior notice to the Licensee.
34. All references to monies and payments in this Agreement are:
a. in Australian dollars; and
b. exclusive of any tax (including goods and services tax and value added tax), levy, penalty and government charge.
35. Any and all tax, levy, penalty, or government charge incurred or is likely to be incurred by Small Builders is payable by the Licensee. The Fee is to be increased by an amount equivalent to the tax, levy, penalty or government charge incurred or likely to be incurred.
36. Small Builders may at its absolute and unfettered discretion issue an Invoice to the Licensee at any time for payments owed or likely to be owed by the Licensee to Small Builders under this Agreement, whether or not Services has been performed.
37. The Licensee must give notice to Small Builders within five (5) days of receiving an Invoice if it disputes the invoiced amount or any part thereof.
a. On the 6th day of receiving an Invoice, the Licensee automatically confirms the accuracy of the Invoice and the Invoice immediately becomes a debt due and payable to Small Builders.
b. The parties will use their reasonable endeavours to resolve any disputed debt within two (2) business days from the Licensee giving notice to Small Builders in accordance with this Agreement.
c. The parties must refer any disputed debt that remains unresolved to dispute resolution. For the avoidance of doubt, the Licensee must pay Small Builders the amount of the disputed debt prior to referral to dispute resolution. If it is later determined that any moneys were overpaid by the Licensee, Small Builders will credit such overpayment against any future Invoices.
38. The Licensee must pay Small Builders the amount claimed in Invoice within seven (7) days of receipt of that Invoice. When relevant arrangements have been made, the Licensee agrees that Small Builders may charge the Licensee's credit card for payment of the Invoice.
39. Small Builders will issue to the Licensee a Tax Invoice that complies with the A New Tax System (Goods and Services Tax) Act 1999 when payment is received.
40. If the Licensee fails to make payments by the due date:
a. the Licensee must pay Small Builders interest on the outstanding amount at the rate of 12% per year accruing monthly; and
b. Small Builders may suspend Small Builders' obligations under this Agreement and the Licensee's access to the Portal and the Services. If Small Builders exercises its rights under this clause, the Licensee has no right to damage or loss arising from the suspension.
41. The Licensee agrees that in the event Small Builders is unable to collect the fees owed to Small Builders for the Services, Small Builders may take any other steps it deems necessary to collect the Fee from the Licensee and that the Licensee will be responsible for all costs and expenses incurred by Small Builders in connection with such collection activity, including collection fees, court costs and other legal fees.
42. The Licensee acknowledges that Small Builders has a no refund policy. For the avoidance of doubt, once payment of the Fee has been processed, the Licensee can no longer ask for a refund of the Fee.
43. The Licensee may terminate this Agreement by providing at least thirty (30) days prior written notice to Small Builders.
44. If the Licensee terminates this Agreement prior to the expiration of the Term, the Licensee must pay Small Builders liquidated damages equal to the sum of the total amount of the Fee in the three (3) Invoices prior to the notice date of termination. The parties acknowledge that the liquidated damages payable under this clause are a genuine pre-estimate of damages Small Builders would suffer from the Licensee's early termination of this Agreement.
45. Without prejudice to any right or remedy Small Builders may have against the Licensee for breach of this Agreement, Small Builders has the right to terminate this Agreement at any time without notice to the Licensee:
a. upon the happening of any of the following insolvency events:
i. the Licensee makes an admission of insolvency;
ii. a bankruptcy petition is filed against the Licensee;
iii. an administrator, controller, receiver or liquidator is appointed to take control of the Licensee's business;
iv. a winding up order is made by a court to wind up the Licensee's business;
v. the Licensee enters into an arrangement with its creditors; or
vi. if Small Builders is of the view that the Licensee does not have the financial capacity to comply with the obligations under this Agreement;
b. if the Licensee commits a breach of any provisions of this Agreement and the Licensee does not remedy the breach within a period of seven (7) days after receiving notice from Small Builders specifying the nature of the default; or
c. if the Licensee fails to pay Small Builders in accordance with the requirements of this Agreement.
46. Small Builders may terminate this Agreement for convenience by providing the Licensee not less than fourteen (14) days' notice. The Licensee is not entitled to any claim for loss of profits or any special, incidental or consequential damages arising out of or in connection with Small Builders exercising its right to terminate under this clause.
47. Upon termination of this Agreement, the license to use the Portal and the Services immediately terminates. The Licensee must immediately discontinue the use of the Portal and the Services.
48. For the avoidance of doubt, the Licensee is liable to Small Builders for the Fee up to the date of termination of this Agreement.
49. Clauses 10, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 38, 40, 41, 42, 43, 44, 48 and 50 survive any termination of this Agreement.
50. The Licensee acknowledges that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Small Builders, and its affiliates, and under such circumstances Small Builders, and its affiliates will be entitled to equitable relief, including, but not limited to, preliminary and permanent injunctive relief.
51. Save for the Licensee's obligation to pay Small Builders, neither party may incur any liability or be deemed in breach of this Agreement for any delays or failure to perform any obligation under this Agreement resulting from circumstances beyond the reasonable control of that party. The party affected by such circumstance must notify the other immediately in writing when such circumstance cases a delay or failure in performance and when the circumstance ceases to do so. If such circumstance continues for more than three (3) months, either party may terminate this Agreement by written notice to the other party.
52. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements or representations whether oral or in writing between the parties with respect to the subject matter of this Agreement.
53. This Agreement can only be amended by written agreement of the parties with reference to this clause.
54. Any failure of by Small Builders to enforce strict performance of any provision of this Agreement will not constitute a waiver of Small Builder's rights to subsequently enforce such provision or any other provision of this Agreement. For the avoidance of doubt, Small Builders can only waive its rights under this Agreement in writing with reference to this clause.
55. The rights and remedies of Small Builders provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
56. Small Builders may at its absolute and unfettered discretion subcontract any or all of the Services under this Agreement to any person Small Builders chooses to engage.
Relationship of the Parties
57. This Agreement does not constitute or imply any partnership, joint venture, agency or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither party has, nor may represent that it has, any authority to make any commitments on the other party's behalf.
58. A notice or other communication connected with this Agreement has no legal effect unless it is in writing. Notices must be served be served by hand, fax or post and addressed to the relevant person specified in Item 4 of Annexure A.
59. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party must not apply in interpreting this Agreement. The language in this Agreement will be interpreted as to its fair meaning and not strictly for or against any party.
60. All disputes of every kind and nature between the parties arising out of or in connection with this Agreement will first be submitted to arbitration with the New South Wales Master Builders Association or an independent person nominated by the New South Wales Master Builders Association as agreed between the parties.
61. If the parties do not agree with the resolution under clause 59, the parties are free to resolve the dispute by any means.
62. If any provision of this Agreement or the application thereof be invalid or unenforceable, such provision must be read down to the maximum extent valid and enforceable. The remainder of this Agreement will remain valid and be enforced to the fullest extent permitted by law.
Governing Law and Jurisdiction
63. This Agreement takes effect, is governed by and must be construed in accordance with the laws from time to time in force in New South Wales, Australia.
64. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
65. The Licensee cannot assign or transfer this Agreement by operation of law or otherwise without the prior express written consent of Small Builders with reference to this clause.
By John Dela Cruz
Small Builders Pty Ltd ["Small Builders"]
[ACN 605 807 207]
For an on behalf of
[Insert Licensee Name] ["Licensee"]
[ABN [Insert ABN]]
Refer to clause 3
Refer to clause 13
Refer to clause 32
Refer to clause 57
|For Small Builders||
For the Licensee
|John Dela Cruz||
|Master Builders Association of New South Wales Head Office, 52 Parramatta Road, Forest Lodge NSW 2037, Australia||
|0414 325 080||