1.1 This Agreement is between EstimateOne Pty Ltd ACN 130 242 554 ("EstimateOne", "We" or "Us", "Our") and you (or, where a licensee has entered into an Order Form, the licensee named in the Order Form) ("Licensee" or "You", "Your")
1.2 Without limiting the ways in which the parties may be bound by this Agreement, by signing this Agreement, or by clicking "I accept" (or similar wording) or using a similar mechanism indicating acceptance, by accessing the Software, registering as a user or by otherwise using the Software, or accessing Our Site or applications, the Licensee agrees to be bound by this Agreement.
1.3 If You are entering into this Agreement on behalf of a company or other legal entity You represent that You have the authority to bind such entity to this Agreement, in which case the terms "You" or "Your" shall refer to such entity. If You do not have such authority or if You do not agree with this Agreement (or any portion of this Agreement) then You must not agree to this Agreement and may not use Our Services, including the Software.
1.4 Notwithstanding any other provision of this Agreement, no licence arises if You are a direct competitor of EstimateOne, except with the prior and express written consent of EstimateOne of a grant of licence to a direct competitor. For the avoidance of doubt, the mere execution of this Agreement without an acknowledgement in that Agreement that You are a direct competitor will not suffice for this purpose.
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.
(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.
License and Service Details
(a) Subject to the payment of all fees, the Licensee has the right to access and use the Software according to the terms of this Agreement
(a) Subject to this clause 4.2 the Licensee may use those of the Purchased Services that are enabled to the Licensee as set out in item 3 of the Order Form.
(b) EstimateOne may permanently or temporarily disable features of the Services in its reasonable discretion by reasonable notice to the Licensee. While EstimateOne will endeavour to provide reasonable notice to Licensee, the Licensee acknowledges that EstimateOne may need to disable Services with minimal or no notice in the event of errors with or caused by those Services in its reasonable discretion.
4.3 Managing use
(a) The Licensee is responsible for managing use of certain Services within its organisation, utilising any control functions within the Software.
(b) The Licensee is responsible for managing use of collaboration features with other licensees of the Software, utilizing any control functions within the Software.
4.4 Conduct affecting the functioning of the Services
As a user of the Software the Licensee is prohibited from using any device, software, script or any other mechanism outside of the ordinary use of the Software that may affect the proper functioning of the Software. This includes, but is not limited to:
(a) taking actions that place unreasonable or excessive loads on our systems and servers;
(b) taking any action that degrades the operational performance of our services or the Software; and
(c) infecting our systems, servers or the Site with any programming routines (such as viruses, worms, time bombs, etc.) that may damage, interfere with, delay, intercept or expropriate any system, data or personal information.
(d) using the Services or assist, encouraging or enabling others to use the Services in a manner prohibited under clause 4.6.
4.5 Free trial
(a) If You register for a free trial of the Software then this Agreement will also govern that free trial.
(b) If You register on the EstimateOne website for a free trial of the Software, EstimateOne will make the Software available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Software, or (b) the start date of any Purchased Service subscriptions ordered by You for such Software.
(c) Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please read those terms carefully;
(d) Any data You enter into the Software and any customisation made to the Software by or for You during Your free trial will be permanently lost unless You purchase a subscription to the same services as those covered by the trial, purchase upgraded services or export such data before the end of the trial period.
(e) You cannot transfer data entered or customisation made during a free trial to a service that would be a downgrade from that covered during the free trial (for example from Enterprise Edition to Professional Edition). In such circumstances You must export Your data before the end of the trail period or your data will be permanently lost. For the avoidance of doubt, any ongoing free or freemium licence is considered a downgrade from a trial version.
4.6 Reasonable use
(a) Your use of the Services is subject to compliance with the terms of this Agreement.
(b) Your use of the Software is subject to the condition that You may make reasonable use of the Software for the purpose of:
(i) Finding construction projects for Your business to help construct or supply to;
(ii) Managing construction project tenders;
(iii) Preparing construction contracts; or
(iv) Managing construction projects and the interaction between participants in construction projects.
(c) We may prohibit use of the Services that We consider to be unreasonable.
(d) We will consider it unreasonable use if You (directly or indirectly):
(i) violate this Agreement, including a breach of clause 8.2;
(ii) violate any applicable laws in using Our Services;
(iii) violate Our or any third party's rights, including intellectual property rights (such as rights to Our Copyright Work) or confidentiality obligations;
(iv) solicit Personal Information of other users of the Services;
(v) modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptions of, publicly display, sell, trade, or in any way exploit the Services, except as expressly authorised by Us;
(vi) access, retrieve or index any portion of the Services for purposes of constructing or populating Your own database;
(vii) attempt to gain unauthorised access to the Services, including through hacking, password mining or any other means;
(viii) use any robot, spider, service search / retrieval application, or other automated device, process or means to access, retrieve, copy, scrape, index any potion of the Services, including the Software, except as expressly permitted by Us. For the avoidance of doubt, You must not conduct data mining or resupply, resell or repackage information (including personal information) obtained from the Services, including the Software;
(ix) Access or use the Software in a manner that is directly or indirectly involved in the operations of a service that compete with any of our Software offering;
(x) Use the Software as a business development tool for purposes other than those outlined in 4.6(a)
(xi) reverse engineer any portion of the Services.
Terms of this Agreement
Composition of this Agreement
5.1 This Agreement consists of:
(a) these Head Terms; and
(b) the Schedules to this Agreement.
5.2 In the event of any inconsistency:
(a) between these Head Terms, any Schedules and any other terms expressly incorporated by reference, the terms will prevail in the order set out in clause 5.1;
(b) between the Schedules:
(i) Schedule 2 – Special Conditions will prevail over earlier Schedules;
(ii) subject to sub-paragraph (i), earlier Schedules will prevail over later Schedules.
(a) This Agreement will continue for the Term indicated in the Order Form.
(b) This Agreement will automatically renew for a further Term at the end of the Term unless either party gives notice of termination at least 30 days before the end of the Term or further Term.
Intellectual Property and Privacy
(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.
(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.
6.5 User Details
(a) The Licensee will be required to provide its details, including personal information (User Details). It is the Licensee’s responsibility to provide accurate and appropriate User Details and to keep any passwords, tokens and account access links confidential.
(b) The Licensee is solely responsible for all activities that occur using its User Details.
(c) EstimateOne is entitled to act on instructions received under the Licensee’s User Details, and the Licensee releases EstimateOne from any liability arising from any such action.
(d) If, for any reason, the Licensee believes that its account and/or password information has become compromised, the Licensee must contact EstimateOne immediately. Dissemination or misuse of account and/or password information constitutes grounds for termination.
(a) EstimateOne may identify You as a recipient of services and use Your name and corporate logo in sales presentations, marketing materials and press releases for this purpose.
(b) EstimateOne may develop a brief customer profile for use by EstimateOne on estimateone.com for promotional purposes, using Your name and corporate logo.
(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.
(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.
(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.
Confidentiality of content
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.
Third Party Software
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.
Please read this section carefully since it limits Our liability to You. Each subsection below applies to the maximum extent permitted by applicable law. Nothing in this section is intended to limit any rights You may have which may not be lawfully limited.
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.
Limitation of liability
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.
The Licensee represents and warrants to EstimateOne that:
(a) it has all right, title and interest, or the authority, necessary to enter into and perform Your obligations under this Agreement;
(b) all information provided to EstimateOne, uploaded to or entered into the Software, provided to other users of the Software or otherwise provided to Us as part of the Services:
(i) will be complete, current and accurate and not misleading in any way; and
(ii) will not infringe the Intellectual Property rights of any person.
13.1 The Licensee hereby indemnifies the Indemnified Parties, and keep each of them indemnified, against any Claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party which arises from or in respect of:
(a) any negligent, or wilful acts or omission, theft, misconduct, dishonesty or fraud committed by You or Your officers, directors and employees, and any agents, representatives, delegates or contractors acting on Your behalf in using the Services; or
(b) any Claim against us from any third party in respect of any material You upload or enter into the Software or provide to Us.
13.2 The Licensee’s liability to indemnify the Indemnified Parties will be reduced to the extent that any act of the Indemnified Parties contributed to the relevant loss or Claim.
13.3 Neither party is or will be liable to the other party for any Consequential Loss suffered or incurred by the other party.
(a) Either party may terminate this Agreement (and the agreement constituted by any use of the information, graphics and materials on the Software) and access to the Software in the event that the other party commits a material breach of this Agreement (including if in EstimateOne’s opinion you breach the reasonable use restriction in clause 4.6) and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other party.
(b) This Agreement , use of the Services and access to the Software may be terminated at any time by EstimateOne without reason on 30 days’ notice.
(c) Except where a party terminates for breach under clause (a), EstimateOne shall be liable to pay a refund of any Fee (or part thereof) paid in advance for Services of the Site which were not received, within 30 days of the termination date of this Agreement.
(d) In the event of termination for any reason any licence given by a Licensee to EstimateOne for the purposes of this Agreement shall not be revoked, however, EstimateOne shall only be able to utilize any licence to the extent necessary to complete any tasks and to bring the relationship between the parties to an end in an orderly fashion.
(e) Any terms which by their nature are intended to survive termination, will survive termination.
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.
16.1 EstimateOne not an agent
By operating the Software, the Site and conducting the Service, EstimateOne is not acting as an agent for You or any other party.
16.2 Force Majeure
If a Force Majeure Event occurs and EstimateOne is not able to perform its obligations under this Agreement in whole or in part, then, EstimateOne’s obligations under this Agreement will be suspended to the extent that EstimateOne is prevented from performing its obligations for the period during which the Force Majeure Event continues.
The Licensee must not assign or otherwise deal with any rights or obligations under this Agreement without EstimateOne’s prior written consent, which may be withheld in EstimateOne’s sole discretion. EstimateOne may assign or deal with any of EstimateOne’s rights or obligations under this Agreement at any time and without any requirement to notify You.
The Licensee agrees that EstimateOne may sell, transfer or assign its rights in the Software, and this Agreement at any time to any party without Your consent. EstimateOne (or the third party purchaser) may either serve notice on You that this Agreement is assigned to the purchaser or that You are required to enter a new agreement directly with the purchaser.
EstimateOne may (at its discretion) appoint a subcontractor in relation to any of its rights or obligations under this Agreement.
A Licensee must not publish a link to any part of the Site without EstimateOne’s prior written consent.
EstimateOne may change this Agreement from time to time as necessary. If EstimateOne does so, EstimateOne will post the revised Terms on the Site. EstimateOne may also give notice by other means, such as a message in the EstimateOne Software application or by way of email. Subject to Our compliance with paragraph two below in the case of material amendments, amendments will be effective immediately upon publication on the Site. The Licensee accepts that by doing this, EstimateOne has provided sufficient notice of the variation. The continued use of the Services following such notification will represent an agreement to be bound by this Agreement as amended.
When an amendment will result in a material change to the Agreement, EstimateOne will provide a minimum of 30 days’ prior written notice, failure to cancel or respond to the notice within 30 days will be deemed as agreement to continued use of the Service and new agreement terms. Do not continue use of the Services if You disagree with a notified material change. When an amendment does not materially change the relationship between You and EstimateOne, EstimateOne may change the Agreement without notice by following the procedures explained in this clause 16.6.
No failure to exercise or delay in exercising any right under this Agreement constitutes a waiver and any right may be exercised in the future. Waiver of any of this Agreement must be in writing and is only effective to the extent set out in that written waiver.
If any provision of this Agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions.
16.9 Entire agreement
This Agreement constitutes the entire agreement between You and EstimateOne in respect of the subject matter and supersede all previous communications, representations, understandings or agreements.
16.10 Governing law
Unless expressly agreed otherwise, the Site is provided for use only by Australian residents. This Agreement are governed by the laws in force in Victoria and You and EstimateOne submit to the non exclusive jurisdiction of the courts of Victoria and any courts that may hear appeals from those courts.
Schedule 1 – Service Level Schedule
This Service Level Schedule (SLS) sets out the service levels that apply to the [Customer] Software operated by or on behalf of EstimateOne Pty Ltd ACN 130 242 554 (EstimateOne).
A. The Software is a Software-as-a-Service product designed specifically for the commercial construction industry. It allows for the management of construction projects after the determination of the successful tenderer.
B. You have entered into an Agreement with EstimateOne, under which EstimateOne agrees to provide use of the Software to You in consideration of the promises and of the covenants and agreements contained in this Agreement.
C. EstimateOne has agreed to enter into this SLS to specify the service levels which will apply to EstimateOne’s provision of the Software to You.
THE LICENSEE AND ESTIMATEONE AGREE AS FOLLOWS:
In this SLS, unless the contrary intention appears the expression set out shall have the following meanings:
"Licensee" or "You": The licensee specified in the Order Form.
"Licensee Data": Has meaning given in the head terms
"Order Form": 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.
"Primary Contact": The nominated employee of the Licensee who manages the relationship with EstimateOne, as set out in the Order Form.
"Relationship Manager": The nominated employee of EstimateOne who manages the relationship with the Licensee, as set out in the Order Form.
"Service Fees": The Service Fees set down in item 6 of the Order Form.
"SLS": This Service Level Schedule.
"SLS Free Rebate": The financial rebate applicable from EstimateOne to the Licensee should Downtime (as defined in section 6 of this SLS) exceed Target Service Availability (as defined in section 6 of this SLS).
"Significant Failure": A technical failure of the Service requiring the engagement of an uncompromised backup. As a result of a Significant Failure, some data loss may occur.
Hours of service
EstimateOne shall use its best endeavours to make the Service available to the Licensee 24 hours per day, 365 days per year, subject to section 9 of this SLS and any Force Majeure Event (as defined in this Agreement).
Standard Support Hours
(a) Standard support hours at EstimateOne are 8:30am – 5:30pm Melbourne time, Monday – Friday (Standard Support Hours).
(b) All EstimateOne support enquiries should be directed in the first instance either via email to email@example.com or by phone on 1300 705 035.
(c) All ForSite support enquiries should be directed in the first instance either via email to firstname.lastname@example.org or by phone on 1300 281 545.
(d) We will use our best endeavours to ensure that all phone and email enquiries or fault reports during Standard Support Hours will be responded to within 4 working hours.
In the event of the Licensee encountering a Technical Issue, the following escalation process should be followed:
During Standard Support Hours (EstimateOne):
(a) Contact the EstimateOne Client Support Team, either via email (email@example.com) or phone 1300 705 035. You will be assigned a ticket immediately, and as per the Standard Support Hours, will be contacted within 4 business hours;
(b) 1st level of Escalation: The Relationship Manager assigned to the Licensee, as set out in the PoSA; and
During Standard Support Hours (ForSite):
(a) Contact the ForSite Client Support Team, either via email (firstname.lastname@example.org) or phone 1300 281 545. You will be assigned a ticket immediately, and as per the Standard Support Hours, will be contacted within 4 business hours;
(b) 1st level of Escalation: The Relationship Manager assigned to the Licensee, as set out in the PoSA.
Should EstimateOne need to disable access to the Service in order to improve the technical infrastructure (Scheduled Maintenance), where possible, the Scheduled Maintenance will be conducted pursuant to the following conditions:
(a) the Scheduled Maintenance is timed either between 12am – 5am AEST Monday – Saturday, or at any time on a Sunday;
(b) We will use Our best endeavours to ensure that the Scheduled Maintenance period lasts for a maximum of 4 hours; and
(c) EstimateOne will give 24 hours notice via email or within the website to the Primary Contact of the Licensee regarding the proposed Scheduled Maintenance.
Target Service Availability
(a) The target uptime for the Software covered by this SLS is 99.50%.
(b) Software Availability is defined as the percentage of time Software is available to the Licensee during the course of a month. Software Availability is calculated in accordance with the following formula:
Service Availability for Month = ((T – D) x 100) / T
T is the total number of minutes in the Month; and
D is Downtime in minutes.
(c) Downtime is defined as any interruption to Software availability that exceeds 180 seconds, but does not include interruptions resulting from:
i. planned outages for scheduled maintenance;
ii. network outages caused by other carriers;
iii. Force Majeure (as defined in this Agreement);
iv. any other circumstances outside the reasonable control of EstimateOne, including without limitation virus attacks or hackers, or inability to obtain raw materials, supplies or power used in the provision of this SLS;
v. any acts or omissions of the Licensee (or acts or omissions of others engaged or authorized by the Licensee), including, without limitation, custom scripting or coding, any negligence, wilful misconduct, or use of the Service in breach of this Agreement; and
vi. email delivery delays of any kind caused by Spam filtering, Delays with Third party Networks, 3rd Party Software, Telecommunication services and IP Blacklisting.
(d) EstimateOne measures Software Availability at the point (Service Delivery Point) where the Internet interfaces with the EstimateOne router within the EstimateOne data centre through which the Services are provided.
(e) Software Availability is determined through a third party, independent monitoring service. Service Availability can be viewed at any time via the following URL: http://status.estimateone.com.
The Licensee will pay the Service Fees as and when set out in the order form.
(a) Subject to a Force Majeure Event, EstimateOne will provide the following rebates for Service unavailability:
Software Availability Equivalent Downtime (Month) Fee Rebate Rate >= 99.50% 0 – 3.6 hours Nil 98.00% – 99.50% 3.6 hours – 14.4 hours 10% 95.00% – 98.00% 14.4 hours – 36 hours 15% < 95.00% > 36 hours 25%
(b) The Licensee must submit a claim for an SLS Fee Rebate within 14 days after the end of the month in which the interruption to service availability occurred.
(c) The Licensee is not entitled to claim an SLS Fee Rebate if Your account is overdue.
(d) Rebates will be applied by way of a credit to the next bill and are not redeemable for cash when cancelling the Service.
(a) Significant Failure is defined as an event whereby significant data and/or technical loss require EstimateOne to restore the Software by reverting to an uncompromised backup of the Service and all associated data.
(b) Recovering from a Significant Failure is expected to take 4 business hours, but may be longer or shorter depending on the severity of the failure and the nature of the failed components.
(c) During a Significant Failure, any period of data loss (the period between last backup and the time of full Service recovery) shall contribute towards downtime calculations and any applicable Fee Rebates.
Security of Licensee Data
(a) EstimateOne will put in place reasonable measures to protect both the integrity of the Software and the Licensee Data.
(b) At all times the Licensee Data will be stored within Australian territorial boundaries.
(c) All communication between the Licensee and the Service is to be encrypted via Secure-Sockets Layer (SSL) encryption.
(d) All Licensee Data is to be backed up to a secure off-site location on a nightly basis.
(e) Backups of Licensee Data may occur more frequently in EstimateOne’s discretion.
(f) All Licensee Data will be stored for a period of 36 months, accessible from within the Service.
(g) After 36 months, the Licensee can request that data scheduled for deletion be recorded onto a removable media device and securely delivered to the Licensee. Each request will incur a fee of $750 (ex GST).