Welcome to www.ownerbuilderspecialists.com.au. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “Owner Builder Specialists Services”).
The Owner Builder Specialists Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, our Privacy Policy at www.ownerbuilderspecialists.com.au/privacy), the Guidelines (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Owner Builder Specialists Platform or made available to you on or through the Owner Builder Specialists Services
(collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and Supplier (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE OWNER BUILDER SPECIALISTS SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE OWNER BUILDER SPECIALISTS PLATFORM OR THE OWNER BUILDER SPECIALISTS SERVICES.
Supplier may, at its sole discretion, elect to suspend or terminate access to, or use of the Owner Builder Specialists Services to anyone who violates these Terms.
If you register for a free trial of the Owner Builder Specialists Services, the applicable provisions of these Terms will govern that Free Trial.
If you register for use of the Owner Builder Specialists Services as part of an authorised Educational Trial, the applicable provisions of these Terms will govern that Educational Trial.
Account – the primary means for accessing and using the Owner Builder Specialists Services, subject to payment of a Fee designated in the selected Plan;
Agreement – means this Terms of Service agreement and the terms and conditions (“Terms”) contained therein and includes any notices published on the Owner Builder Specialists Platform;
Approved Purpose – means the use of data for provision of the Owner Builder Specialists Services, or as required by law;
Authorisation – the set of rights and privileges on the Owner Builder Specialists Website assigned to a User by a Client;
Owner Builder Specialists – the Supplier of the Owner Builder Specialists; Workflow, software-as-a-service, the Mentorship, Consultant and Construction services, any products and other related services;
Owner Builder Specialists Materials – the visual interfaces, graphics, design, systems, methods, information, computer code, software, trademarks, services, “look and feel”, organisation, compilation of the content, code, data, and all other elements of the Owner Builder Specialists Services and Owner Builder Specialists Platform;
Owner Builder Specialists Services – the Owner Builder Specialists software as a service including related Website, Services, System, Content, Interfaces, Portals and all content, services, Data and/or
i. products available on or through the Owner Builder Specialists
Platform that is used to access describe or enable Owner Builder
Specialists to show or deliver its Services; and
ii. information exported out of the Owner Builder Specialists Platform in
the form of reporting or third-party visualisation tools;
Client – a natural or legal person who has accepted these Terms with the Supplier;
Commencement Date – means the date a Client first registers online (either through a trial, or by paying a subscription Fee) or otherwise with Supplier or otherwise confirms acceptance of this;
Content – any data and information available through Owner Builder Specialists Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Data – files and any other digital data and information including but not limited to Personal Information and Personal Data, which is subjected to, created by or inserted into the Owner Builder Specialists Services or otherwise inserted to the System by Owner Builder Specialists or the Client (including the specific Users, Customers, Sub Contractors, Organisations, Tasks, Descriptions, Templates, Supplier Data, Estimates, Jobs associated with the Client);
Educational Trial – access to enable authorised training bodies to include the Owner Builder Specialists Services as part of their teaching materials and online learning management systems in their courses for building and construction.
Student Users are provided access for non-commercial use to the Owner Builder Specialists Services for a period defined in the agreement with their authorised training body;
Enterprise Customer – has an arrangement with Supplier for multiple Clients to share branding, and share information with the Enterprise Customer, as set out in agreements between the Enterprise Customer and their Clients and the Clients Users;
Fee – regular payment for using the activated Account to access and use Owner Builder Specialists Services;
Files – documents of any kind (images, drawings, spreadsheets, text files, etc.) that are inserted to the System by the Client, and usually associated with a particular contact, customer, organisation, estimate or job;
Free Trial – temporary access for the purposes of trying out the Website and Owner Builder Specialists Services in accordance with any selected Plan without paying a Fee;
Guidelines – additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Owner Builder Specialists Services;
Personal Information – is information about an identifiable individual that is normally included in Data, and may include information such as the individual’s name, email address, telephone number, address and company information;
Plan – various criteria related to the use and functionality of the Owner Builder Specialists Services and on which the Fee is based;
Rate Sheet – Means the then current pricing documentation made available to Clients on the Website or provided by Supplier to its Clients, the content of which may be varied at any time and from time to time;
Subscriber – Means a person who is a User of the Owner Builder Specialists Services;
Supplier – Jomarlie Pty Ltd (ACN 671 744 988) as trustee for Kirby Genesis Trust (ABN 942 552 525 93) trading as Owner Builder Specialists a company established under the laws of Australia, having its principal place of business at Level 1, 133 Market Street South Melbourne Vic 3205;
System – the integrated cloud “software as a service” computing solution for providing the Owner Builder Specialists Services, including applications, software, databases, Data, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
User – a natural person granted with the Authorisation to use the Account on behalf of a Client. Unless otherwise set out in a separate agreement, or the User is in an Educational Trial, each user is a Paying Subscriber;
Website – means the internet site with the URL www.ownerbuilderspecialists.com.au, www.ownerbuilderspecialists.com, www.ownerbuilderspecialists.au, www.ownerbuilderspecialists.net.au and any other site that Supplier may use or provide its Clients in respect of the Owner Builder Specialists Services;
2.Term
This Agreement commences on the Commencement Date and will continue to apply until it is terminated in accordance with clause 12. For the avoidance of doubt, the terms and conditions of this Agreement continue to apply regardless of any changes in the type of subscription which may be varied at any time and from time to time.
3. The Owner Builder Specialists Services
3.1 Use of Owner Builder Specialists Services
For the duration of the Term, Supplier grants a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited licence to the Client and its Authorised Users to:
3.2 Technical Support
Supplier shall provide reasonable technical support to Client and its authorised User at the reasonable request of the Client. Supplier shall respond to enquiries of support from a Client utilising the contact methods set forth below as soon as reasonably possible or as advertised on the Owner Builder Specialists Platform including our Website from time to time. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient or may not occur at all.
The contacts for all enquiries of support are:
3.3 Modifications to Services
Supplier reserves the right to modify the Owner Builder Specialists Services or any part or element thereof from time to time without prior notice, including, without limitation:
As applicable, Client may be notified of such modifications when logging in to the
Account. Client will be notified of rate changes with their reminder they receive 30 days before their 6 monthly renewal Modifications.
If the Client does not accept the Modification, the Client shall notify Supplier before the Effective Date of the Modification, and these Terms will terminate on the Effective Date of the Modification except for Terms surviving such termination of this Agreement. On or before the Effective Date the Client must cease use of the Owner Builder Specialists Services.
The Client’s continued use of the Owner Builder Specialists Services, or any part or element thereof, after Effective Date of each or any Modification shall indicate its consent to the Modification and to all Terms then applying. Supplier shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Owner Builder Specialists Services, or any part or element thereof.
4. Using the Owner Builder Specialists Services
Mentoring is defined as a professional relationship (not a legal business partnership) between the Mentor and the Mentee. It is designed to facilitate an open exchange of ideas, skills and knowledge; to inspire the Mentee to maximise their potential. It should not be treated as specific ‘advice’.
The Mentee is solely responsible for creating and implementing their own decisions, choices, actions and results arising out of or resulting from the mentoring relationship. As such, the client agrees that the Mentor, nor Owner Builder Specialists, is not and will not be liable or responsible for any actions or inaction, or for any direct or indirect result of any services provided.
Owner Builder Specialists accepts no liability for advice given beyond a refund of the services fee.
Services must be paid for in full before the appointment. All appointments are binding, and there is only a refund for missed or cancelled appointments if 24-hour notice has been given before the appointment time. Late arrivals will result in reduced appointment time with no reduction in cost.
Owner Builder Specialists may offer discounted services, including exclusive services at 50% off for the first meeting with an Owner Builder Coach (builder). If it is determined that this is not the client’s first time using our services, the client agrees to be billed the normal costs of the service.
Construction Services is as any work carried out in connection with the construction. Examples of this work include but are not limited to; site inspections, building inspections, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, and refurbishment, demolition, decommissioning or dismantling of a structure. Construction work can be commercial, civil or housing construction and includes the following: − any installation or testing carried out in connection with an activity referred to in the above definition − the removal from the workplace of any product or waste resulting from demolition − the prefabrication or testing of elements, at a place specifically established for the construction work, for use in construction work − the assembly of prefabricated elements to form a structure, or the disassembly of prefabricated elements forming part of a structure − the installation, testing or maintenance of an essential service in relation to a structure − any work connected with an excavation − any work connected with any preparatory work or site preparation including landscaping as part of site preparation carried out in connection with an activity referred to in the above definition, or − an activity referred to in the above definition, carried out on, under or near water including work on buoys and obstructions to navigation.
Consultant Services is as any work carried out in connection with the construction regardless of whom is building it. Examples of this work include but are not limited to; estimating, take-off’s, quoting, reviews, building administration, plan creations and amendments, engineering, town planning, cash flow management, ordering, sourcing trades.
The Client is solely responsible for creating and implementing their own decisions, choices, actions and results arising out of or resulting from the construction relationship. As such, the client agrees that the consultant, nor Owner Builder Specialists, is not and will not be liable or responsible for any actions or inaction, or for any direct or indirect result of any services provided.
Owner Builder Specialists accepts no liability for advice given beyond a refund of the services fee.
Products is any saleable item sold through Owner Builder Specialists.
Owner Builder Specialists accepts no liability for advice given beyond a refund of the products fee.
Services must be paid for in full before the appointment. All appointments are binding, and there is only a refund for missed or cancelled appointments if 24-hour notice has been given before the appointment time. Late arrivals will result in reduced appointment time with no reduction in cost.
Owner Builder Specialists may offer discounted services, including exclusive services at 50% off for the first meeting with an Owner Builder Coach (builder). If it is determined that this is not the client’s first time using our services, the client agrees to be billed the normal costs of the service.
4.3 Building Inspections
The inspection will be carried out in accordance with Australian Standard (AS4349.1-2007) concerning inspections of residential dwellings. Owner Builder Specialists will carry out the inspection and report as requested by the client in accordance with these Terms and Conditions.
Terms and Conditions
4.3.1 This report complies with Australian Standard (AS4349.1-2007) concerning inspections of residential dwellings.
4.3.2 The purpose of the inspection
4.3.2.1 The inspection is to provide advice in relation to the overall condition of the property on the date and at the time of the inspection with the Consultant having access to all areas. Areas not inspected are noted on this report.
4.3.2.2 Areas for inspection shall cover all safe and accessible areas defined as those which can be accessed by a 3.6m ladder on the ground or those which have at least 650mm unimpeded vertical and horizontal clearance without the removal of furniture, fittings, cladding or lining materials, plants or soil. Such access does not include the use of destructive or invasive inspection methods nor does it include removing screws and bolts to access covers or cutting or making access traps or moving furniture, floor coverings or stored goods.
4.3.2.3 In the case where a property is occupied, the client must be aware that personal items and furnishings may restrict access to rooms and limit vision in places. These household items may conceal signs of problems which may only be discovered once items have been shifted or removed.
4.3.3. The scope of the inspection
4.3.3.1 The inspection comprised a visual assessment of the property to identify major defects and to form an opinion regarding the general condition of the property at the time of the inspection.
4.3.3.2 An estimate of the cost of rectification of defects is outside the scope of the Standard and does not form part of this report.
4.3.3.3 The report does not cover any part of the building located beneath the ground surface (such as sewer, stormwater drains, plumbing, electrical, phone/data or gas, etc.) except in the case of a Base Stage inspection, if these areas are visible.
4.3.3.4 This report does not deal with non-standard inspections such as electrical installation or other specialist inspections (such as plumbing, hydraulics, mechanical services or geotechnical). Owner Builder Specialists will recommend that an appropriately qualified or licensed contractor undertake such further inspections where applicable.
4.3.3.5 The inspection will not look for timber pest activity. However, if timber pest damage is found then it will be reported. The Inspector will only report on the damage which is visible. It is recommended to have an inspection carried out in accordance with AS4349.3-1998 Timber Pest Inspections by a fully qualified, licensed and insured Timber Pest Inspector.
4.3.3.6 The report does not cover the identification of asbestos related products.
4.3.3.7 The report does not determine whether the building complies with the provisions of any Act, regulation, ordinance, local law, bylaw, or as an insurance policy or a warranty against problems developing with the building in the future.
4.3.3.8 The report does not contain the assessment of any apparent defect including rising damp and leaks as the detection of which may be subject to prevailing weather conditions or recent occupancy or use of services.
4.3.3.9 The report may not cover issues of maintenance or specific minor defects (such as jamming doors, windows or catches decorative finishes or hairline or slight cracks). The report may include a general assessment of the general incidence of minor defects in the building compared with otherwise similar properties.
4.3.3.10 The report shall identify any observed item that may constitute a present or imminent serious safety hazard.
4.3.3.11 The roof has not been water-tested for leaks, or the guttering checked for levels.
4.3.3.12 The report and inspection does not assess the condition of conspicuous, non-structural items such as carpets, vinyl floor coverings etc. or the operation of any appliances, spa pumps or pool equipment or matters of privacy or vehicle access. Such matters are for the client’s own consideration.
4.3.3.13 If the property is part of a Strata or Company title, then the inspection will cover the interior and immediate exterior of the property to be inspected. It does not cover the common areas. Subsequently, it is recommended that the client obtain an inspection of the common property prior to any purchase decision.
4.3.4 The report is prepared for the sole and exclusive use of the client whose name appears on page 1 of the Report and cannot be used or acted upon by any other party or without express written permission of Owner Builder Specialists. The report does not constitute a certificate of compliance of the property within the requirements of any Act, regulation, ordinance, local law or by law and does not warranty against problems developing with the building in the future.
4.3.5 Owner Builder Specialists accepts no liability for advice given in this report beyond a refund of the inspection fee.
4.3.6 Owner Builder Specialists accepts no responsibility for any building work undertaken without the requisite building permit from the relevant authority and the report does not identify such unauthorised building work or work that is not compliant with building regulations in force at the time.
4.3.7 The report does not cover the identification of non-compliant and non-conforming building products and materials as outlined within the requirements of the National Construction Code (NCC).
4.3.8 The inspection report is valid for one month only from the date of the inspection.
4.4 Subscription Type
Supplier provides different Subscription Types to support the needs of different Clients and organisations in accessing Owner Builder Specialists Services.
Subscription Types include:
Subscription Services provided by the Supplier are related to the Subscription Type a Client subscribes to.
4.5 Establishing an Account
Certain features, functions, parts or elements of the Owner Builder Specialists Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
4.5.1 Clients
Each Client may have only one Account and if desired multiple Users always in accordance with the Subscription Type. If two or more persons use or access an Account on behalf of Client, Client must designate such persons as individual paying Users. Each such User shall be subject to the restrictions set forth in these Terms. For the avoidance of doubt, each User must have their own unique ID created in the Account of the Client
If Client has designated Users and granted them Authorisation, such Users will be deemed to be authorised to act on behalf of Client when using the Account. Supplier is not responsible for verifying the right of representation or validity of Authorisation of any User. However, Supplier may ask additional information or proof of the person’s credentials.
4.5.2 Users
The Client and any User associated with an Account must provide Supplier with true, accurate, current, and complete information including Personal Information about the Client, Users or Account and keep such information up to date.
4.5.3 Enterprise Customers with Multiple Clients
Enterprise Customers may have arrangements with Supplier to allow their Clients to be grouped under that Enterprise Customer. In this case there may be sharing of information from the Client to the Enterprise Customer as set out in the agreements between the Enterprise Customer and their Clients. Supplier provides such information sharing as directed by or agreed with Enterprise Customer and Supplier.
An Enterprise Customer will have an Account that allows these arrangements to be managed and can have Users in their own right.
4.6 Logging into an Account
Supplier shall provide Client with a username and password (“Login Credentials”) to be used to log in to its Account. These Login Credentials are for single User use only and must not be used by multiple persons. If Client has designated several Users, each User will be provided with separate Login Credentials. Client and each User are responsible for keeping confidential all login credentials associated with an Account. Client must promptly notify Supplier of any disclosure, loss or unauthorised use of any Login Credentials. For the avoidance of doubt, each User is not permitted to share their login credentials with another Client to log on to the Services either at the same time, or at a different time, on either the same device, or alternate device.
4.7 Termination of an Account
Client may terminate these Terms at any time as provided in Clause 12. Supplier shall deactivate the Account as soon as reasonably practicable after the effective date of the termination (“Termination”). No Data is available to the Client after Termination and the Supplier makes no warranty as to the availability or capability to transfer, use or export any Data after Termination, or that any previously saved Data will be available for use in the resumption of Owner Builder Specialists Services after Termination.
4.8 Payment Failure of Subscription
By signing up for our subscription, you agree to allow retry debits on your bank account for missed payments. In the event that the first payment fails, your account will be suspended until the payment issue is resolved.
If the retry does not succeed, you agree to allow a debt recovery agency to recoup the missed payment, as well as any future payments remaining on the subscription. You also agree to pay any agency collection fees incurred, along with any time spent on recovery by Owner Builder Specialists at $85 per hour.
4.9 Fees
The use of an Account is subject to a Fee. Upon sign-up for an Account, the Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance or on 12 monthly payment intervals, unless agreed otherwise between parties.
All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be allocated as agreed by the parties. If, after signing up, Client elects to cancel regardless of the remaining balance, the full amount must still be paid.
A new Client may be entitled to a Free Trial. The Client is required to provide credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the Client is required to select a suitable Plan and pay the first Fee.
5. Client Data
5.1 Uploading Client Data to Platform
If the Client uploads or enters Data to the Platform, such Data is defined as Client Data and any processing of such Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organisations) whether posted and/or uploaded by Client or made available on the Owner Builder Specialists Services by Supplier.
By uploading Client Data to the Platform, Client authorises Supplier to process the Client Data and generate other data and information from Client Data.
Information including Data supplied by other third parties under license to Owner Builder Specialists or generated or created by Owner Builder Specialists Services is the result of algorithms and processes that are the exclusive property of Owner Builder Specialists or of a Licensor of Owner Builder Specialists and the Client is permitted to use such Data in the normal conduct of its business but not for other than the Approved Purposes under these Terms. Owner Builder Specialists or its licensors has right title and interest in all Information and Data other than Client Data and Personal Data. For the avoidance of doubt the Client does not have the right to control, share, exploit or commercially sell or deal with Data for any other purpose than defined herein except the Client has the right to use the subset limited to the Client Data.
Owner Builder Specialists may offer additional Services that we expect would be helpful to you our Clients, or to your customers and some of these Services may wish to include some Client Data and or Personal Data. If we propose to offer these Services that rely on your Client Data and/or Personal Data, your permission will first be sought on an Opt-In basis. You will have the option to accept or decline to participate and if you decline such data will not be used.
The Client is responsible for ensuring that:
5.2 No Guarantee of Accuracy
Supplier does not guarantee any accuracy with respect to any information contained in any Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Owner Builder Specialists Services. You understand that all information contained in Data is to be used only for Approved Purposes under these Terms and its accuracy and use is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not Supplier, is entirely responsible for all Data that is uploaded, entered, transmitted, or otherwise made available through the Owner Builder Specialists Services, as well as for any actions taken by the Supplier or other Clients or Users as a result of such Data.
5.3 Unlawful Client Data
Supplier is not obliged to pre-screen, monitor or filter any Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Data or the action of its unlawful processing is discovered or brought to the attention of Supplier or if there is reason to believe that certain Data is unlawful, Supplier has the right to:
If Supplier is presented convincing evidence that the Data is not unlawful, Supplier may, at its sole discretion, restore such Data, which was removed from the Website or Account or access to which was restricted.
In addition, in the event Supplier believes in its sole discretion Data violates applicable laws, rules or regulations or these Terms, Supplier may (but has no obligation), to remove such Data at any time with or without notice.
The Client indemnifies the Supplier from any actions that arise out of the Client entering unlawful Data into the Owner Builder Specialists Services as per clause 10.
5.4 Compelled Disclosure
Supplier may disclose a Client’s confidential information including Personal Information to the extent compelled by law to do so. In such instance, Supplier will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Supplier is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which Supplier is a party, and Client is not contesting the disclosure, Client will reimburse Supplier for its reasonable cost of compiling and providing secure access to that confidential information.
6.Pricing
Upon sign-up for an Account, the Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on 12 monthly payment intervals, unless agreed otherwise between parties. You agree to authorise a recurring payment fee.
6.1 Standard Pricing
The standard pricing options for each subscription type are shown on the Owner Builder Specialists Services pricing page.
7. Restrictions
7.1 Prohibited Activities
Client and its authorised Users may use the Owner Builder Specialists Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
7.2 Certain Uses Require Supplier Consent
The Client or any User may not, without Supplier’s prior express written consent (e-mail, fax, Skype, etc.):
8. Privacy
Supplier takes the privacy of its Clients and Users very seriously. Supplier’s Privacy Policy at www.ownerbuilderspecialists.com.au/privacy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs Supplier’s collection, use, and disclosure of Client’s or User’s personal information.
9.Intellectual Property
9.1 Reservation of Rights and Ownership
Supplier reserves all rights not expressly granted to you in this Agreement. The Owner Builder Specialists Materials are protected by copyright and other intellectual property laws and treaties. The Supplier owns the title, copyright, and other intellectual property rights in the Owner Builder Specialists Services and Owner Builder Specialists Materials and Platform. The Owner Builder Specialists Services are licensed to you only on a subscription basis for which you pay a Fee and are not sold to you.
9.2 Prohibited Use of Owner Builder Specialists Materials
You agree that it is illegal and strictly prohibited to copy, reproduce, distribute, or use the Owner Builder Specialists Materials, including the workflows, in any manner outside of the Owner Builder Specialists Platform. Such actions constitute a violation of intellectual property laws and this Agreement.
9.3 Warranty
Supplier represents and warrants that he has full title and ownership to the Owner Builder Specialists Application and has the authority to grant the license hereunder. To the best of the Supplier’s knowledge the Owner Builder Specialists Application does not infringe upon the intellectual property rights of any third party and that it has not received any notice regarding any alleged infringement thereof.
10. Indemnification
You agree to defend, indemnify and hold harmless Supplier and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Owner Builder Specialists Services, Owner Builder Specialists Materials, representations made to the Supplier, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Supplier reserves the right, at its own expense, to assume the exclusive defence and control of any matter for which you are required to indemnify Supplier, and you agree to cooperate with such defence of these claims.
11. Limitation of Liability
11.1 Warranty Disclaimer
In so far as is permitted by law, the Owner Builder Specialists Services and its related material are provided on an “AS IS” basis and without warranty of any kind. The Supplier expressly disclaims all other warranties, expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
11.2 Software and Internet Performance Disclaimer
Problems may arise with the system from time to time. While we strive to maintain its functionality, occasional issues may occur. Once the issues are bought to our attention, we are committed to promptly addressing any system-related problems to minimise disruption. However, the supplier disclaims any liability resulting from or relating to such events.
Supplier does not and cannot control the flow of data via the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt the internet. Supplier will use commercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur. Accordingly, Supplier disclaims any liability resulting from or relating to such events.
11.3 Exclusion of Incidental, Consequential and Certain Other Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SUPPLIER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT, AND EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.4 Limitation of Liability
In no event shall the Supplier’s liability exceed license fee paid for single month, if any.
12. Termination
12.1 For Convenience
These Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below:
12.3 For Default
These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
12.3 Effect of Termination
Upon termination of these Terms,
12.4 No Refunds
Except where this Agreement is terminated as a result of breach by Supplier or as required by law, the Client is not entitled to any refund of all or part of the Fees paid but not used (whether in respect to the number of Authorised Users or length of use of the Owner Builder Specialists Application or otherwise) and on termination and in all other circumstances Supplier is entitled to retain all Fees and amount paid by the Customer, whether in advance under a Subscription or otherwise.
12.5 Remedies
If Supplier terminates these Terms as a result of an uncured breach by a Client or User, Supplier is entitled to use the same or similar remedies against any other persons who use the Owner Builder Specialists Services in conflict with these Terms. Notwithstanding the foregoing, Supplier may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the Owner Builder Specialists Services.
If Supplier has reasonable grounds to believe that the Client’s or User’s use of the Owner Builder Specialists Services, including the Account may harm any third persons, Supplier has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
13. Modifications to Terms
Supplier reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Website, Owner Builder Specialists Platform or the Owner Builder Specialists Services. Please check these Terms periodically for changes. Your continued use of the Owner Builder Specialists Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the Owner Builder Specialists Services, or (ii) 30 days from posting of such modified Terms on or through the Owner Builder Specialists Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Supplier will be governed by the Terms in effect at the time such dispute arose.
14. Dispute Resolution
14.1 Dispute resolution procedure If a party believes that there is a dispute regarding this Agreement or the Subscription Services, it must not commence court proceedings (unless urgent interlocutory relief) without first complying with the following dispute resolution procedure:
(Dispute Notice)
14.2 Mediation
the President of the Law Society of Victoria or their representative will appoint the mediator and determine all procedural matters in relation to the mediation.
14.3 Costs The Disputing Parties must bear its own costs of complying with this clause and the Disputing Parties must bear equally the costs of any mediator engaged.
14.4 Court Action Nothing in this clause prevents a party taking any court action where the proceedings are to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute to preserve property or rights or to avoid any losses, costs, charges, claims, liabilities or expenses which are not compensatable in damages.
15.1 Entire Agreement
This Agreement, including the Rate Sheet, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
15.2 Force Majeure
If a party is prevented, hindered or delayed from performing its obligations under this agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
15.3 Assignment
The Client may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Supplier. Supplier may assign, novate or otherwise deal with all or part its rights under this Agreement at any time and from time to time, which will be effective immediately upon Supplier notifying its Clients of the assignment or novation.
15.4 Partial Unenforceability
In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, then such provision shall be severed from this Agreement. In all other respects, the remaining provisions of this Deed shall remain in full force and effect.
15.5 Attorneys
Each person who executes this Deed on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this Deed under that power.
15.6 Rights, Remedies Additional
Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
15.7 Waiver
The failure by a party to enforce at any time or for any period any one or more of the terms and conditions of this Agreement shall not be a waiver of those rights nor of the right at any time subsequent to enforce all of the terms and conditions of this Agreement. A waiver of any power or right under this Agreement:
15.8 Survival
The obligations under this Agreement are of indefinite duration and the following provisions shall survive termination or cessation of this Agreement (however occurring): Sections 1, 5.4, 7, 8, 9, 10, 11, 14 and 15.
15.9 Joint and Several
An agreement warranty representation or obligation which binds or benefits two or more persons under this Agreement binds or benefits those persons jointly and separately.
15.10 Costs
Each party will bear its own costs with respect to the negotiation and preparation of this Deed, and the implementation of the transactions contemplated by this Deed.
15.11 Notices
Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Owner Builder Specialists Services administrator designated by you.
15.12 Governing Law
This Agreement will be construed and interpreted in accordance with the laws of the state of Victoria, Australia and each party submits to the nonexclusive jurisdiction of courts of that jurisdiction.
