1.1 These Terms and Conditions govern your access to the Website and your licence to use the concept designs on the Website (“Designs”).
1.2 By agreeing to these Terms and Conditions, by accessing the Website or accessing, using or downloading any Designs you enter into a binding legal agreement with us.
1.3 You agree to only access the Website and download, access and use the Designs on the Website in accordance with these Terms and Conditions.
2 ACCOUNT AND LICENSE TO USE DESIGNS
2.1 Upon payment of the Subscription Fees under these Terms and Conditions you will be provided with an account on the Website (“Account”) which you may only use in accordance with these Terms and Conditions.
2.2 The Account provides access to the Website for a period of 12 months from the date on which we accept your registration for the Account (“Term”) and notify you in writing. Each Term may be extended for a 12 month period with the payment of further Subscriptions Fees (as updated from time to time).
2.3 During the Term and only so long as you fully comply with these Terms and Conditions we grant you a non-exclusive, non-transferable, revokable, licence to use the Website, Account and Designs but only for the following purposes (“Purpose”):
(a) to market and promote the Designs in constructions proposals made to your customers and potential customers; and
(b) to commission us to prepare detailed drawings based on the Designs; or to prepare detailed drawings based on the Designs using your own draughtsperson.
3 YOUR OBLIGATIONS
3.1 The licence granted to you under these Terms and Conditions is personal. Your Account may only be used by you personally and it cannot be transferred, sold, lent or otherwise provided to any other person at any time except as expressly permitted by these Terms and Conditions.
3.2 You may not use the Designs for the purpose of redistribution or resale to third parties.
3.3 You warrant to us that you will:
(a) provide us with all necessary co-operation and will comply with all of our reasonable directions in relation to these Terms and Conditions;
(b) fully comply with these Terms and Conditions;
(c) obtain and maintain all necessary licences, consents, and permissions necessary for you to use the Website and access the Designs and perform your obligations under these Terms and Conditions;
(d) only use the Website and Designs in accordance with applicable laws and government regulations and in accordance with these Terms and Conditions;
(e) comply with our reasonable directions in respect of the Website, Account and Designs; and
(f) notify us immediately on becoming aware of any unauthorised use, theft, breach, loss or copying of the whole or any part of the Website or Designs or your Account.
3.4 You must not:
(a) make the Website, your Account or Designs available to any person except as expressly permitted by these Terms and Conditions;
(b) interfere with or disrupt the integrity or performance of the Website or the system or network from which the Website is provided;
(c) gain or attempt to gain unauthorised access to the Website, Account or Designs;
(d) use the Website, Account or Designs for any purpose except the Purpose;
(e) use the Website, Account or Designs in any way that could damage our reputation or goodwill, or the goodwill or other rights associated with the Website or Designs;
(f) modify, remove or circumvent any markings, copyright or proprietary notices on, or security measures protecting, the Website or Designs or permit any third party to do so; or
(g) use the Website or Designs in any way that could otherwise be regarded by us, on reasonable grounds, to be unacceptable.
3.5 The Designs are intended to be conceptual drawings only. You acknowledge that further detailed drawings will be necessary for the purposes of actual construction. Where you engage your own draughtsperson to create such drawings based on the Designs, you agree that you are solely responsible for those further detailed drawings and any consequential loss or damage that may arise.
3.6 Upon breach of these Terms and Conditions by you, we may, without liability to you, immediately suspend access to all or any part of the Website and use of or access to the Designs.
4 OUR OBLIGATIONS
4.1 Subject to the terms of these Terms and Conditions, we will use commercially reasonable efforts to ensure the Website is functional and the Designs are available 24 hours a day, seven days a week, except for:
(a) scheduled downtime, or
(b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, Force Majeure events.
4.2 We are under no obligation to upgrade the Website or Designs. You acknowledge that we may update or vary the Website and Designs and you agree that, subject our obligations under these Terms and Conditions, we may make such changes in our discretion and without notice to you.
4.3 You acknowledge that:
(a) we may use an Internet Hosting Service Provider to host the Website or use an Internet Service Provider to provide access to the server hosting the Website; and
(b) hosting of or access to the Website and Designs may be subject to the service level agreement between us and the Internet Hosting Service Provider or the Internet Service Provider.
4.4 We will, at our sole discretion, from time to time, perform preventive or remedial maintenance on the Website, which may cause some or all of the Website to become unavailable or non-functional.
4.5 We will endeavour to give at least 24 hours notice of such maintenance and schedule such maintenance for the mutual convenience of the parties.
4.6 You acknowledge that we may, with no liability to you, have to perform urgent maintenance in business hours in cases where early symptoms or major faults are detected and urgent preventive maintenance action is required to limit the impact or occurrence of the fault. You acknowledge that while we will endeavour to inform you of any unscheduled maintenance we may not be able to provide notice where such urgent maintenance is required. We will use our best endeavours to resume the full functionality of the Website as soon as is practicable.
4.7 You acknowledge that we may access and monitor usage of the Website for the purposes of maintenance, review and analysis of the Website, including analysis of errors and installation of patches or upgrades and/or to verifying compliance with these Terms and Conditions.
4.8 You acknowledge that the offer of free concepts is at the discretion of the directors, we have no obligation to complete the free concept in any way shape or form, we maintain the right of refusal if the concept request does not meet our criteria.
You acknowledge that the offer of free concepts is only available if the newly designed concept is able to be published to all subscribers on the website.
4.9 Construction Drawings – You acknowledge that we are providing a maximum of 3 (three) hours of concept modifications as determined by us when requested to complete construction drawings as part of the fees quoted. You will be financially liable for any time beyond the allocated 3 (three) hours it takes us to complete the modifications. We are required to provide 0 (zero) preliminary plans for approval before issuing the construction drawings.
Upon request you are obligated to provide any relevant information required to complete the construction drawings to a quality as determined by us.
5 INTELLECTUAL PROPERTY
5.1 Nothing in these Terms and Conditions constitutes a transfer of any Intellectual Property Rights.
(a) acknowledge that we own or license all Intellectual Property Rights in the Website and Designs; and
(b) must not directly or indirectly do anything that would or might invalidate or put in dispute the title or rights in the Website or Designs.
5.3 You acknowledge that the intellectual property rights in any amendment, modification to or adaptation of a Design shall be exclusively owned by us regardless of whether such amendment, modification or adaptation was made by us.
5.4 You warrant that if you engage a third party to amend, modify or adapt the Designs you will procure assignment of any intellectual property rights in in any amendment, modification to or adaptation of the Design and you hereby irrevocably assign the same to us.
5.5 Except as expressly stated herein, these Terms and Conditions does not grant to you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Website and Designs.
6 INDEMNIFICATION, LIMITATION OF LIABILITY AND WARRANTY
6.1 You fully indemnify us, and keep us fully indemnified from and against any direct loss, cost or liability (including a claim made by a third party) that has been incurred by us to the extent to which this is directly caused by or contributed to by:
(a) a breach of these Terms and Conditions by you;
(b) misuse of the Website or Designs by you; and
(c) any wilful, unlawful or negligent act or omission of you.
6.2 To the extent permitted by law, we are not liable for circumstances for which we are not responsible, including, without limitation:
(a) Force Majeure events;
(b) non-compliance by you with the provisions of these Terms and Conditions;
(c) unauthorised modifications to or interference with the Website or Designs, by you or third parties;
(d) errors in the operation of the Website by you or third parties; or
(e) influences from systems or programs that have been provided by third parties;
(f) a modification of the Website or Designs by anyone other than us;
(g) any virus, malware or other material which may interfere with or disrupt the integrity or performance of the Website or the system or network from which the Website is provided; and
(h) your use of the Website or Designs in a manner contrary to the instructions given to you by us;
6.3 You agree that the rights granted under these Terms and Conditions are not ordinarily obtained for personal, domestic or household use. To the extent permitted by law, our total liability to you for all losses or damages arising directly or indirectly as a result of our performance or non performance of our obligations under these Terms and Conditions is limited, at our sole discretion, to one of the following:
(a) resupply of access to the Website and the Designs;
(b) repair of the Website or Designs; or
(c) termination of these Terms and Conditions and refund to you of the Subscription Fees for the current 12 month period.
6.4 Except as provided in these Terms and Conditions and to the extent permitted by law we will not be liable to you for any indirect, special or consequential loss or damage of any nature whatsoever, including without limitation, loss of profits or revenue, loss of business opportunity resulting from these Terms and Conditions or from a breach of any of the warranties, terms, conditions or any other provision of these Terms and Conditions or from negligence or breach of statutory duty or otherwise.
6.5 Except as provided under clause 6.3 above, you are not entitled to any refund (whether in whole or in part) of Subscription Fees.
6.6 To the extent permitted by law. We are not liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for the performance of any third party products or services.
6.7 Each party warrants to the other that it has the right and ability to enter into these Terms and Conditions and that these Terms and Conditions will be legally binding on it.
6.8 In the event that we incur additional expenditure as a result of your failure to comply fully with your obligations under these Terms and Conditions, we have the right to charge you for the costs that we incur for the analysis and rectification of the failure to comply according to the time and materials required and in accordance with the applicable rates charged by us at the time.
6.9 Except as expressly and specifically provided in these Terms and Conditions and to the extent permitted by law:
(a) you assume sole responsibility for results obtained from the use of the Website, Account and Designs;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms and Conditions; and
(c) the Website, Account and Designs are provided to you on an “as is” basis.
6.10 You warrant that you have not relied on any representation made by us which has not been stated expressly in these Terms and Conditions, or upon any descriptions, illustrations or specifications in any way relating to the Website or Designs. You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in these Terms and Conditions, you have been provided with an opportunity to independently verify the accuracy of that representation.
6.11 This clause survives termination of these Terms and Conditions by either party for any reason.
7 TERM AND TERMINATION
7.1 Without limiting the generality of any other clause in these Terms and Conditions, we may terminate these Terms and Conditions or suspend performance of our obligations under these Terms and Conditions (for such period as we specify) immediately by notice in writing if you are in breach of any term of these Terms and Conditions and:
(a) such breach is not remedied within seven (7) days of you being notified by us; or
(b) such breach is incapable of remedy.
7.2 We may terminate these Terms and Conditions immediately, if we no longer hold rights to licence the use of the Website, Account or Designs.
7.3 If you give us written notice of your intention to terminate these Terms and Conditions or fail to pay the Subscription Fees before the expiry of the Term, these Terms and Conditions will be deemed to expire at the end of the current 12 month term.
7.4 You agree that on expiry or termination of these Terms and Conditions for any reason or expiry of your Account access:
(a) all of your rights in respect of the Website, Account and Designs will immediately end;
(b) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced;
(c) your licence to use the Designs expires; and
(d) you must immediately cease all use of the Designs (and any adaptation, modification or derivative thereof).
8.1 We shall not be liable for any delay or failure to perform its obligations under these Terms and Conditions if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, our obligations will be suspended. If a delay or failure by us to perform its obligations due to Force Majeure exceeds sixty (60) days, we may immediately terminate these Terms and Conditions on providing notice in writing to you without any obligation on us to refund any moneys paid by you pursuant to these Terms and Conditions.
8.2 These Terms and Conditions constitutes the entire agreement, regarding the subject matter, between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
8.3 The benefit of these Terms and Conditions shall not be assigned by you without our written consent.
8.4 No right under these Terms and Conditions shall be deemed to be waived except by notice in writing signed by each party. A waiver by us will not prejudice its rights in respect of any subsequent breach of the Agreement by you. Any failure by us to enforce any clause of these Terms and Conditions, or any forbearance, delay or indulgence granted by us to you, will not be construed as a waiver of our rights under these Terms and Conditions.
8.5 The provisions of these Terms and Conditions will not be varied, except by agreement in writing signed by the parties.
8.6 If any provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.
8.7 These Terms and Conditions are governed by the law applicable in Queensland. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland.
9.1 In these Terms and Conditions, unless the contrary intention appears:
“Account” means an account name and password (which may be nominated by you at the time of registration) provided to you by us that allows you to access the Website and use the Designs in accordance with these Terms and Conditions;
“Agreement” means these Terms and Conditions;
“Designs” means any and all plans and drawings made available to you by us on the Website;
“Force Majeure” means a circumstance beyond our reasonable control which results in us being unable to observe or perform on time an obligation under these Terms and Conditions. Such circumstances shall include but shall not be limited it:
(a) any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities or the Internet Hosting Service Provider; and
(b) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes.
“Internet Hosting Service Provider” means the person engaged by us to host the Website;
“Internet Service Provider” means the person engaged by us to grant access to the server which hosts the Website;
“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how, instructions, procedures, and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;
“Subscription Fees” means the relevant annual subscription fees for your Account as disclosed by us through the Website at the time of your registration for the Account.
“Website” means the website provided by us to access the Designs.
10.1 In these Terms and Conditions, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
(b) a reference to a clause number is a reference to its subclause;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(f) a reference to a clause is a reference to a clause or subclause of these Terms and Conditions;
(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(i) the recitals to these Terms and Conditions do not form part of the Agreement;
(j) monetary references are references to Australian currency;
(k) a reference to “you” or “your” in these Terms and Conditions is a reference to:
(i) if you provided company details at the time of registration, that company; or
(ii) otherwise, you personally.
(l) A reference to “we”, “us” or “our” in these Terms and Conditions is a reference to BKD Constructions Pty Ltd.