Terms of Service

BUILDPASS PTY LTD ACN 652 324 635

TERMS OF SERVICE

INTRODUCTION

BuildPass is a digital platform to effectively manage building projects and construction sites. Use of BuildPass is subject to these Terms of Service.

DEFINITIONS

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ACN means Australian Company Number.

(b) Account means a registered account with BuildPass.

(c) Administrator any User authorised to administer BuildPass on behalf of the Customer, as appointed by the Customer from time-to-time

(d) BuildPass means the “BuildPass” SaaS digital construction management platform owned and operated by the Company, and accessible at the Site and/or Mobile Application Marketplace.

(e) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Victoria, Australia.

(f) Company means BuildPass Pty Ltd ACN 652 324 635.(

g) Confidential Information means any written or verbal information that:

• (i) Any information deemed as confidential under these Terms of Service;
• (ii) A party informs the other party that it considers it confidential and/or proprietary;
• (iii)A party would reasonably consider to be confidential in the circumstances; and
• (iv) Is personal information within the meaning of the Privacy Act and GDPR.

but does not include information that a party can establish:

• (v) Was in the public domain at the time it was given to that party;
• (vi) Became part of the public domain, without that party’s involvement in any way, after being given to the party;
• (vii) Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
• (viii) Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(h) Contractor means a business engaged by the Customer to complete work for a Project.

(i) Customer means the entity that BuildPass is licensed to for management of Projects.

(j) Fee means any fee charged by the Company for access to and use of BuildPass.

(k) GDPR means the EU General Data Protection Regulation 2016/679.

(l) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(m) Implementation Services means any services provided by the Company to the Customer for the installation and deployment of BuildPass, as agreed between the parties from time-to-time.

(n) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

(o) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

(p) Link means the unique link to download BuildPass and connect to a Project.

(q) Mobile Application Marketplace means an online marketplace for access to the BuildPass and other applications for mobile devices, such as the App Store.

(r) Moral Rights means:

• (i) Moral rights pursuant to the Copyright Act 1968 (Cth); and
• (ii) Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

(s) Payment Gateway means Stripe or such other payment system the Company may adopt for payment of Fees from time-to-time.

(t) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at https://www.buildpass.com.au/privacy.

(u) Privacy Act means the Privacy Act 1988 (Cth).

(v) Project means a construction project that is created under a Customer’s Account

(w) Promotion means any promotional discount or benefit made available to Users by the Company from time-to-time.

(x) Site means the Company’s website found at https://www.buildpass.com.au/, or such other URL used by the Company from time-to-time.

(y) Staff User means an individual authorised to access a Customer’s Account.

(z) Staff User Limit means the maximum number of Staff Users available under a Customer’s Account, as set by the Subscription Level.

(aa) Stripe means the cloud payments platform accessible at https://www.stripe.com/.

(bb) Subscription Fee means a Fee charged by the Company in advance on a periodical basis in accordance with the Subscription Level.

(cc) Subscription Level means the tier of subscription plan available to the Customer with such features described on the Site, within BuildPass or as otherwise agreed between the Customer and the Company.

(dd) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(ee) User means any registered user of BuildPass and includes a Customer, Staff User, Contractor and Worker.

(ff) User Data means all information, data, documents, and other such materials entered or uploaded into BuildPass by a User but does not include derivative data or analytics.

(gg) Worker means an employee or independent contractor of the Contractor that performs work on a Project and, in the case of an independent contractor, any of their own workers.

(hh) Australia SMS Messaging Terms means the additional terms published by the Company that apply to SMS, MMS and related messaging in Australia, as amended from time to time.

(ii) BuildPass Sender ID means an alphanumeric, branded or other sender identifier controlled, registered, supplied or approved by the Company, including "BuildPass", "BUILD PASS" or any replacement or alternative sender identifier.

(jj) Commercial Electronic Message has the meaning given under applicable spam, e-marketing and electronic messaging laws, including the Spam Act 2003 (Cth).

(kk) Customer Message means a communication created, entered, imported, configured, scheduled, triggered, authorised or otherwise caused to be sent by a Customer or User through BuildPass.

(ll) Emergency Message means a Customer Message created and sent through the Company's dedicated emergency messaging module.

(mm) Essential Security Message means a system-generated message produced through BuildPass functionality specifically designated for authentication, identity verification, fraud prevention, account security or delivery of a genuine one-time password or passcode.

(nn) Messaging Services means SMS, MMS, email, push, in-app and other communication functionality made available through BuildPass or through third-party communication providers integrated with BuildPass.

(oo) Non-Critical Message means a Customer Message other than an Emergency Message or Essential Security Message.

(pp) Sender ID means an alphanumeric, branded or other sender identifier used to identify the apparent sender of an SMS or similar message.

(qq) Suppression Record means a workflow opt-out, unsubscribe request, do-not-contact request, invalid-number record or other messaging preference or restriction recorded or applied by the Company in relation to a recipient, Project, Customer, workflow or message category.

(rr) Workflow Message means a Customer Message generated, scheduled or triggered by a workflow configured in BuildPass.

(ss) Workflow Opt-Out means a preference recorded by the Company indicating that a recipient does not wish to receive one or more specified Workflow Messages, categories of Workflow Messages or other applicable non-critical project notifications.

1 AGREEMENT

1.1 The licence granted under these Terms of Service shall be ongoing until terminated in accordance with the terms of these Terms of Service.

1.2 The User agrees that all use of BuildPass is subject to these Terms of Service and must immediately cease to use BuildPass if the User can no longer agree or adhere to these Terms of Service.

1.3 The Company may suspend an Account or restrict the access of any User that breaches these Terms of Service.

2 USING BUILDPASS

2.1 Account

(a) To use BuildPass, the User must have set up an Account.

(b) The User must provide accurate and complete information when setting up an Account and, if necessary, update their Account to ensure that such information is maintained as current for the duration of these Terms of Service.

(c) BuildPass may permit or deny the User an Account with BuildPass in its absolute discretion (although the User may generally obtain an Account by registering with BuildPass and accepting these Terms of Service).

2.2 Staff Users & Administrator

(a) The Customer may in its discretion invite Staff Users to access its Account, subject to the Staff User Limit.

(b) The Customer shall authorise one or more Staff Users to be an Administrator who shall have the power to:

• (i) Authorise Users to access the Customer’s Account in their absolute discretion; and
• (ii) Manager Users’ individual access permissions to an Account.

(c) The Customer agrees that it is responsible for the conduct of each User authorised by the Customer and/or Administrator to access the Customer’s Account, who each must agree to and comply with these Terms of Service.

(d) The Company has no liability to the Customer for any User it authorises that:

• (i) Imports or exports any data to or from BuildPass;
• (ii) Shares any data or information contained therein; and/or
• (iii) Accesses any User Data via BuildPass

2.3 Workers

(a) The Contractor shall be primarily responsible for adding and managing Workers, who each must agree to and comply with these Terms of Service.

(b) The Contractor will receive a Link when invited to a Project by the Customer, and the Contractor is responsible for sharing this Link with Workers to register with BuildPass and connect to a Project.

(c) The Contractor shall only share the Link with Workers and not unrelated third parties.

(d) The User acknowledges that as a condition to working on site for a Project they must register with BuildPass and check-in by scanning the relevant QR code (without limitation to any other conditions the relevant Customer may set).

2.4 Features

The Company shall provide the User with access to and use of the features as agreed between the parties and provided within BuildPass from time-to-time.

2.5 Projects

(a) The primary feature of BuildPass is to create and manage Projects.

(b) The Customer may create and manage multiple Projects under its Account and may invite and add to Projects as many Contractors and Workers as necessary.

(c) For clarity, there shall be no limit on the number of Projects that can be managed under a single Account, and/or the number Contractors or Workers linked to a single Project.

(d) The Customer shall have complete discretion to manage Projects via its Account, including ceasing or archiving Projects, and any Contractor or Worker linked to a Project, which may in turn affect the accessibility to BuildPass for other Users.

2.6 Standard Documents

(a) The Company may provide access to template documents, forms, and checklists for use by Users.

(b) The Company may add, remove and/or vary standard documents it provides via BuildPass from time-to-time in its absolute discretion.

(c) The User must review and exercise due diligence when using standard documents provided by the Company, and in particular ensure that such documents are suitable for use for the intended purpose having regard to the particular circumstances.

(d) The Company accepts no responsibility for any loss, damage or injury suffered by the User from reliance on standard documents made available via BuildPass.

2.7 Messaging Features

(a) Messaging availability

The Company may make Messaging Services available through BuildPass, including SMS, MMS, email, push notifications, in-app notifications, workflow messages, broadcast messages, project notifications, emergency messages and authentication messages.

(b) Additional messaging terms

The use of Messaging Services may be subject to additional terms, policies, provider requirements and product-specific conditions. In Australia, use of SMS, MMS and related messaging is also subject to the Australia SMS Messaging Terms. In the United States, use of SMS, MMS and related messaging is also subject to the US SMS Messaging Terms published by the Company, as amended from time to time.

The Customer must ensure that each User who accesses or uses the Messaging Services complies with these Terms of Service, the Australia SMS Messaging Terms or US SMS Messaging Terms (as applicable) and any other applicable terms.

For SMS messages sent to United States telephone numbers: message frequency may vary; message and data rates may apply. Reply STOP to cancel. Reply HELP for help. Text START to resubscribe. Consent to receive text messages is not a condition of purchasing any goods or services. After an opt-out, no further text messages will be sent to that number, except a single opt-out confirmation, messages sent for emergency purposes as permitted by law (including Emergency Messages), and one-time messages sent in direct response to a request the recipient initiates, such as a verification code. Mobile telephone numbers, text messaging originator opt-in data and SMS consent status will not be sold, rented, or shared with third parties or affiliates for marketing or promotional purposes, other than disclosure to telecommunications carriers, messaging providers and service providers solely to deliver, route, secure, monitor and support SMS messages.

(c) BuildPass Sender ID

BuildPass's shared Sender ID has been approved for use under the Australian SMS Sender ID Register.

The Company may deliver messages using a BuildPass Sender ID, a telephone number, a shared messaging route or another sender-identification method selected by the Company or its providers.

All rights and interests in a BuildPass Sender ID remain with the Company or the applicable rights holder. The Customer must not use, copy, register, imitate or represent ownership of a BuildPass Sender ID except through the Messaging Services and as authorised by the Company.

(d) No customer-owned Sender IDs at launch

Unless the Company expressly agrees otherwise in writing, Customer-owned Sender IDs are not available through BuildPass.

The Company may introduce Customer-owned Sender IDs in the future, subject to approval by the Company, approval by relevant telecommunications or messaging providers, applicable registration requirements, additional terms and any applicable fees.

(e) Customer responsibility for Customer Messages

The Customer is responsible for each Customer Message that it or its Users create, enter, import, configure, schedule, trigger, authorise or otherwise cause to be sent through BuildPass.

Without limitation, the Customer is responsible for:

• (i) the content of each Customer Message;
• (ii) the purpose for which it is sent;
• (iii) the selection, accuracy and relevance of recipients;
• (iv) the timing, frequency and volume of messages;
• (v) the configuration and operation of workflows;
• (vi) obtaining and maintaining any consent, permission, authority or lawful basis required to collect, use and disclose recipient contact details and send the message;
• (vii) identifying the Customer and relevant Project in the message where required;
• (viii) complying with recipient preferences, opt-outs, unsubscribe requests and Suppression Records;
• (ix) responding to complaints and opt-out requests received directly by the Customer or its Users; and
• (x) ensuring its use of the Messaging Services complies with all applicable laws, including the Spam Act 2003 (Cth), the Telephone Consumer Protection Act (TCPA) where messages are sent to United States telephone numbers, privacy laws, workplace laws, telecommunications requirements and any requirements issued by ACMA or the FCC (as applicable).

(f) BuildPass role

The Company provides messaging infrastructure, platform functionality, provider integrations, sender-ID functionality, preference-management tools, suppression tools and related compliance controls.

The Company does not provide legal advice and is not required to review or approve every Customer Message before it is sent. The availability of a messaging feature, template, category or workflow does not mean that a particular message is lawful or permitted.

Nothing in this clause excludes or transfers any legal obligation imposed directly on the Company.

(g) No marketing unless expressly approved

Unless the Company expressly agrees otherwise in writing under separate terms, the Customer must not use the Messaging Services to send marketing, advertising, promotional or other commercial messages.

The Customer must not use the Messaging Services to advertise, offer or promote goods, services, suppliers, events, subscriptions, memberships, business opportunities, employment opportunities unrelated to current Project activities, fundraising, donations, political campaigns or any other commercial or promotional activity.

A message that has an operational, project, safety, compliance or account-related purpose may still be prohibited if it also contains marketing or promotional content.

(h) Recipient details and authority

Where a Customer or User enters, imports, selects or otherwise provides a telephone number, email address or other contact detail for a recipient, the Customer warrants that:

• (i) it has authority to provide that information to the Company;
• (ii) it has authority to use the information for the relevant messaging purpose;
• (iii) the information is accurate and current to the best of the Customer's knowledge; and
• (iv) the recipient has a current and legitimate connection to the relevant Customer, Project or message purpose.

A person's previous induction, historical attendance, previous employment, previous contracting relationship or presence in a contact list does not, by itself, establish that they should receive a Customer Message.

(i) Sender identification

The Customer must ensure that Customer Messages clearly and accurately identify the Customer that authorised the message and, where relevant, the Project or site to which the message relates.

The appearance of a BuildPass Sender ID does not mean that BuildPass authored, reviewed, approved or endorsed the Customer Message.

(j) Preferences, opt-outs and suppression

The Company may provide and administer technical functionality through which recipients can manage preferences, opt out, unsubscribe or request not to receive certain messages.

The Company may apply Suppression Records at different points in the messaging process depending on the functionality being used, including when a recipient list is created, when a message is processed, when a workflow is created or updated, or when another suppression process is run.

The Company may exclude a recipient from a Customer Message without first obtaining the Customer's or sending User's approval.

The Company will use reasonable endeavours to inform the Customer or relevant Users that a recipient has opted out or has been suppressed, including through the BuildPass interface, recipient records, send reports, workflow reports or other notifications. Preference and suppression information may not be displayed to the Customer or a User in real time.

For Workflow Messages, recipient preferences and Suppression Records may be assessed when the workflow is created, configured or updated. Unless the Company makes runtime suppression available for the relevant workflow, the Customer is responsible for reviewing and updating workflows to ensure that recipient selections remain current and appropriate.

The Customer and its Users must not override, avoid or work around a Suppression Record. The Customer must promptly notify the Company or record the request through BuildPass where a recipient communicates an opt-out, unsubscribe or do-not-contact request directly to the Customer or a User.

(k) Non-Critical Messages, Emergency Messages and Essential Security Messages

Non-Critical Messages are subject to applicable preferences, opt-outs and Suppression Records.

An Emergency Message is only a Customer Message created and sent through the Company's dedicated emergency messaging module. A message sent through a workflow, broadcast, general SMS feature or ordinary notification feature is not an Emergency Message merely because it relates to safety, compliance, site access, permits or urgency.

Essential Security Messages may only be generated through BuildPass functionality specifically designated for authentication, identity verification, fraud prevention, account security or one-time passcodes.

A Workflow Opt-Out does not necessarily prevent an Emergency Message or Essential Security Message from being sent where the message is necessary and permitted by law. However, the Company may still suppress, delay or refuse an Emergency Message or Essential Security Message where it reasonably considers this necessary for legal, security, provider, recipient-protection or platform-integrity reasons.

The Customer must not use the emergency module or Essential Security Message functionality to avoid an opt-out or Suppression Record.

(l) Emergency Module access

The Emergency Module may be available to Users with access to the relevant functionality.

The Customer is responsible for ensuring that Users only use the Emergency Module for genuine emergency, safety or security communications and that Users are appropriately authorised and trained.

The Company may introduce additional Emergency Module permissions, confirmations, warnings, audit requirements, usage restrictions or approval controls at any time.

(m) Compliance controls

The Company may monitor, review and process messaging activity, message content, sender information, recipient information, delivery information, workflow settings, preferences, complaints and related records for compliance, security, fraud prevention, spam prevention, abuse prevention, sender-ID protection, provider compliance, service quality and enforcement of these Terms.

The Company may, without liability and with or without prior notice, classify, restrict, suspend, throttle, reject, delay, modify, reroute or refuse to send any message, recipient list, Sender ID, workflow, messaging feature or messaging activity where the Company reasonably believes that it:

• (i) may breach applicable law;
• (ii) may breach provider requirements;
• (iii) may breach these Terms, the Australia SMS Messaging Terms or another Company policy;
• (iv) may expose the Company, its providers, Customers, Users or recipients to legal, regulatory, security, fraud, reputational, deliverability or operational risk; or
• (v) may negatively affect platform integrity or message deliverability.

The Company may also add, prepend, append or require sender identification, Project identification, unsubscribe information, preference links, footers, tracking, compliance notices or other information reasonably necessary for legal, provider, operational or platform reasons.

(n) Suspension of Messaging Services

The Company may suspend or disable all or part of the Messaging Services for a User, Project, workflow, Customer or Account where the Company reasonably believes there has been a serious, repeated, reckless, deliberate or systemic breach of this clause, the Australia SMS Messaging Terms, applicable law or provider requirements.

Where reasonably practicable, the Company may provide a warning or remediation opportunity before suspension. The Company is not required to do so where immediate action is reasonably necessary to protect recipients, the Company, other customers, providers, Sender IDs, platform integrity or deliverability.

Reinstatement may be conditional on the Customer correcting recipient data, addressing complaints, honouring opt-outs, changing workflows, restricting User permissions, completing training, providing evidence of authority or consent, or implementing other reasonable remedial measures.

(o) Delivery disclaimer

The Company does not guarantee that any message will be accepted, transmitted, delivered, received, opened, read or acted upon.

A message may be suppressed, rejected, delayed, filtered, blocked, misdirected or not delivered because of recipient preferences, Suppression Records, invalid or reassigned numbers, carrier filtering, provider restrictions, sender-ID requirements, network conditions, device settings, technical failures, security controls or other factors outside the Company's reasonable control.

The Customer must not rely on the Messaging Services as the sole means of communicating emergencies, evacuations, serious safety incidents, immediate site closures, legal notices, critical site-access instructions or any other matter where failure or delay in receiving a message could cause material harm.

(p) Indemnity

Without limiting any other indemnity in these Terms, and to the extent permitted by law, the Customer indemnifies the Company and its officers, employees, contractors and agents against third-party claims, provider charges, reasonable investigation costs, reasonable legal costs and any regulatory loss or penalty that is lawfully recoverable from the Customer, to the extent arising from:

• (i) a breach of this clause or the Australia SMS Messaging Terms by the Customer or its Users;
• (ii) an unlawful, misleading, unauthorised or prohibited Customer Message;
• (iii) the content of a Customer Message;
• (iv) the Customer's recipient selection;
• (v) the use of stale, incorrect or unauthorised recipient lists;
• (vi) failure to obtain or retain required consent, permission or authority;
• (vii) failure to honour or communicate an opt-out, unsubscribe request or do-not-contact request;
• (viii) circumvention of a Suppression Record;
• (ix) misuse of a Sender ID;
• (x) misuse of the Emergency Module or Essential Security Message functionality; or
• (xi) inaccurate or incomplete information supplied by the Customer.

This indemnity does not apply to the extent the relevant loss was caused by the Company's breach of law, breach of contract, negligence, fraud or wilful misconduct.

(q) Conflict

If there is any inconsistency between this clause and the Australia SMS Messaging Terms, the Australia SMS Messaging Terms prevail in relation to Australian SMS, MMS and related messaging.

3 FEES

3.1 Subscription Fee

(a) The primary Fee shall be the Subscription Fee, which is payable in advance for the subscription period elected by the Customer.

(b) For clarity, the Company offers subscriptions of different levels and of varying lengths including (without limitation) monthly and annual.

(c) The Customer agrees to make payment in advance for the Subscription Fee due at such frequency, or on such dates, as the Customer has subscribed for in accordance with its Subscription Level.

(d) The Customer can manage and update its subscription preferences at any time within its Account or providing written notice to the Company.

(e) Where applicable, Promotions may affect the applicable Subscription Fee to be paid by the Customer which may include free trial periods.

3.2 Subscription Renewals

(a) Subscription Fees will automatically renew on an ongoing basis and are charged to the Customer at the end of the agreed subscription period for an additional period equal in length on the same terms, unless and until cancelled by the Customer.

(b) The Customer will not receive a refund for the Subscription Fees already paid for their current subscription period and will continue to receive access to the BuildPass consistent with their subscription until the end of the current subscription period.

3.3 Variation to Fees

(a) The Company may vary the Subscription Fee, or introduce new Fees, by giving the Customer written notice, and the Customer must agree to the new Fees in order to continue using BuildPass, subject to any active subscription period in which case the new Fees will only apply after the end of current billing cycle.

(b) If the Customer does not accept a change to any Fees, then it may terminate these Terms of Service and stop using BuildPass.

3.4 Payment, Currency and Invoices

(a) All Fees shall be made via the Payment Gateway or in such other manner as the Company may direct from time-to-time.

(b) All Fees are payable in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars).

(c) GST is applicable to any Fees charged by the Company. Unless expressed otherwise, all Fees shall be deemed inclusive of GST.

(d) The Company will provide the Customer with a Tax Invoice for any payments.3.5 RefundsNo refunds on Fees are offered except where required under law or as agreed at the absolute discretion of the Company.

3.6 Late Payment

(a) If the Customer does not pay the full Fees as required, the Company may suspend the Customer’s access to their Account.

(b) If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may delete the Customer’s Account without notice and terminate these Terms of Service.

(c) Where a Customer’s Account is suspended or terminated pursuant to this clause 3.6, this may result in the loss of access and/or functionality to BuildPass for any User connected to the Account.

(d) The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer’s Account where Fees are outstanding in accordance with this clause 3.6.4

USER DATA

4.1 The Company agrees to treat all User Data as Confidential Information under these Terms of Service, however the User agrees that the Company is not responsible for the maintaining the confidentiality of any User Data by Users.

4.2 By uploading User Data, the User acknowledges and accepts that such User Data, which may include personal information, may be shared with and accessible by other Users, especially the Customer and Staff Users associated with the relevant Project.

4.3 The User warrants that any User Data uploaded to BuildPass about an individual is provided with that individual’s consent. Under no circumstances will the Company be responsible to the User for another User’s use of personal information made available within BuildPass.

4.4 The Company accepts no liability for the content of User Data.

4.5 The User is responsible for the accuracy, quality and legality of any User Data uploaded to BuildPass.

4.6 The User is liable for any intentionally or recklessly erroneous, corrupted or false data uploaded to BuildPass and indemnifies the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with that data.

4.7 The User grants the Company an immediate, worldwide, royalty-free license to use and incorporate the User Data within BuildPass, for the purposes of providing BuildPass.

4.8 Subject to the Privacy Policy, these Terms of Service and any applicable Additional Terms, the Company may access, use, process, modify, transmit and otherwise deal with User Data to the extent reasonably necessary to:

• (a) provide, operate, maintain, secure, support and improve BuildPass;
• (b) provide support, implementation, troubleshooting, training and account-management services;
• (c) operate integrations, workflows, messaging, notifications and other platform features configured or used by a Customer or User;
• (d) manage communication preferences, opt-outs, unsubscribe requests, suppression records and delivery records;
• (e) detect, prevent and investigate security incidents, spam, fraud, misuse, unlawful activity, excessive use, sender-ID misuse and breaches of these Terms;
• (f) comply with applicable laws, regulatory requirements, provider requirements, court orders and regulator requests;
• (g) enforce these Terms of Service, the Privacy Policy and any Additional Terms; and
• (h) create derivative data, analytics and de-identified or aggregated information in accordance with the Privacy Policy.

4.9 The Company may suspend accessibility to User Data that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.

4.10 The Company may delete User Data from its systems on termination of these Terms of Service.

5 GENERAL CONDITIONS

5.1 Licence

(a) By accepting these Terms of Service, the User is granted a limited, non-exclusive, non-transferrable and revocable licence to access and use BuildPass for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service.

(b) The Company may issue the licence to the User on further terms or limitations (such as the volume of use and data uploaded on an Account) as it sees fit.

(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the User.

5.2 Modification of Terms

(a) The Company may, in its sole discretion, modify or update these Terms of Service from time-to-time.

(b) When the Company changes these Terms of Service in a material manner, it will update the 'last modified' date at the top of these Terms of Service and notify the User that material changes have been made to these Terms.

(c) The User should review this page periodically for notice of any changes to these Terms of Service.

(d) The modified terms shall come into effect the next time the User accesses BuildPass following the update to the Terms of Service.

(e) If the User does not accept any changes to the terms of these Terms of Service, the User must immediately cease using BuildPass.

5.3 Software-as-a-Service

(a) The User agrees and accepts that BuildPass is:

• (i) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
• (ii) Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to BuildPass is available to the User unless expressly agreed in writing.

(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter BuildPass.

5.4 Support

(a) The Company shall provide reasonable support services in the manner agreed between the Customer and the Company from time-to-time.

(b) The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.

(c) Where the Implementation Services are provided by the Company, additional Fees may be charged to the Customer as agreed between the parties.

5.5 Use & Availability

(a) The User agrees that it shall only use BuildPass for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

(b) The User is solely responsible for the security of its username and password for access to BuildPass. The User shall notify the Company as soon as it becomes aware of any unauthorised access to its Account.

(c) The User agrees that the Company shall provide access to BuildPass to the best of its abilities, however:

• (i) Access to BuildPass may be prevented by issues outside of its control; and
• (ii) The Company is not liable to the Customer and/or any User for any User not being able to access BuildPass.

(d) The User agrees that it shall only use BuildPass for its intended purpose and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive, excessive or in a way that is deemed unreasonable by BuildPass in its discretion. The Company may terminate a User's access to the BuildPass if the Company considers that the User is in breach of this clause.

5.6 Privacy

(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR with respect to personal information that it collects about the User and other individuals.

(b) The Privacy Policy does not apply to how the Customer handles personal information.If necessary under the Privacy Act and/or the GDPR, it is the User’s responsibility to meet the obligations of the Privacy Act and/or GDPR by implementing a privacy policy in accordance with law.

(c) BuildPass may use cookies (a small electronic file) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

(d) The Company may use User Data and other information collected via BuildPass for research, developmental, statistical and analytical purposes, subject to and in accordance with the Privacy Policy.

5.7 Data

(a) Security. The Company takes the security of BuildPass and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards and the Privacy Policy.It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

(c) Storage. Data that is stored by the Company shall be stored according to accepted industry standards and the Privacy Policy.

5.8 Intellectual Property

(a) Trade marks.The Company has moral, registered and unregistered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trade marks, patents, proprietary rights and other laws, both domestically and internationally.The User warrants that it shall not infringe on any third-party rights through the use of BuildPass.

(c) BuildPass. The User agrees and accepts that BuildPass is the Intellectual Property of the Company and the User further warrants that by using BuildPass the User will not:

• (i) Copy BuildPass or the services that it provides for the User’s own commercial purposes; and
• (ii) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in BuildPass or any documentation associated with it.

(d) Content. All content (excluding User Data) submitted to the Company, whether via BuildPass or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to BuildPass.

5.9 Third Party Dependencies

The User agrees and acknowledges that BuildPass has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

5.10 Confidentiality

(a) Each party acknowledges and agrees that:

• (i) the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
• (ii) it owes an obligation of confidence to the Discloser concerning the Confidential Information;
• (iii) it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
• (iv) all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
• (v) any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

(b) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

• (i) any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
• (ii) any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
• (iii) any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.

(c) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

• (i) any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
• (ii) any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

5.11 Liability & Indemnity

(a) The User agrees that it uses BuildPass at its own risk.

(b) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.

(c) The Company makes no representation or guarantee that the User will achieve particular results from using BuildPass.

(d) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with BuildPass, including any breach by the User of these Terms of Service.

(e) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use BuildPass, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.

(f) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions, guarantees and warranties that may be implied or imposed by law.To the extent permitted by law, the Company’s liability for breach of any such guarantee or implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

• (i) The re-supply of services or payment of the cost of re-supply of services; or
• (ii) The replacement or repair of goods or payment of the cost of replacement or repair.

5.12 Termination

(a) The Customer may terminate these Terms of Service for convenience by giving the Company no less than 1 months’ written notice.

(b) Either the Company or the Customer may terminate these Terms of Service for cause by giving the other party immediate written notice where:

• (i) The other party has been notified in writing of a breach and has not remedied that breach within 15 Business Days;
• (ii) The other party commits a breach which is incapable of remedy; and/or
• (iii) The other party repetitiously, wilfully or recklessly commits a breach.

(c) Following valid termination access to BuildPass shall cease at the end of the Customer’s billing cycle active at the expiry of the relevant notice period.

(d) Contractors and Workers may terminate these Terms of Service by simply deleting their Account and ceasing use of BuildPass.

(e) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.

5.13 Dispute Resolution

(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

(i) Includes or is accompanied by full and detailed particulars of the Dispute; and

(ii) Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.

(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

5.14 Electronic Communication, Amendment & Assignment

(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b) The User can direct notices, enquiries, complaints and so forth to the Company using the contact details notified to the User. The Company will notify the User of a change of details from time-to-time.

(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e) Notices must be sent to the parties’ most recent known contact details.

(f) The User may not assign or otherwise create an interest in these Terms of Service without prior written consent of the Company (which shall not be unreasonably withheld).

(g) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.

5.15 General

(a) Special Conditions. The parties may agree to any special conditions to these Terms of Service in writing.

(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with, any special conditions, the terms of those special conditions shall prevail.

(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.

(d) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.

(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.

(g) Governing Law. These Terms of Service are governed by the laws of Victoria, Australia.Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(h) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.

(i) Interpretation. The following rules apply unless the context requires otherwise:

• (i) Headings are only for convenience and do not affect interpretation.
• (ii) The singular includes the plural and the opposite also applies.
• (iii) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
• (iv) A reference to a clause refers to clauses in these Terms of Service.
• (v) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
• (vi) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
• (vii) A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
• (viii) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
• (ix) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

END TERMS OF SERVICE