CONSTRUCTION MAPS SOFTWARE AS A SERVICE TERMS AND CONDITIONS ACCEPTANCE
ConstructionMaps (ABN 32 516 798 971) (we or us) own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at constructmaps.com, cid.constructionmaps.com.au and maps.construction.com.au (Site)
These terms and conditions (Terms): set out the terms and conditions upon which we agree to grant you a right to use the Software as a service, as described on the Site (SaaS Services) and provide any other services as set out in these Terms (together with the SaaS Services, the Services); and are binding on you from the date (Effective Date) on which we provide you with an account to enable you to access and use the Services (Account) until the date on which your Account is terminated in accordance with these Terms (Term).
PLEASE READ THESE TERMS CAREFULLY AND IMMEDIATELY TERMINATE YOUR ACCOUNT IF YOU DO NOT AGREE TO THEM.
BY CREATING AN ACCOUNT AND/OR ACCESSING AND/OR USING THE SERVICES, YOU:
warrant to us that you have reviewed these Terms (with your parent or legal guardian if you are under 18 years of age), and you understand them;
warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Services and they have agreed to these Terms on your behalf;
warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services;
warrant to us that you have all hardware, software and services which are necessary to access and use the Services; and
agree to use the Services in accordance with these Terms.
REGISTRATION AND ACCOUNT
You will be required to create an Account with us in order to access and use the Services. You must ensure that any personal information you give us when creating an Account is accurate and up-to-date.
You must provide basic information when registering for an Account including name, email address, company and company logo and you must choose a password.
It is your responsibility to keep your Account details confidential. You are liable for all content posted and all activity on your Account, including purchases made using your Account details and content posted by others who have logins or accounts associated with your Account, and you must immediately notify us of any unauthorised use of your Account.
Your Account may begin with a free trial. The free trial period of your Account will last for the period specified on the Site. We determine free trial eligibility in our sole discretion and we may limit eligibility to prevent free trial abuse. We reserve the right to revoke the free trial ad suspend your Account at any time in the event that we determine that you are not eligible.
You must not (and ensure the authorised users do not) create multiple Accounts in order to obtain more than one free trial.
At our sole discretion, we may refuse to allow any person to create an Account.
We collect personal information about you in order to enable you to access and use the Site, to contact and communicate with you and to respond to your enquiries.
We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide the Services to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.
In consideration for payment of the fees, as set out on the Site (Fees), for your chosen annual plan which provides for certain service features for one authorised user, as set out in your Account (Plan), we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the SaaS Services for the Term (SaaS Licence).
YOU AGREE THAT:
the SaaS Licence permits you to access and use the SaaS Services in accordance with the number and type of authorised users, as set out in your Account or otherwise agreed by us;
if the number of authorised users is exceeded we may charge a fee for each additional authorised user as specified on the Site; and
we reserve the right at any time and from time to time to: (i) refuse any request in relation to the SaaS Services that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms; and/or (ii) modify or discontinue, temporarily or permanently, access to the SaaS Services (or any part thereof) with notice; and (iii) change or remove features of the SaaS Services provided that, where there is any material alteration to the SaaS Services in accordance with this clause, we will provide you with 20 business days’ notice.
We may contact you to warn you that you have exceeded the included features or other limits of your Plan.
You acknowledge and agree that these Terms incorporate by reference the terms of any acceptable use policy as set out on the Site or as provided to you from time to time.
You must not (and must ensure the authorised users do not) access or use the SaaS Services except as permitted by the SaaS Licence and you must not do, omit to do, or authorise any act that would or might invalidate or be inconsistent with our intellectual property rights in the SaaS Services or Software. Without limiting the foregoing provisions, you must not and must not permit any other person to:
resell, assign, transfer, distribute or provide others with access to the SaaS Services;
“frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software;
alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the SaaS Services or Software;
use the SaaS Services in any way which is in breach of any applicable local, state, federal and international laws and regulations (Laws) or which infringes any person’s rights, including intellectual property rights;
use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
introduce malicious programs into our hardware and software or our hardware, software and services which are integrated and operate together, including our networks (Systems), including viruses, worms, trojan horses and e-mail bombs;
reveal your Account password to others or allow others to use your Account (other than authorised users);
use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the SaaS Services;
send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”);
use the SaaS Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers; or
solicit or entice away, any person or organisation that was our actual or prospective, client, employee, contractor, representative, agent, or developer during the Term.
During the Term, we will provide you with email support during business hours, provided that (i) you notify us in accordance with any applicable systems and processes set out on the Site and (ii) where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you or your personnel have done in relation to the fault).
We reserve the right to refuse any request for or in relation to email support that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms.
Should you require support in relation to payments made on the site, please contact Braintree through their site www.braintreepayments.com/au.
Licence: You grant us and our sub-processors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, copy, back-up, process, transmit, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the information, documents and other data you, your personnel or any authorised users provide to us or upload to the SaaS Services (Data):
to supply the Services (including enabling you, your personnel and authorised users to access and use the SaaS Services and to create Maps);
to test, enhance and otherwise modify the Services whether requested by you or not;
as reasonably required for the performance of our obligations under these Terms.
We do not guarantee that any file you upload will work with the Software.
We do not store your Maps on our Software or through our Services. If you wish to save your work for future use, you must export the Maps through the functionality in our Software. To edit your Maps further, you must then upload your Maps through the functionality in our Software.
Moral Rights: If you or any of your personnel have any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any Data, you (and you will ensure that your personnel) consent to the infringement of those Moral Rights by us or our personnel.
General: You must, at all times, ensure the integrity of your Data and that your use of your Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) your Data and its transfer to and use by us as authorised by you under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies. We assume no responsibility or liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing or transmitting it.
Removals: We have no obligation to monitor any content uploaded to the SaaS Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the SaaS Services. We have no liability to you for removing your Data from the SaaS Services.
YOUR RESPONSIBILITIES AND OBLIGATIONS
You must, at your expense:
provide us with all materials and all reasonable assistance and cooperation in order for us to supply the Services in an efficient and timely manner, including obtaining from authorised users any consents necessary to allow you and your personnel to engage in the activities described in these Terms and to allow us to provide the Services;
provide us and our personnel with reasonable access to your computing environment, including all Systems, information technology and telecommunications services (Computing Environment), if necessary for us to supply the Services;
ensure that only your personnel and authorised users access and use the SaaS Services and such use and access is in accordance with the terms and conditions of the SaaS Licence;
ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and
make any changes to your Computing Environment, such as system upgrades, that may be required to support the delivery and operation of any Services.
You must pay us the Fee for your Plan and any other amount payable to us under these Terms, without set off or delay, via the Braintree platform or any other payment method set out on the Site.
The Fee for your Plan is payable in advance of the next annual billing cycle for your Plan and any additional charges will be billed in arrears at the end of the Plan cycle (unless otherwise agreed).
You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Site. The Fee for your Plan is based on the number of authorised users in the month before the commencement of the next Plan billing cycle.
You will be notified (immediately and again after two days) if you exceed the current authorised user allowance for your Plan.
If there is a variation to your Plan or SaaS Licence during the Term, we will include the fees due and payable for the variation performed in invoice(s) subsequent to the performance of the variation.
The Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Plan (or part thereof), Plan downgrade or unused Accounts. Downgrading your Plan may result in the loss of content, features or capacity of your Account. We do not accept any liability for any losses or damages that may arise in such cases.
We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Plan. Any trial period can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services.
If you upgrade or downgrade your Plan, the credit card linked to your Account will automatically be charged the Fee for your new Plan in advance of your next Plan billing cycle. Please ensure that this credit card has sufficient funds to pay the Fee. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Fee for the Plan, which will accrue to your Account until we receive a cancellation notice.
All Fees include GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
The Fee is subject to change upon 30 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account in accordance with clause 12(a).
If any payment is not made in accordance with our payment terms, we may (at our absolute discretion):
immediately cease providing the Services to you and recover as a debt due and immediately payable from you our additional costs of doing so;
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the due date of payment; and/or
engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts.
INTELLECTUAL PROPERTY RIGHTS
All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software and the Services) will at all times vest, or remain vested, in us.
We may use APIs and other licensed intellectual property of third parties in the provision of the Services, such as the ESRI API. You must not cause us to breach the terms of any such licenses through your acts or omissions, or the acts or omissions of your personnel and authorised users.
We acknowledge that the Software and the Site uses icons from www.flaticon.com.
You must not, without our prior written consent:
copy or use, in whole or in part, any of our intellectual property;
reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
breach any intellectual property rights connected with the Site, the Software or the Services, including (without limitation) altering or modifying any of our intellectual property; causing any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property.
You may use the Software and the Services to create and export maps in various forms (Maps). we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Maps during and after the Term.
This clause 10 will survive termination of your Account.
INDEMNITY AND LIABILITY
Despite anything to the contrary, to the maximum extent permitted by the law:
our maximum aggregate liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed the total amount of Fees you paid to us in the year in which the liability arose; and
we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Despite anything to the contrary, to the maximum extent permitted by the law, we have no liability, and you release and discharge us from all liability, arising from or in connection with any:
any damage, injury or loss to any person or property;
failure or delay in providing the Services;
unavailability, outage or interruption to the Services or your Systems; or
breach of these Terms or any Laws,
where caused or contributed to by any:
the use of the Maps by you, your related parties, personnel or a third-party service provider
event or circumstance beyond our reasonable control;
a fault, defect, error or omission in your Computing Environment or Data; or
act or omission of you, your related parties, personnel or a third-party service provider,
and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.
Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
YOU ACKNOWLEDGE AND AGREE THAT:
you are responsible for all users using the Services, including your personnel and any authorised users;
you use the Services and any associated programs and files at your own risk;
the accuracy of the marks in the Services may vary depending on the aerial image and the datum you use in relation to the Services. In general, the aerial image has a displacement of approximately 5 metres;
the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
we may use third-party service providers to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services;
we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
any collation, conversion and analysis of Data performed as part of the Services (whether by the Services or otherwise) is likely to be subject to human input and machine errors, omissions, delays and losses, including any loss of Data; we are not liable for any such errors, omissions, delays or losses; and you are responsible for adopting reasonable measures to limit the impact of such omissions, delays losses and errors;
we may relocate the Data to another jurisdiction, in which case we will give you 15 business days’ notice and use all reasonable endeavours to minimise the effect of such change on your access and use of the Services;
we are not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your personnel, your related bodies corporate or any authorised users;
we are not responsible for the integrity or existence of any Data on the Computing Environment, network or any device controlled by you or your personnel; and
we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
Despite anything to the contrary, to the maximum extent permitted by law, you must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any claim relating to your Data, your use of the Services or any breach of these Terms by you.
This clause 11 will survive termination of the Account.
You may only terminate your Account using the ‘cancel subscription’ or similar functionality set out in the settings of your Account. No refunds will be given upon termination in accordance with this clause 12(a).
We may, at any time and at our sole discretion, suspend or terminate your Account for any reason. You must ensure that all your Data on the SaaS Services is backed up so that you do not lose your Data if we suspend or terminate your Account. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Services or other users, we may suspend or terminate your Account immediately without notice. You will continue to be charged for the Services during any suspension period in which you are in breach of these Terms. If we suspend your Account and you are not in breach of these Terms, we will apply a credit to your Account for the Fees you have paid for any unused portion of your Plan to which the period of suspension relates. If we terminate your Account and you are not in breach of these Terms, we will refund you the Fees you have paid for any unused portion of your Plan. If we terminate your Account and you are in breach of these Terms, no refunds will be given.
Your Plan will automatically renew at the end of the Plan period (and for the same Plan cycle) unless you terminate your Account in accordance with clause 12(a) prior to the end of your Plan period.
Subcontracting: We may engage subcontractors to perform the Services on our behalf.
Force Majeure: If a party (Affected Party) is unable to perform any of its obligations under these Terms due to an event or circumstance beyond its reasonable control (Force Majeure) and it gives the other party prompt written notice of such, the Affected Party’s obligations shall be suspended to the extent necessary. The Affected Party must use reasonable efforts to limit the impact of the event on its performance and must continue to perform its obligations in full as soon as the Force Majeure ceases.
Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
Relationship of parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
Entire agreement: These Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site and/or notifying you be email. Such variation will take effect 30 days after the updated Terms are published. By continuing to use the Services 30 days after the updated Terms are published, you agree to the updated Terms. If you do not agree to the updated Terms, you must terminate your Account and stop using the Services. We will provide you with a pro-rated refund of the Fee for the unused portion of your Plan if you terminate your Account as a result of the updated Terms.
Governing law: These Terms are governed by the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales, Australia and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Services may be accessed in Australia and overseas. We make no representation that the Services complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.
FOR ANY QUESTIONS, PLEASE CONTACT US AT:
ConstructionMaps (ABN 32 516 798 971)
Last updated: 10 May 2019