About this Agreement

1.

You are deemed to accept these terms and conditions (Agreement) in the online registration process by clicking a box indicating your acceptance of this Agreement, or otherwise by commencing to use the Services. This Agreement applies to the Services and is legally binding. If you are entering into this Agreement on behalf of a company or other entity you:

1.1

warrant you have authority to enter into this Agreement on behalf of the same;

1.2

agree that this Agreement will bind you and also each of the employees of the company or entity who you authorize to use the Services.

2.

Please see clauses 74 and 74.11 for interpreting this Agreement (including defined terms).

3.

You warrant and agree that you will provide true and accurate information in completing the online application form.

4.

Our customer service staff will contact you via email once your application has been accepted. You are responsible for maintaining the security of your account and passwords.

5.

This Agreement, the terms in the online application form, the online terms for any Additional Services you subscribe to and our Policies are the sole terms of our contract with you. We may change the terms of this Agreement and/or our Policies as we decide from time to time. You will be notified of such changes when you log on to the Services or by other means. In the case of any inconsistency between our Policies and the terms of this Agreement, the terms of this Agreement prevail. Except as required by the mandatory operation of law all implied terms and conditions are excluded.

The Services and Licence

6.

On our acceptance of your application we grant you a non-exclusive, non-transferable worldwide licence to use the Services to assist you in conducting your business. The purpose of the Services is to allow you to send and/or receive Data as a customer or supplier (or both) and to allow you to manage and extract Enhanced Data from the same. Full functionality of the Services and your ability to control and use the Services are set out on our webpage located at www.constructionhive.com.

7.

You agree that you will not:

7.1

assign, transfer or licence the Services to any person or encumber your rights under this Agreement;

7.2

commercially exploit the Services or make them available for use by any other person;

7.3

create links to the Services or mirror the Services on any server or other device; or

7.4

allow anyone to use the Services (other than where you are a company or entity and you have authorized your employees to use the Services).

8.

You agree that we may from time to time upgrade or change the functionality and/or look and feel of the Services.

9.

You agree that we can promote publicly that you use the Services unless you direct us in writing not to do so.

Configuration and Use

10.

You are responsible for the initial and ongoing configuration of the Services to your needs and requirements (including any mandatory or optional information or functionality provided by Services).

Data and Confidentiality

11.

The Services allow you to control to who you transmit Data. At all times you are solely responsible for what Data you transmit via the Services including, where you receive Data, to control the further transmission of such Data. You ability to further transmit data may be limited or controlled by the user who has sent the Data to you.

12.

You warrant that you have the right to submit and use all Data via the Services and in doing so you do not breach any obligations of confidentiality, contractual arrangements or applicable Laws. You are solely responsible for the accuracy (including technical reports, data and advice), integrity and reliability of Data. You warrant that no Data will infringe the Intellectual Property rights of any third party or other user.

13.

We agree to use reasonable efforts to secure the Data so it is not disclosed to third parties (other than as provided under this Agreement) unless we have your consent or are required to do so by Laws. Despite this, we do not guarantee that the Data or any emails will be secure from interception by and disclosure to third parties. You agree that we can disclose the Data on a confidential basis to our related companies and also to our contractors and agents involved in providing you with the Services.

14.

In respect of information you provide to us in your online application form or generally in your dealings with us (Information) we agree not to disclose or use the same other than in our dealings with you and in providing the Services. We will not sell your Information but we may provide the Information to our related companies on a confidential basis. In addition, we will comply with our Privacy Policy at www.constructionhive.com in respect of personal information of individuals we obtain in relation to your use of the Services.

15.

The Services include functionality to allow you to export and/or print the Data. We will not provide you with Data on the expiry or termination of this Agreement.

16.

We will use reasonable efforts to ensure that the Data is available to you. However, we will not be liable to you for any loss, damage, costs or expenses arising from corruption to such Data or failure to store, make available or update such Data. You are solely responsible for exporting Data. You acknowledge that we give no warranty as to (a) the accuracy or completeness of any Data you access or use, or (b) the integrity or completeness of any Data imported by you or third parties and then make available via the Services. You agree to (a) release us from all damages, loss, costs and expenses from your use or reliance on the Data, and (b) indemnify us from any claims by third parties in respect of your use, disclosure or reliance on the Data.

17.

You must keep your password confidential and not allow other persons to use the Services with your password. You must contact us if you suspect someone else is using your password and provide us with details of the same.

18.

You agree that we may contact you by email or other means to update you about the Services, Additional Services and offerings and as to your use of the Services.

Enhanced Data

19.

You agree that we may use the Technology to enable you, other users authorized by you and us to generate and use Enhanced Data from the Data. You warrant that you either legally own the Data or have the legal right to authorize us to create Enhanced Data from the Data.

20.

You acknowledge and agree that the Enhanced Data may allow (among other things) functionality for you and users authorised by you:

20.1

to search a number of Documents;

20.2

to track whom has viewed, forwarded and printed Documents;

20.3

to obtain information on Documents produced including metric information, number of Documents, time to prepare such Documents distribution by location and user; and

20.4

to allow for aggregated and statistical information in respect of Documents you receive or send.

21.

Enhanced Data may be generated and displayed as images, charts, tabulated values or in any other form.

22.

You acknowledge that the Enhanced Data is generated by automatic Technology and as such:

22.1

we give no warranty as to the accuracy or completeness of any Enhanced Data; and

22.2

you release us for all damages, loss, costs and expenses in respect of your use or reliance on the Enhanced Data and indemnify us from any claims by third parties in respect of your use, disclosure or reliance on the Enhanced Data you generate using the Technology.

23.

We will own the Enhanced Data but grant you for free a non-exclusive, non transferable worldwide licence to use the same for the term of the Agreement. You agree that if you terminate this Agreement those users who you have provided Data to may continue to use the same to generate Enhanced Data and also continue to use any current Enhanced Data. If a user who has provided Data to you ceases to be a user you may continue to use the Data to generate Enhanced Data and also continue to use current Enhanced Data. The rights of use under this clause are subject to our rights to terminate this Agreement in respect of any user and/or any user’s rights to use Enhanced Data.

24.

You agree that we may generate de-identified aggregated Enhanced Data from your Data and the Data of other users and make the same available to other users of the Services.

Your General Obligations

25.

In using the Services you will communicate and generally deal with other users as selected by you. At all times you agree you are solely responsible for your interactions and conduct with other users including for deciding what Documents are transmitted and to whom and the content of the Documents and for any representations, advertisements and warranties you give or make.

26.

You agree to comply with all applicable Laws in your use of the Services and your dealings with us, other users and third parties.

27.

We do not endorse any other user whom you deal with in using the Services or give any representation or warranty as to the credit worthiness of the same.

28.

We do not warrant the number of other users who will from time to time be available via the Services or that all users will agree to be contactable by you over the Services.

Communications

29.

You are responsible at all times for the communications you make using the Services. You agree that you will not send or cause us to send any unsolicited commercial emails or electronic messages if the same are prohibited by applicable Laws.

30.

You will ensure that the content of your Data and other information sent via the Services does not:

30.1

breach any applicable Laws or any mandatory codes of conduct applicable to any ISP we engage to host and provide the Services;

30.2

infringe the Intellectual Property rights of any user or third party;

30.3

contain obscene, defamatory, libellous or threatening materials or which encourages criminal or illegal conduct.

31.

You agree to comply with all applicable Laws as to privacy in respect of your use of the Services.

32.

We have no obligation to either monitor the content provided by you or your use of the Services. However, we may monitor and remove any such content if we believe, or it is alleged, to breach this Agreement, applicable Laws or any third party’s or other user’s Intellectual Property rights.

Intellectual Property

33.

We own the Intellectual Property in the Services (which includes the Technology and Content) or have (from our related companies) the rights to licence the Services to you.

34.

Nothing in this agreement transfers any ownership in either the Services or the Intellectual Property in the same to you.

35.

You acknowledge that the name “construction hive” and the construction hive logo are our trade or service marks or otherwise owned by our related companies (Marks). You are not authorised to use any of the Marks in any advertising, publicity or any other commercial manner without our prior consent and your use of the Services does not give you any title or ownership in the Marks. You agree that we own for free all Intellectual Property in any feedback or suggestions you provide to us in respect of the Services.

36.

You will not (directly or indirectly) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure, ideas, or algorithms of, or found at or through the Services.

37.

For every email sent via the Services, you agree that the Services may automatically add an identifying footer stating "Powered by Construction Hive" or a similar message as we decide.

38.

You agree to comply with the following in respect of any claim or allegation that the Services infringe the Intellectual Property rights of a third party:

38.1

you must inform us as soon as you become aware of any allegation or claim that the Services infringe the Intellectual Property rights of any third party and provide all relevant materials to us; and

38.2

you grant us the right to conduct the defence or resolution of such claims (we must give you notice of whether we will conduct the defence within 20 days of the date you give us notice of the claim or allegation).

39.

If we elect to conduct the defence we will pay all legal costs in respect of the same and you will provide all reasonable assistance required by us to conduct the defence.

40.

In any claim or action in respect to the Services infringing the Intellectual Property rights of a third party we may:

40.1

procure for you a right to continue using the Services from the party bringing or succeeding in the claim or action;

40.2

amend the Services so it no longer infringes the Intellectual Property rights of a third party; and/or

40.3

terminate the Services or this Agreement in full or in part immediately without notice to you.

41.

Any person may give us a notice which states the person believes that a user is infringing their copyright materials in using the Services. Any such notice must:

41.1

be signed (including an electronic signature) by a person authorised to act for the owner of the copyright materials;

41.2

provide a proper description of the infringed copyright materials claimed to be infringed;

41.3

state where in respect of the Services the alleged infringing materials are located;

41.4

include the alleged owner’s address, telephone and email details;

41.5

include a statement (made under penalty or perjury or as a statutory declaration) in good faith that the use of the copyright materials is not authorised and that all the contents of the notice are accurate (Notice).

42.

We may on receipt of a properly completed Notice remove the alleged infringing copyright materials, notify the user of the removal and/or provide the user with a copy of the Notice. In no circumstances will we be liable to the user for removing such copyright material.

Fees and Payments

43.

If you subscribe to the Services (including Additional Services and optional or extended functionality offered in respect of the Services as offered by us from time to time) you agree to pay all such fees (which will be set out in the online terms of subscription) as and when required and in the required currency. We may terminate this Agreement or suspend your use of the Services if you fail to do so. You may not set off or deduct any fee you owe to us against any amount you claim we owe to you.

44.

If you fail to pay any amount under this Agreement by the due date you are liable to pay interest at the rate of 5% per annum on such amounts until they are paid.

45.

If under any Tax Laws deductions or withholdings are required to any fee payable to us under this Agreement you must pay to us such amount as will, after the deduction or withholding has been made, leave us with the same fee as we would be entitled to receive in the absence of such deduction or withholding. Tax Law means all forms of taxation, duties, levies and imposts of any jurisdiction including taxes on sales, purchases, consumption, import and export duties, stamp duty and other documentary or transaction taxes, taxes on the use or licensing of goods or technology and any fines, penalties or charges relating to the failure to comply with any such laws.

46.

The fees payable under this agreement are exclusive of any sale tax, value added tax, goods and service tax or broad based consumption tax imposed by any jurisdiction (Service Tax). If a supply under this agreement is subject to a Service Tax and we (as the recipient of the consideration) are liable to pay such Service Tax, you agree that the fees payable to us will be increased by the amount of such Service Tax.

Term and Termination

47.

Your rights under this Agreement commence on the date we provide you with access to the Services and continue unless terminated under this Agreement.

48.

You may terminate this Agreement at any time by emailing our customer support staff or using our online the unsubscribe function. We may terminate this Agreement without cause on 2 days notice to you or immediately without notice if we cease to offer the Services.

49.

We may terminate this Agreement or suspend the Services immediately by notice to you if:

49.1

you breach any of the terms of this Agreement, any of our Policies or additional terms for Additional Services or we (on reasonable grounds) suspect you are in breach;

49.2

you cause us to breach any obligation we have with the ISP hosting the Services; or

49.3

you are subject to a Bankruptcy Event.

50.

Termination does not affect any of our rights or remedies existing before termination or arising from termination.

51.

You agree that we may delete (with or without notice to you) all or any Data at any time during the term of this Agreement or on the expiry or termination of this Agreement.

Liability and Indemnity

52.

To the extent allowed at law, we disclaim and exclude all conditions and warranties, express, implied or imposed by law or trade custom or usage. We make no representation, warranty or guarantee as to the reliability, quality, availability, accuracy or completeness of the Services (including the content of the same and any Enhanced Data). As the Services are provided over the internet we cannot and do not make any warranty or representation that:

52.1

the use of the Services will be secure, timely or error free;

52.2

the Services will operate in combination with other hardware, software or system;

52.3

the Services will meet your requirements, be suitable for your needs or as to the results you may obtain from using the Services;

52.4

Data stored will be accurate or reliable;

52.5

emails and Data sent by the Services will be delivered promptly or delivered at all; or

52.6

emails and/or the Services and servers relating to the same will be free of viruses or other harmful applications.

53.

In addition, we give not representation or warranty that we will continue to host any Data provided by means of the Services and you agree that we will not be liable to you if any such Data is lost or becomes corrupted, including because of server or error or failure to back up by us (you agree we are not under an obligation to conduct any such back ups).

54.

You agree that the Services are provided to you by us on an “as is” and “as available” basis. We are not responsible and make no representations or warranties as to the delivery of any Data, email or other materials via the Services. We do not warrant that your use of the Services will not infringe the rights of any third parties. We do not have any obligation to verify the identity of the users who register to use the Services and we are not liable for any misuse of your account for the Services by any third party.

55.

The Services are provided via the internet and email communications. We will use reasonable efforts to ensure that the Services are available but we do not warrant that the supply of the Services will be provided or available on an uninterrupted basis. We cannot give such a warranty as the Services are provided over the internet and as such are subject to matters outside of our control. We will not be liable in the event that the Services are unavailable for any reason including due to us or our hosting agents having server downtime (including in respect of malfunction, upgrades or preventative or remedial maintenance activities) or for other factors outside our control which affect the internet, electronic hosting and emails.

56.

Under no circumstances will we be liable to you or any other person for any amount for any economic, consequential, contingent, special or indirect damages resulting from the loss of business, revenue or profit with respect to claims arising in connection to this Agreement including any act or omission by us in performing the Services or for a breach of contract or Laws, negligence or under any other theory of law including where we were aware or had been told of the possibility of any such damage or loss.

57.

Our maximum liability to you in respect of this Agreement arising from any of our acts or omissions, breach of contract or Laws, or for negligence or under any other theory of law is limited to the greater of:

57.1

$100 USD; or

57.2

the total fees (if any) you have paid us in respect of the Services in the 6 months prior to the date you notify us that you are or are considering making a claim against us.

58.

You agree that clause 57 is:

58.1

a genuine pre-estimate of the likely loss and damage you may suffer in respect of the matters set out in that clause; and

58.2

an essential basis of the bargain in making this Agreement and that without the availability of enforcing this provision as written, the pricing would be significantly different or we would not offer the Services you or other users.

59.

Where you suffer any damages, loss, costs and expenses (damages) as the result partly of your own fault and partly of our fault then any damages which you are under this Agreement or at law able to recover from us are to be reduced to such extent as the court thinks just and equitable having regard to your contribution to the overall fault for such damages.

60.

You indemnify us and hold us harmless against any claim, action, damage, loss, liability or cost (including reasonable attorney fees) which we may incur (including for third party claims or investigations) caused or arising out of:

60.1

any breach by you of this Agreement (including warranties);

60.2

any negligence or wrongful act or omission by you in connection with this Agreement or you use of the Services; or

60.3

in respect of the Data you transmit via the Services or from any other activity you engage in via the Services.

Export Control

Your use of the Services (and the software that powers the same) is subject to any export or re-export technology control Laws applicable to you (Export Control Laws). You shall strictly comply with all such Export Control Laws and warrant you are not prohibited from receiving US origin software, goods or services.

Additional Services

61.

If at any time we offer and you subscribe for Additional Services then the clauses under this heading will apply. This Agreement will apply to the Additional Services including (to avoid any doubt) clauses 52 to 60.

62.

Where the Additional Services relate to the electronic archiving of Data by us (Hosting Services) you agree that:

62.1

we may provide the Hosting Services directly or via third party hosting service providers;

62.2

while we will take reasonable steps to ensure the redundancy and backup of such Data in no circumstances will we be liable to you for any loss, damage or corruption of such Data.

63.

Where the Additional Services relate to the formatting of your Data to a form and format required by a third party specified by you (End User) and/or distribution of such Data to the End User (Integration and Export Services) you agree that:

63.1

you have the right to distribute the Data to the End User and to authorise us to do so;

63.2

we make no guarantee or representation that our formatting of the Data will be error free or without corruption;

63.3

you will indemnity us from any claim by the End User or any other third party in respect of any error or corruption in respect of the Data formatted by us.

64.

If performing the Additional Services unless you give us notice to the contrary, we will assume that all of your employees, director or officers who give us instructions are authorised to do so and we can rely on the accuracy of any such instructions.

General

65.

You may not assign your rights under this Agreement without our prior written consent. We may use third parties to provide any part of the Services without notifying you or obtaining your consent. We may assign our rights and benefits under this Agreement without your consent or novate this Agreement (if we novate this Agreement you must consent to the same).

66.

We can only waive any of our rights under this Agreement by written notice to you.

67.

You must pay us all our costs (including reasonable attorney fees) incurred in enforcing our rights against you under this Agreement.

68.

This Agreement is governed by the laws of South Australia.

69.

Subject to clause 70 the parties submit to the non-exclusive jurisdiction of the courts of South Australia and the Federal Court of Australia (Adelaide Registry) in respect of any matter connected with this Agreement.

70.

We are entitled to bring proceedings in any court in any jurisdiction in which you are located or use the Services where, acting reasonably, we consider such court provides the most efficient or convenient means for us to enforce this Agreement and our rights under the same.

71.

Notice can only be in writing and be given to a party either by:

71.1

registered post to the addressee’s last known place of business or residential address (notice by post is deemed to be received at the time at which the letter would be delivered in the ordinary course of post). Our address is currently Suite 7, 132 O’Connell Street, North Adelaide, South Australia, 5006, Australia;

71.2

facsimile transmission to the addressee’s last known facsimile number (notice by facsimile transmission is deemed to be received when the sending machine confirms notice has been sent). Our current facsimile number is (a) if you are in the US 888 360 8988, and (b) for other areas +61 8 8360 8988; or

71.3

email to the addressee’s last known electronic address (notice by email is deemed to be received 48 hours after it is sent unless the sender receives a delivery failure or delay message). Our current email address is enquiries@constructionhive.com; or

71.4

by means of the Services or as otherwise set out in our Policies.

72.

Clauses 13, 36, 52 to 60 and 67 to 74.11 survive the termination of this Agreement.

73.

To the extent allowed by Laws you agree that all international conventions and treaties which would apply to this Agreement and which are excludable by the contracting parties are excludable from applying to this Agreement and the provision of Services under the same.

Interpretation

74.

In this Agreement:

74.1

singular includes plural and vice versa;

74.2

reference to a person includes a body politic or corporate, an individual and a partnership and vice versa;

74.3

a reference to you includes your employees and agents and any acts and omissions of the same will be deemed to be your acts and omissions;

74.4

a reference to a clause means all subclauses of a clause unless otherwise stated;

74.5

consent may only be given in writing;

74.6

no rule of construction applies to our disadvantage because we put forward this Agreement; and

74.7

if a provision of this Agreement would, but for this clause, be unenforceable:

74.8

the provision must be read down to the extent necessary to avoid that result;

74.9

if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of this Agreement.

74.10

Meanings

74.11

In this Agreement:

74.12

Additional Services mean any services we offer and you subscribe to which are additional to any free or baseline offering of the Services defined in paragraph (a) of the definition of Services from time to time and includes Hosting Services and Integration and Export Services.

74.13

Bankruptcy Event means you (a) have a resolution passed for winding up or liquidation if you are a company, (b) become insolvent or bankrupt, (c) cannot pay you debts as and when they fall due, (d) have proceedings brought against it under any bankruptcy or insolvency law and such proceedings are not discharged or stayed within 15 days, (e) become subject to the appointment of an administrator, provisional liquidator, trustee, receiver or similar official, or (f) causes or is subject to any event that has analogous effect to any of (a) to (e).

74.14

Content means all visual information and documentation we provide to you from time to time in respect of or by the Services.

74.15

Data means data and information (including Documents) you send or receive by means of the Services (including metadata) and in configuring and using the same and also includes the Enhanced Data.

74.16

Documents means each and every document (including technical reports and advice) you send or receive using the Services and includes metadata in the same.

74.17

email means any electronic message which is sent or received by you via the Services.

74.18

Enhanced Data means any data or report generated from the Data using the Technology and which is made available by means of the Services including new and updated functionality as made available from time to time.

74.19

Intellectual Property means all Intellectual Property rights, title and interest in anything including (a) copyright (including in computer software and source code, development and performance documentation, manuals, engineering documentation and price lists), and (b) all patent and design rights (registered or unregistered) and any applications for the same, and (c) the trade marks rights.

74.20

Laws means all applicable laws (general law, statute and equity) and mandatory standards which are in force in the place were you use the Services during the term of this Agreement.

74.21

Policies mean our policies from time to time in respect of the Services and includes our Privacy Policy.

74.22

Services means (a) the provision of our online services allowing you to send Data to other users and to receive Data from other users and the generation and use of Enhanced Data (current and any future versions) accessible from the website and includes a browser interface, data encryption, transmission, access, hosting and storage functionality and includes the Content and the Technology used in the same, and (b) any Additional Services.

74.23

Technology means all of our proprietary or licensed technology (including software, hardware and applications) used in providing the Services including any used to generate any Enhanced Data.

74.24

user means any user of the Services including you where applicable.

74.25

we or us means (a) Spectra QEST America Corp in North America, (b) elsewhere Spectra QEST Australia Pty Ltd (Australian Company Number 120 735 408).

74.26

you means you as an individual and if entering this Agreement for a company or entity the employees of the company and entity who you authorise to use the Services.