Commnia Terms of Service Agreement
Commnia Pty Ltd (ABN 50 105 572 576) trading as Commnia (referred to as Commnia, we, our or us) owns the Platform which is accessible at https://login.buildtoolscloud.com
These Terms set out the terms and conditions upon which we agree to grant, sell, or allow the use of, the Services, by you, the person or entity seeking to use or purchase the Platform from us (you or your), as particularised in the Commercial Order.
In these Terms, capitalised terms have the meaning given to them in these Terms, and as follows:
Acceptable Usage Policy means the policy on the acceptable use of the Platform, as set out on our Website and as updated from time to time.
Activity means the number of transactions recorded on the Platform.
Actual Project Turnover means the actual Project Value for all Projects during the Subscription Period. Additional Fees means the additional fees charged where the Actual Project Turnover exceeds the Estimate Project Turnover, or in the event the End Date is exceeded as set out in the Commercial Order.
Additional Services means any services not included in a Subscription Type which we agree to provide to you, as set out in the Commercial Order or as otherwise agreed between the Parties.
Authorised Users means the users that have been authorised to have full access rights to the Platform, as nominated by you, the number of which are set out in the Commercial Order.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Commercial Order means a Commnia approved order form with respect to the Services that is executed by Commnia and a Paying User.
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
Commnia Declaration of Actual Project Turnover means the Statutory Declaration for your state or territory, as set out on our Website.
Computing Environment means your computing environment, including all systems, information technology and telecommunications services.
CO No. means the Commercial Order number, as set out in the relevant Commercial Order.
Construction Duration is the duration of the construction project, which is usually the period between Site Establishment and Project Completion.
Corporate Licence Subscription provides multi-party access to the Commnia Platform for use across multiple projects located in Australia from pre-construction stages though to project completion. It is based on Estimate Project Turnover in a subscription period as set out in a Commercial Order.
Data means any information that is created when you or a Non-Paying User use the Services, such as log in details, project information, User Information and page information.
Data Hosting Services means the data hosting services where we host your Data on our servers or third party servers, if applicable and as set out in the Commercial Order.
Defects and Liability Service provides limited functionality, activity and user access to the Platform for the purpose of managing Defects and during the Defects Liability Period, and subject to a current Subscription and a mandatory hosting service in place.
Defects Liability End Date means 12 months from the Defects Liability Start Date (or the relevant defects liability period for your particular Project, as notified to Commnia).
Defects Liability Period means the period starting on the Defects Liability Start Date and ending on the Defects Liability End Date.
Defects Liability Start Date means the date of Project Completion. .
Device includes a computer, mobile phone, tablet, console or other electronic device.
Early Termination Fee means the fee payable by you to us for early termination in accordance with these Terms and unless specified in the Commercial Order is equal the Minimum Subscription FeeEnd of Date means the date the used to in the Commercial Order to calculate the end of a Subscription Period unless extended in accordance with this Agreement.
Estimate Project Turnover means a genuine pre-estimate of Project Value for all Projects during the Subscription Period.
Fee Schedule means the fee schedule in the Commercial Order, which sets out the Fees.
Force Majeure has the meaning given in clause 29.
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
Invoice means the tax invoice we provide to you.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Licence Type means the type of access and functionality to the platform granted during a current Subscription and referred to as the Subscription Type in the Commercial Order. Subscription Licence Types include User Licences, Project Licences and Corporate Licences. Minimum Subscription Fee means, unless otherwise set out in a Commercial Order, the total Subscription Fee payable by you for the duration of the Subscription Period.
Non-Paying User means a user of the Services but not a Paying User.
Party means a party to these Terms and Parties means all of them.
Paying User means an entity or organisation paying for the Services.
Platform means the cloud-based software, owned or licensed by Commnia and made available by Commnia, including all instructions in hard copy and electronic form and any update, modification or release of any part of that software.
Project means the projects that have been authorised for the Platform as set out in the Commercial Order, subject to the scope and/or any other limitations specified in such Commercial Order.
Project Completion means the date of practical completion for a contract in connection with the construction of a Project. For the avoidance of doubt, Project Completion occurs before the Defect and Liability period begins, and/or when the project is fit for its intended use, or occupancy.
Project Details are mandatory details regarding Projects to be hosted on the Platform and include but not limited to Project address; Project description; Start Date; End Date; Defects Liability Start Date; Defects Liability End Date; Estimate Project Turnover and Project Duration.
Project Duration means the Construction Duration for a Project.
Project Licence Subscription provides multi party access to the Commnia Platform for use on a nominated Project and is based on the Estimate Project Turnover and Project Duration as defined in a Commercial Order.
Project Rate means the percentage of your Estimate Project Turnover, which is used to calculate your Subscription Fee, as set out in the Fee Schedule.
Project Value means the aggregate sum of all costs allocated toward the complete construction of a Project, including the executed contract value and all associated costs.
Purchase Order means an order form you send to us setting out the Services requested by you from us.
Services means the Platform and any other associated services as set out in the Commercial Order, including Data Hosting Services, Additional Services and the Defects and Liability Service (if applicable).
Start Date means the date on which your Subscription Period starts, as set out in the Commercial Order, or if not set out in the Commercial Order, the date on which we begin providing the Services to you.
Subscription Fee means the subscription fee payable by you for your relevant Subscription Type, as set out in the Commercial Order, and as updated in accordance with these Terms.
Subscription Period means the subscription period that applies to your relevant Subscription Type, as set out in the Commercial Order, and as may be renewed in accordance with these Terms.
Subscription Type means the type of subscription relevant to the type of Licence Type as set out in the Commercial order and include:
- a “User Licence Subscription”;
- a “Project Licence Subscription”; and
- a “Corporate Licence Subscription”
Term means the period beginning on the date you accept these Terms and ending on termination or expiry of the Subscription Period, in accordance with these Terms.
Third Party Inputs means any third party products, facilities or services.
Training Manual means the document entitled ‘Training Manual’ provided with the Platform (whether in hard copy or electronic format) and which contains instructions and technical information relating to the Platform and Platform including any help documentation and a user guide.
Unavailability means where any part of the Services are unavailable, and you are unable to use the Services, as a result of a default of these Terms by Commnia.
User Information means personal information, commercial information and other electronic information uploaded to or transmitted through the Platform, or otherwise collected by Commnia.
User Licence Subscription means a licence granted to an individual to use the Platform within a Subscription Period as set out in a Commercial Order and registered to an individual’s email address. Group, common or shared email addresses are not permitted under our fair use policy.
- If you are a Paying User, your Services will be set out in the Commercial Order. These Terms are binding on or you instruct us to provide the Services in the Commercial Order to you, until the termination of these Terms, in accordance with these Terms.
- These Terms form a binding legal agreement between you and Commnia, its directors, officers, employees, contractors, successors and assignees.
- By accepting these Terms and/or accessing and/or using the Services, you:
- warrant to us that you have reviewed these Terms (and all documents referred to in, or attached to, these Terms);
- warrant to us that you have the legal capacity to enter into a legally binding agreement;
- 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 the entity for whom you use the Services;
- warrant to us that you have all capabilities (including hardware, software and services) which are necessary, or become necessary, to access and use the Services; and
- agree to use the Services in accordance with these Terms.
- We reserve the right to make changes to these Terms at any time. It is your obligation to ensure that you have read, understood and agree to the most recent Terms when they are posted on our Website.
- PRIORITY OF DOCUMENTS
In the event of an inconstancy, ambiguity or discrepancy in or between the:
- the Commnia Declaration of Actual Project Turnover;
- the Commercial Order;
- these terms and conditions; and
- the Acceptable Usage Policy;
the document listed higher in the list will apply to the extent of such inconsistency.
- AUTHORISED USERS
- The Platform shall only be used by the number of Authorised Users listed on the relevant Commercial Order. Each Authorised User must be either:
- a subsidiary controlled by the Paying User (whether wholly or in part);
- an employee of the Paying User; or
- an authorised agent or contractor (including consultant) acting in the ordinary course of business and directly working on Projects initiated, directed or managed by the Paying User,
or as otherwise agreed by Commnia in writing.
- Paying Users must ensure that each Authorised User, uses or accesses the Services in accordance with these Terms.
- Non-Paying Users have restricted access rights.
- COLLECTION NOTICE
- We may disclose that information to third party service providers who help us deliver the 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 and you hereby consent to such disclosure.
- 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 anonymised 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.
- PLATFORM LICENCE
- Purchasing, using or subscribing to the Platform will grant you a revocable, non-exclusive, non-transferable and non-sublicensable licence to access and use the Platform for the Subscription Period (unless earlier terminated in accordance with these Terms) (each a Platform Licence) corresponding with the number of permitted Authorised Users, as updated from time to time in accordance with clause 11.
- Your Platform Licence permits you to use and to make the Platform available to Authorised Users in accordance with your Subscription Type (defined below).
- Your Platform Licence also provides you with access to a Training Manual in electronic format and training videos viewable online on the Website.
- Commnia may, upon request by a Paying User, customise modify and/or enhance the Platform to meet the Paying User’s particular needs. It is at our sole discretion whether or not we customise the Platform for you. If we agree to customise the Platform for you, a separate written agreement will be entered into between Commnia and you, outlining any costs associated and the terms and conditions for doing so. We will not be obliged to perform any customisation services until we have entered into a separate agreement with you, as contemplated by this clause 4.
- Each Authorised User may be required to provide User Information to access or use the Platform.
- YOUR RESPONSIBILITIES AND OBLIGATIONS
- You must, at your expense:
- provide us with all reasonable information, assistance and cooperation in order for us to supply the Services in an efficient and timely manner;
- provide us and our personnel with reasonable access to your Computing Environment , if reasonably necessary for us to supply the Services;
- ensure all information provided to us in accordance with these Terms is and remain current, complete and correct and the email address(es) you provide is/are 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 part of the Services;
- keep accurate and complete records of your Actual Project Turnover; and
- produce records and information sufficient to enable us to verify your Actual Project Turnover upon our request.
- This clause 7 survives the termination or expiry of these Terms.
- This clause 8 applies only to Paying Users.
- Unless otherwise agreed in a Commercial Order, we offer the following Subscription Types for Paying Users:
- a “User Licence Subscription”;
- a “Project Licence Subscription”; and
- a “Corporate Licence Subscription”,
and any other subscription options, as in the Commercial Order (each a Subscription).
- We reserve the right to update or amend our Subscriptions Types and Subscription Fees, or add or remove any Subscription Types, at our discretion.
- Your Commercial Order will set out your applicable:
- Subscription Type;
- Subscription Fee; and
- Subscription Period.
- Notwithstanding your Subscription Type, you will be required to pay the Minimum Subscription Fee.
- The method of calculating your Subscription Fee will be as set out in your Commercial Order.
- Where a Corporate Subscription Period is renewed, in accordance with clause
- Actual Project Turnover for the previous subscription; and
- an updated Estimate Project Turnover for each of your Projects in the renewed Subscription Period.
- FEE ADJUSTMENT
- You acknowledge and agree:
- at the expiry of a Project Licence Subscription, or anniversary of a Corporate Licence Subscription or User Licence Subscription, or during a Subscription Period; and/or
- if these Terms are terminated or expire, howsoever arising,
to provide to us, if requested:
- the Actual Project Turnover for all Projects for the relevant Subscription Period; and or
- a completed Commnia Declaration of Actual Project Turnover for your applicable state or territory, as available on our Website.
- You acknowledge and agree:
- in addition to the Subscription Fee, Additional Fees may apply as set out in the Commercial Order;
- to pay the Additional Fees in the manner, currency and time period as specified by us in the Invoice; and
- where the Actual Project Turnover is less than the Estimate Project Turnover, then, without limiting any of our rights or entitlements, you will not be entitled to any reduction of the Subscription Fee.
- You acknowledge and agree that we may engage an independent third party, procure an independent third party report, or use an independent third party service provider, to verify your assessment of the Actual Project Turnover for the relevant financial year. For the purposes of this clause 3, and to the maximum extent permitted by law, the determination of the Actual Project Turnover by an independent third party referred to in this clause will be final and binding.
- This clause 10 applies only to Paying Users.
- If you are a Paying User, you agree to pay us:
- the applicable Subscription Fee;
- the Minimum Subscription Fee;
- the Early Termination Fee, if applicable;
- the Additional Fee, if applicable;
- for any additional services that you have requested as set out in your Commercial Order, including Data Hosting Services or the Defects and Liability Services, if applicable; and
- the balance of any requested Services or expenses that may have been amortised into an annual Subscription,
and any other amounts due and payable under these Terms (collectively the Fees), in accordance with these Terms.
- In relation to the Data Hosting Services, any network or setup required to facilitate connection to the hosted servers will not be incorporated into the Fees for the Data Hosting Services.
- You agree to pay us the applicable portion of the Subscription Fee: (i) prior to the commencement of your Subscription Period and in accordance with the Payment Terms and Fee Schedule in the Commercial Order, (ii) in the manner set out in the Invoice; and (iii) within 30 calendar days from the date of receipt of the Invoice.
- You agree that we may issue Invoices to you, from time to time, for payment of the Fees and you agree to pay the amounts specified in any Invoice within 30 calendar days from the date of receipt of the Invoice.
- If any payment of the Fees is not made in accordance with these Terms, our Invoices and/or Commercial Order, we may (at our absolute discretion):
- immediately cease providing the Services and recover as a debt due and immediately payable from you our additional costs of doing so;
- charge an interest at a rate equal to the Commonwealth Bank of Australia commercial cash loan rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the due date of payment;
- engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts; and/or
- report you to independent credit data agencies.
- You acknowledge and agree that (as applicable and depending on the payment option in the relevant Commercial Order):
- to maintain your Subscription, you must pay us the Fees in accordance with the Payment Terms (Instalment Period), as set out in your Commercial Order and Invoice; and
- if a payment of a Fee is not able to be successfully processed or Commnia does not receive the relevant Fee on the day it is due for any reason then, as applicable, we may restrict your access to the Services without notice to you, in which case you will not be able to access or use the Services and any of the Data may not be accessible or recoverable.
- All amounts are stated in Australian dollars unless stated otherwise. All amounts are exclusive of GST. If you are located outside Australia you will not be charged 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.
- Without limiting clause
- Our pricing structure or payment methods may be amended from time to time in our sole discretion. Any amendments in accordance with this clause .
- If you wish to make changes to your applicable Subscription or the Services, including requesting any Additional Services, or to increase the Estimate Project Turnover cap, including for any increase in Authorised Users you must provide notice in writing to us, , with the details of the variation or change (Variation Request).
- We will not be obliged to comply with any Variation Request, unless we accept the Variation Request in writing (signed by a Commnia authorised representative), and provide an Invoice setting out the adjusted Fees due as a result of the change within the Instalment Period (Fee Variation). As applicable, any future Fees will also be adjusted by the Fee Variation. Any changes to your Platform Licence or Subscription will take effect immediately upon our receipt in full, of the adjusted Fees in the Invoice, from you.
- You grant us a perpetual, non-exclusive, irrevocable, sub-licensable and transferrable licence to copy, transmit, store and back-up or otherwise use or access the Data to supply the Services to you (including to enable you, your Authorised Users and your Personnel to benefit from the Services) and as reasonably contemplated by these Terms.
- 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 do 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.
- Each Paying User acknowledges that by transmitting and receiving Data to and from the Platform, the Paying User is making information available for the use of the Authorised Users that are participating in the Project (Project Participants) and the retraction of such information may negatively affect those Project Participants. Commnia may, as a condition to complying with any request to retract or delete Data by you, require the Paying User to comply with Commnia reasonable risk mitigation requirements including execution of a waiver by affected parties prior to any retraction of information.
- You acknowledge and agree that any Data conversion and analysis performed with the Platform is subject to the likelihood of human and machine errors, omissions, delays and losses, including but not limited to any loss of Data or damage to media that may give rise to loss or damage. Commnia is not liable for any such errors, omission, delays or losses. You acknowledge and agree you are responsible for adopting reasonable measures to limit the impact of such problems.
Data Hosting Services
- Where your Services include Data Hosting Services as per your Commercial Order, Data are stored in servers in Australia. We will take reasonable steps to ensure that any Data we collect is kept secure and confidential.
- Security: We implement security procedures to help protect your Data from security attacks. However, you understand that use of the Platform necessarily involves transmission of your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of the Data being lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third-party service providers.
- You acknowledge that installation and use of the Platform may involve the Platform extracting Data, User Information and/or other information from the operating system of your Device. You consent to us accessing and extracting such Data and/or related information for use as reasonably necessary for the Platform. Data will also be used to monitor and assess how many Authorised Users you permit to access the Platform.
- Removals: We have no obligation to monitor any content uploaded to the Platform. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Service. We have no Liability to you for removing your Data from the Service.
- Where we do not provide you with Data Hosting Services you acknowledge and agree:
- you are solely responsible for the hosting and security of the Data and User Information and that we have no Liability to you in this regard;
- you are responsible for implementing and maintaining the security systems as may be required to protect the transmission of User Information and Data;
- Commnia does not guarantee the security of these services and Commnia will not be responsible in the event of any infiltration of its security systems; and
- Commnia is not responsible for any other party’s servers.
- USER OBLIGATONS
- You warrant that all information provided to Commnia is and will remain true, accurate, current and complete.
- You acknowledge and agree that:
- you are responsible for complying with all laws and regulations regarding the use and disclosure of Data, including but not limited to all privacy laws and other requirements under applicable laws;
- you must, at all times, comply with our Acceptable Usage Policy when accessing or using the Services;
- you are authorised to use the Services and to access any information or Data you supply to the Platform or us, including any Data which has been inputted into the Platform by an Authorised User to any other person you have authorised to do so and Data which we host as part of our Data Hosting Services (if applicable);
- the Platform must only be used for your own lawful internal business purposes, in accordance with these Terms;
- all usernames and passwords required to access the Services are kept secure and confidential;
- if there is any unauthorised use of an Authorised User’s passwords or any other breach of security, you will immediately notify Commnia of such activity;
- the Platform operate within the Authorised User’s Device or other computer system (End User System) in accordance with the Training Manual;
- the reliability of the Platform is dependent upon the Authorised User’s configuration and implementation of the Platform; and
- it is the responsibility of the Authorised User to determine that the Platform meet the needs of the Authorised User and their business and is suitable for the purposes for which the Platform are used.
- You may use the Platform on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept these Terms which apply to you.
- Upon request you must, as soon as practicable, grant Commnia remote access to the End User System, Data, technology or other infrastructure used by the Authorised User to operate the Platform. Failure to do so may prevent Commnia from providing the support and maintenance for the Platform as required to ensure the Platform materially performs in accordance with the Training Manual.
- Each Authorised User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Platform and protecting the confidentiality of the Data with suitable management procedures, as they may see fit.
- PROHIBITED USE
- You acknowledge and agree that you will not:
- attempt to circumvent or disable the Platform or any technology features or measures in the Platform by any means or in any manner;
- attempt to modify, copy, adapt or reproduce the Platform except as necessary to use it for normal operation;
- attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Platform;
- distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Platform to any third party (except as permitted under these Terms);
- frame, “mirror” or service any of the Platform on any Device, web server or other computer server over the Internet or any other network;
- remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Platform or used in connection with the Platform;
- use the Platform in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
- take any action that interferes, in any manner, with Commnia’s rights with respect to the Platform;
- attempt to undermine the security or integrity of Commnia’s computing systems or where the Platform is hosted by a third party, that third party’s computing systems and networks;
- use, or misuse, the Platform in any way which may impair the functionality of the Platform, Platform and/or Website or other systems used to deliver the Platform or impair the ability of any other user to use the Platform, Platform or Website;
- attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Platform is executed; and
- transmit, or input into the Platform or Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
- You acknowledge that any breaches of this clause 14 may lead to termination of these Terms.
- CONFIDENTIAL INFORMATION
- Subject to sub-clause 2, you acknowledge and agree that you will:
- not disclose the Confidential Information to any third party at any time;
- use your best endeavours to protect the Confidential Information from any unauthorised disclosure;
- only use the Confidential Information for the purpose for which it was disclosed by Commnia and not for any other purpose;
- be responsible for and assume liability in relation to each of your employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out under these Terms; and
- not display, demonstrate, show or grant access to any aspect of the Services, software or literature to any of individual or entity that is, who you know to be, or who you ought reasonably know to be, a competitor of Commnia.
- The obligations set out in clause 1 (a) to (d) do not apply to Confidential Information:
- Subject to sub-clause 2, you acknowledge and agree that you will:
- that is already in the public domain, except as a result of the actions of the Authorised User in breach of these Terms;
- received from a third party, except where there has been a breach of confidence leading to its disclosure; and/or
- that must be disclosed by law, provided that the Authorised Users reveals only so much of the Confidential Information as the Authorised User is required by law to disclose and gives sufficient notice to Commnia in order to allow Commnia to object to, or otherwise prevent, the Confidential Information being disclosed.
- This clause 15 will survive termination of these Terms.
- INTELLECTUAL PROPERTY
- All Intellectual Property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Platform and the Services) will at all times vest, or remain vested, in us.
- 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 Website, the Platform or the Services, including (without limitation) altering or modifying any of our Intellectual Property; causing any of any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property.
- In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Website or in the Platform, or accessed through the Website or the Platform, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms give you no rights to such content.
- This clause 16 will survive termination of these Terms.
- UPDATES AND SUPPORT
- We may provide you with updates to the Platform, including any improvements to the Platform, that include but are not limited to bug fixes, addition of new features, new functionality, increased efficiency or other modifications (collectively referred to as Updates) for the duration of these Terms.
- An Update does not include other Services or other computer software applications (whether on desktop or on cloud) released by Commnia which may have features or functionality similar to the Platform, nor does it grant you an additional Platform Licence.
- You acknowledge that we have no obligation to provide you with any support for Updates to the Platform, as agreed in these Terms.
- We may, from time to time, issue updated versions of the Platform and the Platform may automatically connect to Commnia or third party servers via the Internet to check for available Updates to the Platform, and may either:
- automatically electronically update the version of the Platform that you are using on your computer; or
- give you the option of downloading it. By installing the Platform, you hereby agree to automatically request and receive Updates from Commnia or third party servers. You consent to such automatic upgrading and agree that these Terms will apply to all such Updates.
- The Platform may contain automatic communications features which relay certain non-personally identifiable information to Commnia in connection with the operation of the Platform. This information may include your Platform settings and what version of the Platform you are using. Commnia may use this information for research purposes including statistical analysis of aggregate customer behaviour.
- Commnia can provide support to the Authorised Users. If you require technical support, please contact us using the contact details at the end of these Terms. The support we provide to you is subject to you providing sufficient details about the issue and access (whether remotely or otherwise) to the Platform and Data on the End User System, technology or infrastructure.
- 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 use the Services and any associated programs and files at your own risk;
- 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 Platform where we provide you with Data Hosting 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, or be reliant or contingent on, the operation of Third Party Inputs. We do not make any warranty or representation, and to the maximum extent permitted by law, will have no Liability, in respect of any failure of the Services or breach of these Terms as a result of any Third Party Inputs;
- we do not guarantee that any file or program available for download and/or execution from or via the Platform is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
- from time to time, we may make certain services and/or features available to you for use which are still in their beta stage (Beta Services); Beta Services have not been fully tested and are provided on an ‘as is’ basis; and, to the maximum extent permitted by Law, we make no representations, warranties or guarantees in relation to such Beta Services; and
- we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
- Commnia has no Liability for use of the Platform in countries other than as specified on the Commercial Order.
- You acknowledge that we give no warranty or guarantees that:
- the Platform and Services will be fit or suitable for your particular requirements or purposes, unless expressly stipulated in these Terms;
- the Platform will be uninterrupted or error free;
- the Platform will work in each of your desired use case scenarios; and
- the Platform can be executed on every operating system, as it is impossible to test each variant.
- The operation of the Platform may be dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Platform. Commnia accept no responsibility or Liability arising from or in connecting with any such interference or prevention of your use of the Platform.
- The Platform is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Platform could lead to death, personal injury or severe physical or environmental damage.
- LIMITATION OF LIABILITY AND INDEMNITY
- Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by the law:
- we have no Liability to any Non-Paying User, and each Non-Paying User releases and discharges us from all Liability, arising from or in connection the Services and these Terms;
- 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 month in which the liability arose or $1 if no such Fees have been paid;
- a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its personnel), including a Party’s failure to take reasonable steps to mitigate that Liability; and
- we will not be liable to you for any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of 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.
- your, your personnel’s or your Authorised Users’ acts or omissions;
- any injury, damage or loss to any person or property;
- failure or delay in providing the Service, for any reason;
- failure, unavailability, outage or interruption to the Service or your Computing Environment or Data, for any reason;
- a fault, defect, error or omission in your Computing Environment or Data;
- any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
- any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
- any Third Party Inputs; or
- any event or circumstance beyond our reasonable control (including Force Majeure event).
- Indemnity: Despite anything to the contrary, to the maximum extent permitted by the 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 to the extent caused or contributed to by you, your Authorised Users or your personnel, including where relating to your Data, or any breach of these Terms by you.
- This clause 19 will survive expiry or termination of these Terms.
- Project Licence Subscriptions will commence on the Start Date and will expire at the End Date, unless terminated earlier in accordance with these Terms or extended by means of a variation in accordance with clause 11.
- User Licence Subscriptions and Corporate Licence Subscriptions commences on the Start Date and will automatically renew at the End Date of the then current Subscription for a further Subscription Period (the duration of which will be the shorter of the Subscription Period and one year), unless either Party provides the other Party with at least 90 days’ written notice of its intention to not renew the Terms prior to the expiry of the then current Subscription Period.
- You may only terminate these Terms by providing us with 90 days’ notice in writing, using the contact details at the end of these Terms, only if:
- subject to our rights under these Terms, we have materially breached these Terms by failing to provide the Services in accordance with these Terms, and we have failed to remedy such breach, within 90 days of being notified of the breach by you in writing; or
- you have paid all Fees due to us at the date of termination, and you provide notice within the first 90 days of the Start Date.
- You acknowledge and agree that if you wish to terminate your Subscription prior to the expiry of the Subscription Period, for whatever reason and irrespective of whether you have provided us with the notice required under clause
- the Subscription Fee payable by you up to the expiry of the notice period required under clause 3; and
- if the expiry of the notice period required under clause 3 falls within an Instalment Period, you will be required to pay the Subscription Fee applicable to that Instalment Period in full.
- We may terminate the Terms immediately, in our sole discretion, if:
- you breach any provision of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- you breach any provision of these Terms that is not able to be remedied;
- we reasonably suspect that you are attempting to reverse engineer the Platform that is provided to you;
- we consider that a request for a License is inappropriate, improper or unlawful;
- you fail to provide us with clear or timely instructions to enable us to provide you with a License;
- we consider that our working relationship has broken down including a loss of confidence and trust;
- where the Authorised User is an individual, an order for the appointment of a trustee in bankruptcy or analogous step is taken; or
- for any other reason outside our control which has the effect of compromising our ability to provide you with the required Platform or License within a required timeframe.
- On termination of these Terms, cancellation of your Subscription or completion of the Services, we may retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms, cancellation of your Subscription or completion of the Services.
- Without limiting our rights under these Terms, on termination of the Terms:
- you agree to confirm your Actual Project Turnover and supply to us a Commnia Declaration of Actual Project Turnover;
- you agree to immediately pay us all amounts due and payable to us by you under these Terms (including the Fees);
- (except where the termination is by you under clause 3(a), or where the date of termination is within the initial 90 days from the Start Date) you agree to pay us the Early Termination Fee, or where no Early Termination Fee is particularised in the Commercial Order, the balance of the Minimum Subscription Fee as at the date of termination of the Terms (and such amount will be deemed to be the “Early Termination Fee” for the purposes of these Terms);
- (except where the termination is by you under clause 3(a), you agree to pay us our additional costs and expenses arising from, or in connection with, such termination;
- except as set out in the Commercial Order, and to the maximum extent permitted by law, all Fees paid to us by you under these Terms are non-refundable; and
- FEEDBACK AND DISPUTE RESOLUTION
- Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact any member of our staff.
- If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
- the complainant must tell the respondent in writing within 14 days from the disputed event, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting); and
- if the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
- Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
You warrant that you have not relied upon any warranty, representation, statement, offer or other documentation made or provided by us or on behalf of us whether before or after the date you accepted these Terms.
Any notice required or permitted to be given to the Authorised User under these Terms will be addressed to the Authorised User at the email address provided by the Authorised User when requesting a License.
- RELATIONSHIP OF PARTIES
- Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
- The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
- RIGHTS OF THIRD PARTIES
Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
- You must not assign any rights and obligations under these Terms whether in whole or in part without Commnia’s prior written consent.
- Any purported dealing in breach of this clause 26 is of no effect.
- WAIVER OR VARIATION OF RIGHTS
- Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms do not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
- A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
- POWERS, RIGHTS AND REMEDIES
Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to these Terms or any other person.
- FORCE MAJEURE
If performance of these Terms or any obligation under these Terms (but excluding payment of the Fees) is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, (whether known or unknown at the time of entering into these Terms) acts of God, fire, explosion, epidemic, pandemic, COVID-19, any future variations of COVID-19vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
- CONSENTS AND APPROVALS
Where these Terms provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in these Terms, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
If any of the terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the maximum extent permitted by law.
- FURTHER ASSURANCE
Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to these Terms.
- GOVERNING LAW AND JURISDICTION
These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
- PURCHASE ORDERS
To the extent a Paying User does not enter into a Commercial Order, but instead, issues a Purchase Order, for the provision of the Services, then, to the extent we accept the Purchase Order by notice in writing, we agree to perform the Services to you in accordance with that Purchase Order, and each reference to “Commercial Order” in these Terms will be interpreted as a reference to “Purchase Order”, to the extent the context permits or requires.
- ENTIRE AGREEMENT
These Terms and any document expressly referred to in them represent the entire agreement between the Parties, and superseded any prior agreement, understanding or arrangement between the Parties whether oral or in writing.
Andrew, to confirm, you would like a right to make this request on expiry of a Project Licence, the anniversary of a Corporate Licence or User Licence and at any time during a Subscription Period?
For any questions or notices, please contact us at:
Commnia ABN 50 105 572 576
5.07/55 Miller Street, Pyrmont NSW 2009
Phone: (02) 9571 5540
Last update: May 2020