In this Agreement:

(a) Claim means a claim, action, proceeding, judgment or demand made or brought by or against a party, however arising and whether present, unascertained, future or contingent;

(b) Copyright Work means a “work”, “cinematograph film” and “sound recording” within the meaning of the Copyright Act 1968 (Cth).

(c) Fees means any fees under this Agreement, including without limitation Usage Fees and Service Fees;

(d) Force Majeure Event means any act, event or cause, other than lack of funds, affecting EstimateOne that is outside EstimateOne’s reasonable control, including, but not limited to war, acts or threats of terrorism, riots, revolutions, civil war, acts or threats of sabotage, national emergency, imposition of martial law, government requisition or any unlawful act against public order or authority, adverse weather conditions, acts of God and destruction by natural disasters including landslides, earthquakes, tsunamis, fires, storms, cyclones and floods, epidemics, quarantines, radiation and radioactive contamination, boycotts, strikes and other labour difficulties or any ongoing internet or telecommunications outage;

(e) Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets, or, in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or, in relation to an individual or any entity, the occurrence of any event that has a substantially similar effect to any of the above events;

(f) Intellectual Property  or   Intellectual Property Rights  means all intellectual property rights, including trade marks, copyright, patents, patentable inventions and designs, whether existing now or in the future anywhere in the world and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, inventions, discoveries, semiconductor and circuit layouts and further includes the right to apply for the registration or grant of any such intellectual property;

(g) Interest Rate means the rate per annum which is 2 percentage points greater than the current rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) or the maximum interest rate permitted by law;

(h) Indemnified Parties means EstimateOne and each of its directors, officers, employees, agents, contractors and related bodies corporate;

(i) Licensee Data means all data elements created by the Licensee within the Software, including but not limited to address book entries, construction plans, technical drawings, communication records, invoices, payment demands and audit trail records.

(j) Loss means any damage, loss, cost, expense or liability of any kind incurred by the person concerned, however it arises and whether it is direct or indirect, present or future, fixed or unascertained, actual or contingent;

(k) Order Form means the order form or provision of service agreement form to which this Agreement is attached and that sets out the agreed particulars regarding this Agreement.

(l) Privacy Policy  means the EstimateOne Privacy Policy located on Our Site;

(m) Services  means the products and services provided by EstimateOne, including the Site, EstimateOne applications, Software and the Purchased Services;

(n) Site  means EstimateOnes websites, including https://estimateone.com/; and

(o) Software means the EstimateOne software and ForSite System/App, including their document platforms, applications, web servers, operating systems, email servers, database servers and associated network availability.

In this Agreement, unless the context otherwise requires, the singular includes the plural and vice versa; the meaning of general words is not limited by specific examples introduced by ‘including’ or similar expressions; and a party includes the party’s employees, officers, agents, successors, transferees, assigns and executors.

6.1 Copyright

(a) Uploading any Copyright Work into the Software will not alter the ownership of copyright in that Copyright Work.

(b) Licensee warrants that with respect of any Copyright Work that it uploads into the Software, distributes or shares using the Software, or amends or allows others to amend within the Software, the Licensee is entitled to so upload, distribute, share, amend that Copyright Work, or authorise others to do so, without infringing the intellectual property rights of any third party.

(c) The Licensee grants EstimateOne a licence to reproduce, distribute and amend its Copyright Works pursuant to the functions of the Software and EstimateOne’s normal operations of the Software (including back-ups, maintenance, testing and development), and for the purposes of indexing, summarising, compiling, analysing and searching those Copyright Works. This licence granted to EstimateOne continues after this Agreement ends.

6.2 Analytical use

(a) You may not use or access the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

6.3 Trade marks

(a) The trade marks used on the Site are either trade marks of EstimateOne, or third party trade marks which EstimateOne has permission to use.

(b) Nothing in this Agreement gives the Licensee any right to use any trade mark displayed on the Site without the express written permission of EstimateOne or, if applicable, the third party owner of the trade mark.

(c) The Licensee must provide EstimateOne with an electronic copy of its main company logo for display in the Software. Upon doing so the Licensee grants EstimateOne a licence to use and reproduce that trade mark for the purposes of referring to the Licensee within the Software and referring to the Licensee’s projects.

6.4 Privacy

(a) Our Privacy Policy sets out how we handle Your personal information. Please review a copy of Our Privacy Policy located at https://estimateone.com/privacy/ or contact Us for a copy before using Our Services.

(b) The Licensee must comply with all laws in relation to privacy including but not limited to the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth) when using the Services.

(c) The Licensee will obtain all consents necessary to ensure that the communication with other users of the Software complies with all applicable laws (including, without limitation, consents required under the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth)).

(d) EstimateOne may compile statistical information related to the use and performance of the Services, may generate insights with this statistical information and may make such statistical information publicly available, provided such information does not:

(i) incorporate Your personal information and/or identify You; and/or

(ii) incorporate Your confidential information.

(e) EstimateOne retains all Intellectual Property Rights in statistical information compiled from the use and performance of the Services.

(f) The Licensee acknowledges that the Software facilitates the sharing of certain information in relation to projects. This may include, without limitation, the name of the builder, the name of the architect, the names of subcontractors, their contact information, and project dates. The Licensee agrees that it will be responsible for familiarising itself with the operations of the Software, including which information fields will be shared, before entering any confidential information belonging to itself or a third party into such fields.

(i) The Licensee will obtain all consents necessary to ensure that Licensee data, including the personal information of its users and customers is collected, uploaded and inputted into the Software or otherwise provided to Us as part of the Services is done in compliance with and that Licensee Data is maintained in accordance with applicable laws (including, without limitation, consents required under the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth)).

(j) The Licensee acknowledges and agrees that where the Licensee adds subcontractor personal information from an EstimateOne Service including a published directory, to Licensee’s address book, that information is deemed Licensee Data. The Licensee is responsible for maintaining, and must ensure, the integrity and security of that Licensee Data, including by complying with applicable laws (including, without limitation, by providing any notifications and obtaining any consents required under the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth)).

(j) The Licensee acknowledges that the Software facilitates the sharing of certain information in relation to account profiles. The Licensee agrees that this information will be deemed Licensee Data once added to a builders address book.

(k) The Licensee acknowledges that EstimateOne may use and disclose personal information of subcontractors and suppliers to proactively suggest connections and contact between subcontractors and suppliers based on relevant factors including the nature of the services and products of subcontractors and suppliers, where the Licensee has not otherwise opted out of this functionality. The Licensee must comply with all applicable privacy and marketing laws when making use of any information provided through this functionality. For clarity, this functionality is additional to, and does not limit, the ability of users of the EstimateOne platforms from browsing or searching for projects and tenders, and submitting proposals for those projects and tenders, through the platforms.

7.1 Payment

(a) Fees will be automatically paid by the due date for payment via the payment method nominated by us from time to time which may include credit card, debit card, bank account, PayPal or any other payment method approved by EstimateOne.

(b) All fees are fixed for the length of the License agreement. EstimateOne can vary fees for any further term by giving the Licensee notice of the new fees at least 45 days before the end of the current term.

7.2 Taxes

(a) All amounts payable by the Licensee under this Agreement, including but not limited to the Fees, exclude all applicable sales, export or import fees or tariffs, GST, use and other taxes.

(b) The Licensee will be responsible for payment of all such taxes (except those based on EstimateOne’s income), fees, duties and charges arising from the payment of those amounts.

7.3 GST

(a) Fees are exclusive of GST unless expressly stated otherwise.

(b) If all or any part of what is supplied under this Agreement is subject to GST, EstimateOne may invoice and the Licensee must pay EstimateOne an additional amount equal to the rate of GST multiplied by the GST-exclusive amount. The Licensee must pay such amount concurrently with paying the GST-exclusive amount, subject to receiving a tax invoice from EstimateOne.

7.4 Consequences of non payment or insolvency

Without limiting EstimateOne’s rights of termination, if the Licensee does not pay any amount payable under this Agreement, or is subject to an Insolvency Event, EstimateOne may (regardless of whether it exercises any cancellation right):

(a) charge the Licensee interest on all overdue amounts at the Interest Rate 2 percentage points greater than the rated fixed at the time that the payment is due under the Penalty Interest Rate Act 1983 (Vic) calculated daily from the due date for payment until paid in full;

(b) require the Licensee to pay all costs incurred by EstimateOne in recovering or attempting to recover the outstanding amount including (without limitation) legal or debt collection costs; and

(c) suspend the Licensee’s right to use the Site or the Service (without prejudice to its right to terminate this Agreement) until such time as all outstanding amounts are paid in full.

8.1 The Licensee acknowledges that:

(a) information provided to the Licensee under this Agreement is confidential and may only be used by the Licensee for its own information needs, unless otherwise permitted by EstimateOne in writing; and

(b) information contained in the Services is proprietary information belonging to EstimateOne or is otherwise licensed to EstimateOne by third parties. The Licensee must not disclose, reproduce, edit, copy, modify, republish, upload, transmit or distribute in any way the content made available to the Licensee through EstimateOne or by the Services to any other person. This includes code and software (including the Software) developed, produced or utilised by EstimateOne, as well as, any email correspondences and the content of the Site.

9.1 Unless otherwise indicated software downloads available via links from the Software are third party products. These products may be subject to a separate licence agreement between the Licensee and the relevant product owner to which EstimateOne is not a party. Your use of those third party software products may be subject to the terms and conditions of those third parties. It is Your responsibility to familiarise yourself and comply with any applicable third party terms.

9.2 To the extent permitted by law, EstimateOne accepts no liability in respect of such third party products and provide no warranty and give no endorsement in respect of such products or any party connected with them.

10.1 EstimateOne does not warrant the accuracy, adequacy or completeness of the information in the Software or provided through any services of EstimateOne. EstimateOne does not accept responsibility for loss suffered as a result of reliance by upon the accuracy or currency of information contained in the Software, whether created by EstimateOne or another user of the Software.

10.2 Except to the extent any loss or damage is caused by an act or omission of EstimateOne that is wilfully negligent, fraudulent, constitutes a criminal act, or is a liability that the parties cannot limit or contract out of, EstimateOne does not accept any responsibility, and shall not be liable for:

(a) any loss or damage, however caused which a Licensee may directly or indirectly suffer in connection with the use of the Software or any linked website;

(b) any loss or damage arising out of the use of or reliance on information contained on or accessed through the Software;

(c) any loss or damage caused due to the loss or corruption of any of data that is provided to us in the course of the use of the Software;

(d) any damage to any computer equipment or other property due to access to, or use of the Software or downloading of any material from the Software or the Site; or

(e) any interruptions or errors in access to the Software or the accuracy, timeliness, completeness, security or reliability of any communications (including, without limitation, any transactions) made through or in relation to the Software between You and EstimateOne or another user of the Software.

10.3 While Estimate One takes reasonable care to provide the Software to You, EstimateOne does not guarantee that the Software will be free from errors or viruses, or that access to the Software will function as intended or uninterrupted. Licensee must take its own precautions to ensure that accessing the Software does not expose them to the risk of viruses, malicious computer code or other forms of interference or damage to EstimateOne’s computer system which arises in connection with the use of the Software.

10.4 Data transmissions over the Internet cannot be guaranteed to be totally secure. Whilst EstimateOne strives to protect such information, EstimateOne does not warrant and cannot ensure the security of any information which is transmitted to EstimateOne. Accordingly, any information which is transmitted to EstimateOne is transmitted at the Licensee’s own risk. Nevertheless, once EstimateOne receives Your transmission, EstimateOne will take reasonable steps to preserve the security of such information.

10.5 If, by entering into this Agreement, the Licensee is a consumer as defined in schedule 2 of the Australian Consumer Law, the disclaimers contained in this clause shall be severed from this Agreement to the extent of any inconsistency with the Australian Consumer Law.

10.6 The Software allows suppliers to indicate that certain of their products are "as specified" or "equivalent to (as specified)" in the requirements in the project documents, based on the suppliers' own review and consideration of the project documents. We do not assess or verify whether any indicated products are "as specified" or "equivalent" to the requirements in the project documents, or whether the products are otherwise fit for purpose. You must review and consider the suitability of any suppliers and their products for your purposes, and we disclaim any liability arising out of your selection of a supplier and/or any products.

11.1 Under the Australian Consumer Law (ACL), certain consumer guarantees may apply in respect of goods or services supplied by EstimateOne in connection with the Services. Nothing in this Agreement should be interpreted as attempting to exclude these consumer guarantees or any other liability arising out of statute or limit EstimateOne’s liability for breaching the guarantees or limit liability which cannot lawfully be limited (a Non-Excludable Provision). If We are able to limit Your remedy for a breach of such Non-Excludable Provision then Our liability for a breach of a Non-Excludable Provision is limited to one or more of the following, at our sole option:

(a) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the payment of the cost of replacing the goods or of acquiring the equivalent goods; or

(b) in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.

11.2 Subject to the applicable consumer guarantees, and to the extent permitted by law, EstimateOne excludes any condition, guarantee or warranty which would otherwise be implied into this Agreement.

11.3 If a claim is made against EstimateOne regarding the products or services EstimateOne supplies in connection with the Software:

(a) in respect of any breach or alleged breach by EstimateOne of the consumer guarantees and the relevant products or services are not a kind ordinarily acquired for personal, domestic and house use or the value of services is over $100,000; or

(b) in respect of any cause of action other than a breach of the ACL (including without limitation, for breach of contract or negligence by EstimateOne):

to the extent permitted by law, EstimateOne’s liability will be limited, at its discretion, to:

(c) if the breach relates to goods – the replacement of the goods, the supply of equivalent goods or a full refund to the value of the goods; and

(d) if the breach relates to services – the supply of the services again, or a full refund to the value of the services,

and EstimateOne will not be liable for any consequential or inconsequential loss or damage arising directly or indirectly out of or in relation to the goods or services provided.

If a dispute arises between the parties with regard to the subject matter of this Agreement, the party claiming the dispute must notify the other party in writing of the nature of the dispute and provide details sufficient for the other party to understand the claim (Dispute Notice). Where applicable the Dispute Notice should contain any relevant evidence to corroborate allegations made in the Dispute Notice.

If the dispute has not been resolved between the parties within 14 days of the service of a Dispute Notice, the dispute must be submitted to mediation in accordance with, and subject to, the Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules. The parties will each bear the costs of such mediation equally.

Neither party may commence any court proceedings or other similar actions relating to a dispute unless it has complied with the above dispute resolution procedure.