Terms of Service
BUILDPASS PTY LTD ACN 652 324 635
TERMS OF SERVICE
BuildPass is a digital platform to effectively manage building projects and construction sites. Use of BuildPass is subject to these Terms of Service.
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.
(u) Privacy Act means the Privacy Act 1989 (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 and pricing 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.
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
(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.
(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).
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.
(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.
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.
No 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 The Company shall not access, use, modify or otherwise deal with User Data except where required by compulsion of law or upon the User’s authority (such as to provide support for BuildPass).
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
(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.
(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.
(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.
(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.
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.
(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.
(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.
(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