Terms and Conditions
Webuild Construction Software Pty Ltd (ACN 629 590 763) of 271 Alfred Street N, North Sydney, NSW, Australia, (Webuild) offers an online construction management software that allows its users to manage construction projects and related activities (the Services). The Services can be accessed, without limitation, via the website www.webuildcs.com (and any other related Uniform Resource Locators (URLs) and other channels which Webuild may use from time to time) (collectively the Site), and Webuild’s or other third party’s applications (collectively the App).
(a) These Terms and Conditions form a binding legal agreement (Agreement) between Webuild, including its directors, officers, employees, subsidiaries, contractors, agents, successors and assignees (collectively referred to as Webuild), and each person, organisation or entity using the Site, the App or the Services (User). By using the Site, the App or the Services, each User accepts and agrees to comply with and be legally bound by this Agreement. Please read this Agreement carefully. If there are any questions, the User is encouraged to contact Webuild using the contact details at the end of this Agreement.
(b) The User’s use of the Site, the App or the Services indicates that:
1. the User has had sufficient opportunity to access this Agreement;
2. the User has read, accepted and agreed to comply with this Agreement;
3. the User has legal capacity to enter into this agreement; and
4. if a natural person, the User is 21 years or older.
(c) If this is not correct, or if the User does not accept and agree to comply with this Agreement, the User is not permitted to use the Site, the App or the Services.
(d) The User must monitor the observance of this Agreement by its directors, officers, employees and agents. A breach of this Agreement by the User’s directors, officers, employees or agents will be considered a breach by the User.
(e) Webuild may amend this Agreement at any time at its sole discretion and will post a notice of any such amendment on the Site. Users are responsible to keep themselves updated with the most current terms of the Agreement before continuing to use the Site, the App or the Services. Using the Site, the App or the Services following any such amendments will be deemed to be a confirmation that the User accepts those amendments.
(f) This Agreement supplements and incorporates:
2. Any supplementary agreement entered into between Webuild and the User for the use of the Site, the App or the Services.
2. The Services
(a) The Site and the App provide Users with access to an online construction management software that allows Users to manage construction projects, including but not limited to:
1. managing the tendering/bidding process;
2. managing project documentation and plans;
3. managing daily construction tasks and activities;
4. collaborating with other project stakeholders;
5. storing project files;
6. manage construction contacts; and
7. other related activities.
(b) Webuild may develop additional functions and services from time to time in addition to those described in the definition of Services (Additional Services). These Additional Services may be implemented by Webuild in its own discretion. Not all Users may be provided with access and the right to use any of the Additional Services.
(c) Webuild may provide the Site, the App or the Services using contractors and third parties.
(d) Each User understands and agrees that the Site and the App provide Users with access to the Services only and that Webuild’s responsibilities are limited to facilitating the availability of the Site, the App and the Services.
(e) Webuild is not a party to any agreement entered into between Users. Webuild is not a referrer or booking agent, and provides no such related services. Webuild has no control over the conduct of Users of the Site, the App or the Services. Webuild disclaims all liability in this regard, as set out in this Agreement.
(f) Any arrangement between Users are solely between the Users themselves. It is strictly and expressly not part of the User’s agreement with Webuild.
(a) In order to use the Services, a User must have accounts with Webuild for use by the User’s directors, officers, employees or agents (Individual Users).
(b) There are three types of accounts for use by Individual Users. These different accounts are primary accounts (Primary Account), additional accounts (Additional Account) and collaboration accounts (Collaboration Account). All the above three account types are collectively referred to as Account.
(c) A User must register its business with Webuild in order to create a Primary Account for an Individual User who is a director, officer, employee or agent of the User.
(d) The Primary Account holder may create Additional Accounts for use by other Individual Users who are directors, officers, employees or agents of the User. The Primary Account holder has control of access rights to each Additional Account and may vary the levels of authority and access to the Services under each Additional Account.
(e) Primary Account holders or Additional Account holders may invite a third party (Collaboration User) to open a Collaboration Account in order to access the User’s project files and to collaborate with the User on the User’s projects. For the avoidance of doubt, Collaboration Users will be governed by this Agreement.
(f) Users may be required to provide personal and confidential information when creating an Account. User information required may include but is not limited to personal information (including tax file number, gender, date of birth, biometric information), credit card or payment details, information about the User’s business, structure, products and services, marketing and technical information, and any other information whether or not such information is reduced to a tangible form or marked in writing as “confidential” (User Confidential Details).
(g) Users will take reasonable care to prevent the creation of duplicate Primary Accounts and Additional Accounts, company profiles and company branches for the same User or entity.
(h) The creation of Accounts requires the selection of a username and password.
(i) Each User agrees to provide accurate, current and complete information and to update such information to keep it accurate, current and complete. Webuild reserves the right to suspend or terminate any Account and any User’s use of the Services if any information provided to Webuild proves to be inaccurate, not current or incomplete.
(j) The use of each Account is limited to one Individual User and must not be shared with another Individual User. Only the Individual User associated with an Account may use that Account. A breach of this clause 3.(j) by any of the User’s directors, officers, employees or agents will be considered a breach by the User.
(k) Webuild may allow Users to login to their Account via a third-party website such as Facebook or LinkedIn or use biometric information such as fingerprints.
(m) It is the User’s responsibility to keep its Accounts details, usernames and passwords confidential. The User agrees that it will ensure that each Individual User holding an Account shall not disclose his or her password to another Individual User or to any third party.
(n) The User is liable for all activities on its Primary Accounts and Additional Accounts, including any and all communications, and accuracy and completeness of any information on projects and tenders, made using its Accounts.
(o) The User agrees that that it will take sole responsibility for all activities or actions under its Primary Accounts and any Additional Accounts, whether or not it has authorised such activities or actions.
(p) The User agrees to immediately notify Webuild of any unauthorised use of its Accounts.
(q) The User’s obligations under this clause 3 will survive the termination of this Agreement.
4. User Information and Content
(a) Subject to this Agreement, Users are permitted to post, upload, publish, submit or transmit relevant information and content (User Information and Content). By making available any User Information and Content or any Intellectual Property on or through the Site, the App or the Services, the User grants to Webuild a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Information and Content or any Intellectual Property, with the right to use, view, copy, distribute, publicly display, transmit, stream, broadcast, access, or otherwise use such User Information and Content, or any Intellectual Property on, through or by means of the Site, the App or the Services. For the avoidance of doubt, despite the above, ownership to the User Information and Content on the Site or App, is not transferred to Webuild by reason of this Agreement. Webuild’s use of any User Information and Content is limited to the provision of the Services in accordance with this Agreement. Webuild acknowledges that any User Information and Content may constitute valuable trade secrets and Webuild’s use of any such User Information and Content will be in accordance with this Agreement.
(b) The User agrees that it is responsible for all User Information and Content and Intellectual Property that it makes available through the Site, the App or the Services. The User represents and warrants to WeBuild, with the knowledge that the WeBuild is expressly relying upon such representations and warranties in entering into this Agreement, that:
1. it is either the sole and exclusive owner of all User Information and Content and Intellectual Property that it makes available through the Site, the App or the Services, or that it has all rights, licences, consents and releases that are necessary to grant to Webuild the rights in such User Information and Content or Intellectual Property, as contemplated under this Agreement;
2. neither the User Information and Content nor the posting, uploading, publication, submission or transmittal of the User Information and Content or Webuild’s use of the User Information and Content (or any portion thereof) on, through or by means of the Site, the App or the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation;
3. other Users and third parties may access and use the User Information and Content on the Site and the App;
4. the User will not disclose User Information and Content of another User that is of a personal or commercially sensitive nature without the consent of that other User; and
5. when using other User Information and Content of another User that it will obtain that other User’s consent, disclose that it is the User and not Webuild and provide that other User with information on what the User Information and Content is being used for.
(c) The obligations stated in clause 4.(b) above do not apply to any User Information and Content that:
1. is authorised to be disclosed;
2. is in the public domain and/or is no longer confidential, except as a result of breach of this Agreement;
3. is received from a third party, except where there has been a breach of confidence; or
4. must be disclosed by law or by a regulatory authority including under subpoena.
(d) The User agrees that Webuild may amend, delete or otherwise remove any User Information and Content that it reasonably believes may breach this Agreement. Users may report any breaches of these provisions to Webuild via email at email@example.com.
(e) The User agrees that Webuild may make and indefinitely retain archival and back-up copies of any User Information and Content. This includes any User Information and Content in draft format.
(f) The User agrees that Webuild has no responsibility or liability for the deletion of, or failure to store or transmit User Information and Content.
5. User Interaction
(a) If a User enters an agreement or transact business with another User, any agreement entered into or business transacted is between the Users themselves. Webuild is not a party to such agreements or business transactions.
(b) Each User acknowledges and agrees that any communications entered into with another User is at his or her own risk. Webuild does not guarantee that other Users have genuine intentions.
(c) Users agree to promptly attend to any request, correspondence, query, notice, comment, message, quote, bid, tender and warning by Webuild or any other User. Users are responsible for the efficiency, effectiveness, completeness, timeliness, usefulness and delivery of such communication.
(d) Each User should report to Webuild any activities or requests of Users which are, or which the User reasonably believes to be:
4. in breach of this Agreement; or
5. likely to have a negative effect on the reputation of Webuild, the Site, the App, Services and/or a User.
(e) Each User represents and warrants to WeBuild, with the knowledge that the WeBuild is expressly relying upon such representations and warranties in entering into this Agreement, that any information it provides:
1. will not breach any agreements it has entered into with any third parties;
2. will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any User in its local area and country; and
3. will not conflict with the rights of third parties.
(f) Any information provided by one User to another User must comply with this Agreement including where such information is provided via a third party site such as Facebook or LinkedIn.
(g) Each User is solely responsible for any information it provides and for any reliance another User may place on such information.
(h) For the avoidance of doubt, Webuild assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations.
(i) Webuild reserves the right, at any time and without prior notice, to remove or disable access to any Account for any reason, including any projects and tenders that Webuild, at its sole discretion, considers to be inactive, completed or abandoned by the User, objectionable for any reason, in violation of this Agreement or otherwise harmful to the Site, the App or Services.
(j) This clause 5 will survive the termination of this Agreement.
6. Prohibited Conduct
(a) In connection with the User’s use of the Site, the App or the Services, the User may not and agrees that it will not post, upload, publish, submit or transmit any content that:
1. infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
2. is fraudulent, false, misleading or deceptive;
3. denigrates Webuild, the Site, the App, the Services, or another User;
4. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
5. is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, religious ranting, harassment or harm against any individual or group;
6. is violent or threatening or promotes violence or actions that are threatening to any individual or group; or
7. promotes illegal or harmful activities or substances.
(b) In connection with the User’s use of the Site, the App or the Services, the User may not and agrees that it will not:
1. use the Site, the App or the Services for any other purposes that are not expressly permitted by this Agreement;
2. access the Site or the App or use the Services to complete, or assist another individual to complete, a project, tender or any other transaction independent of the Services in order to circumvent the obligation to pay any Fees related to Webuild’s provision of the Services;
3. submit any false or misleading information;
4. submit any tenders or make a tender or otherwise seek to provide or receive any services that it does not intend to honour or cannot provide;
5. violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
6. copy, store or otherwise access any information contained on the Site, the App and the Services or content for purposes not expressly permitted by this Agreement;
7. infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
8. access the Site or the App or use the Services to transmit, distribute, post or submit any information concerning any other person or entity without their permission, including without limitation, photographs of others, personal contact information or credit, debit, calling card or account numbers;
9. access the Site or the App or use the Services in connection with the distribution of unsolicited commercial emails such as spam or advertisements;
10. access the Site or the App or the Services to collect User Information and Content via automated means (such as harvesting bots, robots, spiders or scrapers etc.);
11. use User Information and Content for any purpose other than the Services or as set out in this Agreement;
12. do anything that could damage, disable, overburden or impair the proper working of the Site, the App or the Services, such as a denial of service attack or attempt to breach or circumvent security or in any way interfere with any other party’s use and enjoyment of the Site, the App or the Services;
13. upload viruses or other malicious code to the Site, the App, or the Services;
14. stalk, bully or harass any other User or collect or store any personally identifiable information about any other User other than for purposes of transacting as a User on the Site or App;
15. access the Site or the App or use the Services for any unlawful, misleading, deceptive, malicious or discriminatory purpose;
16. allow, encourage or otherwise facilitate a breach of this Agreement; or
17. republish, display, mirror or frame any individual element within the Site, the App or the Services, including but not limited to Webuild’s name, any Webuild trademark, logo or other Intellectual Property, information, or the layout and design of any page or form contained on a page within the Site, the App, or the Services, without Webuild’s express written consent.
(c) The User may not and agrees that it will not advocate, encourage or assist any third party in doing any of the foregoing prohibited conduct stated in clause 6.(a) and clause 6.(b)
7. User Licence
(a) Subject to this Agreement, Webuild grants to the User a personal, non-exclusive, non- transferable, limited and revocable licence to use the Site, the App and the Services for its own use on a computer or mobile device controlled by the User as permitted in accordance with this Agreement (User Licence), and not to use the Site, the App and the Services in any other way or for any other purpose. All other uses are prohibited without Webuild’s prior written consent.
(b) The right to use the Site, the App and the Services is licensed to the User and not being sold to the User. A User has no rights in the Site, the App and the Services other than to use it in accordance with this Agreement.
(c) Webuild provides a wide range of Services and Users may be required to review and accept supplementary terms for particular Services.
(d) This Agreement govern any updates to, supplements or replacements of the Site, the App or the Services. Where separate terms accompany any such updates, supplements or replacements, the separate terms will also apply.
(e) To the extent that any supplemental terms conflict with this Agreement, the supplemental terms will apply.
(a) In order to create a Primary Account or Additional Account, Users are required to pay the fees as set out on the Site or the App, or as otherwise agreed with Webuild (Fees). Time will be of the essence with respect to any Fees payable under this Agreement.
(b) No fees are payable for creating a Collaboration Account.
(c) Fees may be payable to use some Services.
(d) Fees may differ between Users.
(e) Whilst some Users do not need to pay Fees for some or all of the Services, they acknowledge that the use of the Services may result in charges to them for the products or services they receive from other Users.
(f) Each User agrees to pay the relevant Fees, in the currency specified on the Site and the App or as otherwise agreed with Webuild, at the time that it becomes payable or in accordance with any agreement that the User may enter into with Webuild.
(g) Webuild has the right to charge the User for all governmental taxes or charges of any kind that may be applicable, including without limitation excise, sales, use, property, license, value-added taxes, goods and services tax, business tax, franchise, income, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties.
(h) Transaction fees arise from the payment of Fees or payment of government taxes or charges are the responsibility of the User. Transaction fees include but are not limited to credit card fees, bank charges and charges imposed by payment gateways such as eWay, Stripe and PayPal. Webuild has the right to charge the User for any transaction fees.
(i) All amounts are quoted and to be paid in Australian dollars unless otherwise specified or as otherwise agreed by Webuild.
(j) The User may pay for the Services as directed by Webuild. The User must not pay, or attempt to pay, for the Services through any fraudulent or unlawful means. If a User’s payment is not able to be successfully processed, then the Account will be terminated.
(k) In the absence of fraud or mistake, all payments made are final and the User shall not have the right to cancel its purchase for any reason without Webuild’s consent.
(l) If the User makes a payment, the User warrants that the payment information provided to Webuild is true, accurate and complete, that the User is authorised to use the payment medium (such as debit or credit card) to make the payment, that the payment will be honoured by the payment medium, and that the User will maintain sufficient funds in the related account to cover the Fees. Any overdraft fees or other fees that are charged as result of insufficient funds are the responsibility of the User.
(m) The User agrees to indemnify Webuild for all reversals, charge-backs, claims, fees, fines, penalties and other liability that may be incurred by Webuild (including costs and related expenses) that are caused by or arising out of payments authorised or accepted by the User.
(n) If a User believes that an unauthorised transaction has been processed to its account, the User shall notify Webuild immediately so that Webuild may take action to prevent financial loss.
(o) Nothing prevents Webuild from taking any action necessary to recover any unpaid fees. If the User fails to pay, the User’s information will be passed on for collection and or legal action. The User acknowledges and agrees that it is liable for and will pay all costs including debt collection, commission, solicitor’s fees and out of pocket expense incurred by WeBuild in the course of collecting unpaid Fees. If the User at any time exceeds Webuild’s payment terms and as a result are passed on for collection and or legal action, Webuild may place a default against the User with a credit reporting agency.
(p) Webuild’s pricing structure or payment methods may be amended from time to time at its sole discretion.
(q) Webuild may make inquiries, either directly or through third parties, concerning User identity and creditworthiness.
9. Offers, Promotions and Advertising
(a) Webuild may, from time to time, make offers or promotions which may be applicable to the Services.
(b) The conditions of such offers or promotions will be specified on the Site or the App.
(c) The User acknowledges and agrees that Webuild may, at its sole discretion, remove or extend any offers or promotions, and Webuild will not be responsible or liable for any potential loss or damage which the User incurs as a result of the removal or extension of any offers or promotions.
(d) Webuild may allow Users to advertise on the Site or the App on terms as agreed in writing with Webuild.
10. Confidential Information
(a) The User agrees:
1. not to disclose to any third party confidential information belonging to WeBuild or to an owner of a Third-Party IP as defined herein (Confidential Information). For the purpose of this Agreement, the term Confidential Information includes but is not limited to information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing information, technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, technology, and any other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”;
2. to use all reasonable endeavours to protect the Confidential Information from any unauthorised disclosure; and
3. only to use the Confidential Information for the purpose for which it was disclosed, and not for any other purpose.
(c) The obligations stated in clause 10.(a) and clause 10.(b) above do not apply to Confidential Information that:
1. is authorised to be disclosed;
2. is in the public domain and/or is no longer confidential, except as a result of breach of this Agreement;
3. is received from a third party, except where there has been a breach of confidence; or
4. must be disclosed by law or by a regulatory authority including under subpoena.
(d) This clause 10 will survive the termination of this Agreement.
11. Intellectual Property
(a) All logos, slogans, content, designs, diagrams, drawings, graphics, images, layouts, appearance, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, rights in circuit layouts (or similar rights), registered or unregistered trademarks, trade names, patent, know-how, trade secrets and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively referred to as Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed on the Site, the App and the Services, the layout, appearance and look of the Site, the App, and the Services together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of this Agreement and whether or not used or contained in the Site, the App and the Services are owned, controlled or licensed to Webuild (or its affiliates and/or third party licensors as applicable).
(b) The User agrees that, as between the User and Webuild, Webuild exclusively owns or holds the relevant licence to all Intellectual Property rights in the Site, the App and the Services, and that nothing in this Agreement constitutes a transfer of any Intellectual Property. The Intellectual Property, the Site, the App and the Services are protected by copyright, trademarks, patent, trade secret, international treaties, laws and other proprietary or industrial rights whether such rights are capable of being registered or not, and also may have security components that protect digital information as authorised by Webuild or the owner of the content.
(c) The User agrees that it will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, the App, the Services, WeBuild’s Intellectual Property or Third-Party IP as defined herein.
(d) Some Intellectual Property used in connection with the Site, the App or the Services is owned by a third party (collectively referred to as Third-Party IP).
(e) Unless authorised in writing by Webuild or the applicable Third-Party IP owner, the User agree that the User will not undertake, cause, permit or authorise any of the following:
1. use the Third-Party IP except as an integral component of the Site, the App and the Services;
2. use Webuild’s Intellectual Property or the Third-Party IP for development, compilation, debugging and similar design-time purposes;
3. reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithms of Webuild’s Intellectual Property or Third-Party IP or attempt to do any of the foregoing in relation to the Object Code. “Object Code” means computer programming code assembled or compiled in magnetic or electronic binary form, which is readable and usable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering; and
4. copy, imitate, modify, adapt, translate, frame or create any derivative works of Webuild’s Intellectual Property or Third-Party IP or merge Webuild’s Intellectual Property or Third-Party IP into any other software.
(f) Subject to a written permission being obtained from Webuild, Users may republish, copy, distribute, transmit, or publicly display (in hard copy, soft copy or online) material on the Site on the following conditions:
1. Users must make no alterations to the Site or the App including by creating a frame or border around the material;
2. Users must attribute the material to Webuild, including linking back the Site where possible. Users must not attribute materials, whether expressively or implicitly, to themselves;
3. Users must not remove or alter any of the material including Webuild’s Intellectual Property and User Content;
4. Users must not imply that Webuild endorses any of the User’s products or services;
5. Users must not misrepresent their relationship with Webuild;
6. Users must not use the material for commercial gain; and
7. Users must not do so in a way that could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy, or that would bring Webuild, the Site, the App or the Services, into disrepute.
(g) Users of the Site, the App or the Services do not obtain any interest or licence in the WeBuild’s Intellectual Property or Third-Party IP without the prior written permission of Webuild or the applicable Third-Party IP owner. Users may not do anything which interferes with or breaches WeBuild’s Intellectual Property rights or the rights of any Third-Party IP owner.
(h) The User gives Webuild permission to reproduce the User’s brand name and logo, to display the User’s brand name and logo on the Site and the App, and to disclose publicly that the User is a user of the Site, the App and the Services.
(i) If a User breaches any part of this clause 11, Webuild shall have the right to terminate the Account and stop the User’s access to all or part of the Site and App immediately and without prior notice.
(j) This clause 11 will survive the termination of this Agreement.
12. Limitation of Liability
(a) Webuild’s maximum aggregate liability arising out of or in connection with the Site, the App or the Services, however arising, including but not limited to under contract, tort, negligence, in equity, under statute or otherwise, will not exceed the total Fees paid by the User to Webuild in the twelve (12) month period prior to the event giving rise to the liability, or one hundred Australian dollars (A$100) if no such Fees have been paid, as applicable.
(b) The limitations of damages set forth above are fundamental elements of the basis of the bargain between Webuild and each User. Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation may not apply to the User.
(c) This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. The limitations of liability provided in this Agreement inure to the benefit of Webuild.
(a) Each User agrees to defend, indemnify and hold harmless Webuild and, where applicable, any Third-Party IP owner (and their parents, related bodies corporate, directors, officers, employees, subsidiaries, contractors, agents, successors and assignees) from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the User’s use of or access to the Site, the App or the Services; any breach by the User of this Agreement; any wilful, unlawful or negligent act or omission by the User; and any violation by the User of any applicable laws or the rights of any third party.
(b) Webuild reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
(c) This defence and indemnification obligation will survive this Agreement and the User’s use of the Site, the App or the Services. This Agreement, and any rights and licences granted may not be transferred or assigned by a User, but may be assigned by Webuild without restriction.
(d) If a User breaches the letter or the spirit of any of this Agreement, the User will indemnify Webuild against any loss of income or potential income caused by the User’s breach.
(e) This clause 13 will survive the termination of this Agreement.
(a) Webuild provides no warranty as to the accuracy or reliability of any advice or information contained in the Site, the App and the Services and no responsibility is accepted by Webuild or its directors, officers, employees or agents for any loss or damage by a User whatsoever arising out of any representation, act, error or omission, whether express or implied (including responsibility to any person by reason of negligence).
(b) The Site and the App are intended to provide the Services only. Webuild disclaims all responsibility and all liability (including responsibility to any person by reason of negligence) for all expenses, losses, damages and costs any User might incur as a result of information on the Site or the App or any linked website being inaccurate or incomplete or otherwise unreliable.
(c) Webuild makes no warranties that any part of the Site, the App and the Services including User Information and Content, projects, tenders and listings are free of infection by viruses or other contamination. Users are responsible for scanning any communication or downloads from the Site, the App and the Services.
(d) Webuild will not be liable for any loss or damage of whatsoever nature arising out of or in any way connected with a User, its directors, officers, employees or agents acting outside of his or her authority, including but not limited to the establishment of an Account on the Site or the App and or the use of the Services.
(e) Webuild is not responsible for the actions of Users or of third parties and the User agrees to release Webuild, its directors, officers, employees and agents from any known or unknown liability, claim or damage arising out of or in any way connected with any claim that the User may have against another User or third party.
(f) Webuild makes no express or implied warranties or representations of any kind with regard to any of the products and services made available through the Site, the App or the Services.
(g) Webuild is not liable to any User for any loss of profits or other consequential, special, indirect or incidental loss or damage arising out of or in any way connected with this Agreement, access of the Site or the App or use of the Services even if Webuild has been advised of the possibility of such loss or damage.
(h) Whilst all care is taken to ensure accuracy of any information contained in communications sent or forwarded by Webuild, no warranty is given by Webuild and the recipients of Webuild’s communications and Users must rely on their own enquiries.
(i) The Information contained in communication by emails or otherwise from Webuild or other Users and third parties and any attached files are strictly private and confidential and should be read by the intended addressee only. Users must advise the sender of any communication where the User is not the intended addressee immediately and promptly delete the communication and any attachments permanently. Users should scan any communications to detect any viruses, worms, Trojan horses and/or malicious codes. By reading any such communication and opening any attachments, Users accept full responsibility for taking all necessary protective and remedial action about viruses and other defects. Webuild accept no liability whatsoever for any loss or damage (whether caused by negligence or otherwise) arising in any way from such communication or its attachments.
(k) By accessing the Site or the App or using the Services, the User agrees that any legal remedy or liability that it seeks to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the other User or other third party who caused it harm. Webuild encourages the User to communicate directly with the relevant User on the Site, the App or the Services regarding any communications or arrangements made between them and to resolve any dispute between them.
(l) To the fullest extent allowable under applicable law, Webuild disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Site, the App or the Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors.
(m) For the avoidance of doubt, the User is solely responsible for compliance with any and all laws, rules and regulations, including but not limited to tax obligations that may apply to its use of the Site, App and Services. Webuild is not responsible for any duties, fees, taxation, visa or immigration matters associated under this Agreement. Webuild advises that all Users using the Site, App and Services should seek advice in relation to these matters.
(n) Users who access the Site or the App or use the Services do so at their own risk.
(o) Webuild excludes all express and implied conditions and warranties, except for the User’s rights expressed in this Agreement, to the fullest extent permitted by law, including but not limited to:
1. Webuild expressly disclaims any implied or express guarantees, warranties, representations or conditions of any kind, which are not stated specifically in this Agreement;
2. Webuild does not warrant that the Site, the App, the Services or their content (including pictures, videos, sound clips, links etc.), or the User’s access to the Site, the App or use of the Services will be error free, that any defects will be corrected or that the Site, the App or the Services or the servers which stores and transmits material to the User is free of viruses or any other harmful components;
3. Webuild takes no responsibility for, and will not be liable for, the Site, the App, the Services or any User’s projects or tenders failing to meet a particular standard of workmanship, failing to meet a description, failing to meet a User’s needs, or being of less than merchantable quality; and
4. Webuild will not be liable for any losses, damages, costs or expenses whether direct, indirect, incidental, special, exemplary or consequential, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages or loss of personal property, bodily injury, death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on the User’s information systems or costs of replacement products or services, or otherwise, suffered by the User or claims made against the User, arising out of or in connection with the Site, the App, Services, content on the Site, the App or the Services, inability to access or use the Site, the App, the Services, any project or tender, even if Webuild was expressly advised of the likelihood of such loss or damage.
(p) The User undertakes, with the knowledge that WeBuild is expressly relying upon such undertaking in entering into this Agreement, that the User will not attempt to impose any liability on, or seek any legal remedy from Webuild with respect to such actions or omissions stated in this Clause 14.
(q) Any costs and expenses associated with accessing the Site, App and Services such as internet access charges and mobile broadband data charges are the User’s responsibility.
(a) Termination for Cause: Notwithstanding any supplementary agreement between Webuild and the User, either party may terminate this Agreement:
1. immediately by notice in writing if the other party commits a material breach of this Agreement and such breach is not rectified within thirty (30) days after the party in breach has been given notice in writing to rectify the breach, or
2. the other party becomes, threatens or resolves to become insolvent or subject to an order, proceedings or resolution for liquidation or dissolution (unless for the purposes of amalgamation or reconstruction whilst solvent) or entering into a compromise or arrangement with, or assignment for the benefit of any of its members or creditors, or if an administrator is appointed for its business, or a resolution that an administrator be appointed is passed or proposed, or if the party is wound up or liquidated, voluntarily or otherwise (unless for the purpose of amalgamation or reconstruction whilst solvent) or any event occurs having a substantially similar effect to any of the preceding events, or
3. the other party, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving.
If the User terminates this Agreement for Cause under this clause 15.(a), WeBuild will promptly refund any prepaid but unused Fees covering use of the Services after termination. If WeBuild terminates this Agreement for Cause under this clause 15.(a), the User will promptly pay all unpaid Fees due through the end of the Term.
(b) Webuild may terminate a User’s Account (including a Primary Account and Additional Accounts) immediately by notice in writing if the User does not pay any associated Fees as and when they become due.
(c) Unless Webuild and the User have agreed that this Agreement should continue for a specified duration, either party may terminate this Agreement by giving the other party a thirty (30) days’ notice in writing. On expiry of the notice period the User’s Primary Account and Additional Accounts will be terminated. No refunds will be given by WeBuild on termination by the User under this clause 15.(c).
(d) On termination of a User’s Account:
1. All active projects, tenders and User Information and Content on the Site, the App and the Services, created by the Primary Account and its related Additional Accounts will be archived immediately and will no longer be accessible.
2. Webuild may without notice to the User deactivate, disable or change the passwords of the User Account.
3. The User will not be able to access the Site, the App, the Services, its Account or its User Information and Content.
4. The User may request, within sixty days of the termination date, an archive copy of the User’s Information and Content stored by the User on Webuild’s storage facilities at the time the Account was terminated. Webuild is not obligated to retain an archive copy of the User’s Information and Content after sixty days of the termination date.
5. The User must promptly return (where possible), delete and destroy (where not possible to return), Webuild’s Intellectual Property and confidential information, and/or documents containing or relating to Webuild’s Intellectual Property and confidential information.
6. Webuild may retain copies of the User’s Information and Content and the User’s Confidential Information as required by law or regulatory requirements. The User’s acceptance of this Agreement constitutes the User’s authority for Webuild to retain or destroy documents in accordance with the statutory periods.
(e) The rights and obligations of Webuild and the User are not affected by the termination of this agreement.
16. Dispute Resolution
(a) By accessing the Site, the App or using the Services, each User agrees that any legal remedy or liability that one User may seek to obtain for actions or omissions of another User or third party will be limited to a claim against the other User or third party who caused the harm. Webuild encourages Users to communicate directly with the relevant User or third party to resolve any disputes.
(b) Webuild welcomes feedback from Users regarding the use of the Site, the App or the Services in order to resolve any concern or complaint quickly and effectively. If a User has any concern or complaint, the User is encouraged to contact Webuild.
(c) If a party to this Agreement has any complaint, the parties agree to the following dispute resolution procedure:
1. The complainant must advise the other party in writing of the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The parties agree to communicate with each other in good faith and endeavour to resolve the dispute by agreement between them.
2. If a resolution cannot be agreed through negotiation, before resorting to arbitration, litigation, or some other dispute resolution procedure, the parties agree to 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, Australia, to appoint a mediator. The mediator will decide the time and place for mediation. Each party to the dispute must attend the mediation in good faith and seek to resolve the dispute. The parties may attend the mediation by way of video conferencing.
(d) All attempts made by a party to resolve a dispute pursuant to this clause 16 are without prejudice to other rights or entitlements of either party under this Agreement, by law or in equity.
(a) Construction: In this Agreement, except as otherwise expressly provided or as the context otherwise requires:
1. the words “include” or “including” when following any general term or statement are not to be interpreted as limiting the general term or statement to the specific items or matters set forth or to similar terms or matters but rather as permitting it to refer to all other items or matters that could reasonably fall within its broadest possible scope;
2. the words “herein”, “hereof”, “hereby” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection, Paragraph, Subparagraph or other subdivision or Schedule;
3. a capitalized cognate of a defined term has a meaning corresponding to that of the defined term;
4. the conjunction “or” shall be understood in its inclusive sense (and/or);
5. a reference to a person includes a body corporate or partnership and includes that person’s successors, administrators, executors, assigns and representative;
6. a reference to a law includes any amendment to it or replacement of it;
7. words importing the singular include the plural and vice versa and words importing gender include the masculine, feminine and neuter genders;
8. any reference to a “party” herein is a reference to a party hereto; and
9. The headings to, and the division of this Agreement into sections, clauses and paragraphs are for ease of reference only and will not in any way affect or be used in interpreting any of the provisions of this Agreement.
(b) Accuracy: While Webuild will endeavour to keep the information contained on the Site, the App and the Services up to date and correct, Webuild makes no representations, warranties or guarantees, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site, the App and the Services for any particular purpose. The User hereby acknowledges that such information and materials may contain mistakes, inaccuracies or errors and Webuild expressly excludes any liability for such to the fullest extent permissible by law.
(d) Fraudulent Activities: Each User acknowledges and agrees that, in the event Webuild reasonably suspects that there are fraudulent activities occurring within the Site, the App or the Services, Webuild reserves the right to immediately terminate any Account involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
(e) Force Majeure: Webuild will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to any circumstance beyond its reasonable control, including any forces of nature, disruptions to the internet infrastructure, public bandwidth shortages, industrial action, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemics, lock-outs, strikes and action or inaction by a government agency (including any quasi-government agency).
(f) Third Parties: Webuild may provide information on the Site, the App or via the services or products of third party specialists whose services or products may be of interest to Users (Specialists). Webuild’s provision of such information is not a recommendation by Webuild to Users to use any information, advice, services or products provided by the Specialists. Webuild make no representations or warranties about any information, advice, services or products provided to a User by Specialists. Webuild disclaims and will not be responsible or liable for any information, advice, services or products provided to a User by Specialists, or for the failure of Specialists to advise a User or provide services or products to a User. Users should make their own enquiries and obtain appropriate professional advice before relying on or using any information, advice, services or products provided by Specialists.
(g) Notice: Any notice in connection with this Agreement will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
(h) Waiver: Failure or delay of or by either party to exercise any right or remedy under this Agreement or to require strict performance by the other party of any provision of this Agreement shall not be construed to be a waiver of any such right or remedy or any other right or remedy hereunder. All of the rights of each party under this Agreement shall be cumulative and may be exercised separately or concurrently.
(i) Assignment: A User shall not assign or transfer this Agreement nor any of its rights and duties under this Agreement, in whole or in part, whether by merger, operation of law or otherwise without the prior written consent of WeBuild. Any change of control of a User will be deemed to constitute an assignment for the purposes of this clause. WeBuild may assign this Agreement, in whole or in part, to any third party provided that any such third party agrees in writing to perform all of the obligations of WeBuild hereunder.
(j) Severability: If any term, condition or provision of this Agreement is determined by a competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision is hereby waived and severed to the extent necessary for this Agreement to be otherwise enforceable to the fullest extent permitted by law. However, if in WeBuild’s opinion, deletion of any term, condition or provision hereof by operation of this clause 17.(j) unreasonably compromises the rights or increases the liabilities of WeBuild, WeBuild reserves the right, despite any other provision hereof, to terminate this Agreement and refund any unused portion of the Fees paid by the User as at the effective date of such termination.
(k) Jurisdiction and Applicable Law: This Agreement, access of the Site, the App, the Services and any dispute arising out of any User’s access of the Site, the App or use of the Services is subject to the laws of the State of New South Wales, Australia, and the parties agree to submit to the exclusive jurisdiction of the courts of the of the State of New South Wales, Australia and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
The Site, the App and the Services may be accessed throughout Australia and in other countries. Webuild makes no representation that the content of the Site, the App and the Services comply with the laws (including intellectual property laws) of any country outside Australia. If a User accesses the Site, the App or uses the Services outside Australia, it does so at its own risk and is responsible for complying with the laws of the place where he/she accesses the Site, the App or uses the Services.
(l) Exclusion of Convention: The parties hereto agree that the application of the United Nations Convention on Contracts for the International Sale of Goods will not apply to any part of any transaction which may result from any negotiations, discussions or agreements, including this Agreement, between the parties and the same is hereby strictly excluded.
(m) Reciprocal Representation: Each party represents to the other party that this Agreement constitutes a legal, valid and binding obligation of said party, enforceable against it in accordance with its terms. Each individual accepting this Agreement on behalf of a party represents that they have been duly authorized and empowered to do so and to bind the party on whose behalf they are acting.
(n) Entire Agreement: With the exception of and to the extent only that clauses 1.(f), 7.(c), 7.(d) and 7.(e) apply, this Agreement and any document expressly referred herein constitute the entire agreement between Webuild and each User with respect to the subject matter hereof, and supersede and replace all prior or contemporaneous representations, statements, understandings or agreements, written or oral, regarding such subject matter. Each User represents and warrants that it has not relied on any representations, statements or understandings which has not been stated expressly herein or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Webuild.
To the extent that the terms of any supplementary agreement entered into between Webuild and the User for the use of the Site, the App or the Services conflict with this Agreement, the terms of the supplementary agreement will apply.
Last updated: 11 January, 2021
For questions and notices, please contact Webuild.
Level 57 MLC Centre,
19-29 Martin Place,
Sydney NSW 2000, Australia
Telephone: 1300 72 40 45