Online Product Agreement

This Buildsoft online product agreement (the “Agreement”) is between you and and Valsoft Ireland Limited trading as Buildsoft, address 10 Earlsfort Terrace, Dublin 2, D02 T380, Dublin 2, Ireland (“Buildsoft”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you agree you are binding your company to this Agreement. Throughout the site the terms “we”, “us” and “our” refer to Buildsoft. Buildsoft may modify this Agreement from time to time, subject to the terms in Section 23 (Changes to this Agreement) below.

By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by replying written confirmation of an acceptance of an order, or by using or accessing Buildsoft products, you indicate your assent to be bound by this Agreement.

1 Scope of the Agreement. 

This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes our Privacy Policy, our Acceptable Use Policy, our Terms of Service, any Orders, and any other referenced policies and attachments.

2 Types of Buildsoft Products. 

This Agreement governs (a) Buildsoft’s hosted or cloud-based solutions (currently designated as “Cloud” deployments) (“Hosted Services”), (b) Products available as part of section a. that Buildsoft provides commercially available downloadable software products for hosting external to Buildsoft (“Software”) and (c) any related support or maintenance services provided by Buildsoft.  Software and Hosted Services, together with related Documentation, are referred to as “Products”. The Products and their permitted use are further described in Buildsoft’s standard documentation (“Documentation”) unless otherwise specified, other provisions of this Agreement apply to all Products. This agreement does not govern any of Buildsoft’s commercially available downloadable software products not specifically included above and specifically excludes “Cubit Estimating”, “Global Estimating Software”, “Offsider Estimating Software” and all of their related offline modules which are governed by their own licence agreements.

3 Account Registration. 

You may need to register for a Buildsoft account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.

4 Orders.

4.1 Directly with Buildsoft. Buildsoft’s Product ordering documentation or purchase flow (“Order”) will specify your authorised scope of use for the Products, which may include: (a) number and type of Authorised Users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Software Assurance renewal, or purchases you make to increase or upgrade your Scope of Use.

4.2 Reseller Orders. This Agreement applies whether you purchase our Products directly from Buildsoft or through authorised resellers (“Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by the Reseller for you, and the Reseller is responsible for the accuracy of any such Order. Resellers are not authorised to make any promises or commitments on Buildsoft’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.

5 Authorised Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorised Users”) may access and use the Products. Some Products may allow you to designate different types of Authorised Users, in which case pricing and functionality may vary according to the type of Authorised User. Authorised Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may increase the number of Authorised Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Authorised Users. You are responsible for compliance with this Agreement by all Authorised Users. All use of Products by you and your Authorised Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party; where “control” means the power to direct the management or affairs of an entity; and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.

6 Software Terms.

6.1 Your License Rights. Subject to the terms and conditions of this Agreement, Buildsoft grants you a non-exclusive, non-sublicensable and non-transferable license to use the Software during the applicable License Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The term of each Software license (“License Term”) will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order.

6.2 Number of Instances. Unless otherwise specified in your Order, regardless of how many Software licenses that you purchase, you may access one production instance of the Software on systems owned or operated by Buildsoft. If specified on an order you may be able to get access to one production instance to install on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement).

6.3 Your Modifications. Subject to the terms and conditions of this Agreement you may also modify the Documentation. Any modified reports or Documentation of products constitutes “Your Modifications” regardless of if Buildsoft has carried out such customisation on your behalf. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Buildsoft has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable lawyers fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 6.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Buildsoft at your expense.

7 Hosted Services Terms.

7.1 Access to Hosted Services. Subject to the terms and conditions of this Agreement, Buildsoft grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If Buildsoft offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are online, subscription-based products and that we may make changes to the Hosted Services from time to time.

7.2 Subscription Terms and Renewals. Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription in writing at least one business day before the end of your current term. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

7.3 Credentials. You must ensure that all Authorised Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorised person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Buildsoft of any unauthorised use of which you become aware.

7.4 Your Data. “Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Buildsoft. Subject to the terms of this Agreement, you hereby grant to Buildsoft a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorised Users) direct or enable through the Hosted Service. Buildsoft may also access your account or instance in order to respond to your support requests. You grant us the perpetual right to use your data in an anonymised format as Buildsoft sees fit.

7.5 Security. Buildsoft implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services 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 Your Data 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 shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable lawyers fees and costs) arising out of or in connection with any claim relating to a breach of security.

7.6 Storage Limits. There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. Buildsoft reserves the right to charge for additional storage or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.

7.7 Responsibility for Your Data.

7.7.1 General. You must ensure that your use of Hosted Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Buildsoft and to grant the rights granted to Buildsoft in this Agreement and (ii) Your Data and its transfer to and use by Buildsoft as authorised by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5 (Security), Buildsoft assumes no responsibility or liability for Your Data or any breach of security of Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

7.7.2 Sensitive Data. You will not submit to the Hosted Services (or use the Hosted Services to collect): (i) any personally identifiable information, except as necessary for the establishment of your Buildsoft account; (ii) any patient, medical or other protected health information regulated by federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws ((i) through (iii), collectively, “Sensitive Data”). Notwithstanding any other provision to the contrary, Buildsoft has no liability under this Agreement for Sensitive Data.

7.7.3 Indemnity for Your Data. You will defend, indemnify and hold harmless Buildsoft from and against any loss, cost, liability or damage, including legal fees, for which Buildsoft becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.

7.8 Removals and Suspension. Buildsoft has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.

7.9 Deletion at End of Subscription Term. We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.

8 Support and Maintenance. 

Buildsoft will provide the support and maintenance services for the Products described in the Buildsoft Software Assurance Agreement (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Buildsoft Software Assurance Agreement and will be provided at the support level and during the support term specified in your Order.

9 Returns and Financial Terms.

9.1 Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in Australian dollars at the time you place your Order. Other than as expressly set forth in Section 9.1 (Return Policy) all amounts are non-refundable, non-cancellable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Authorised Users during your License Term or Subscription Term, we will charge you for the increased number of Authorised Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller. You further acknowledge that if payment is not made by the due date of an invoice access to the product, at Buildsoft’s sole discretion, may be restricted or removed, in no way does this absolve you from the requirement to complete payment in full. Additionally should Buildsoft not receive payment in full, at Buildsoft’s sole discretion, you are liable for any fees incurred by Buildsoft in recovery of owed monies including but not limited to legal and cost collection agency fees as well as late penalties.

9.2 Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Buildsoft, you must pay to Buildsoft the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Buildsoft any such exemption information, and Buildsoft will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

9.3 Return Policy. Outside of legal obligations in certain jurisdictions we are unable to accept returns or refund whatsoever with regards to the Software or any related services. In the context of Software, where applicable a return means that we will disable the license key that allowed the Software to operate. In the context of Hosted Services, a return means that we will disable access to the Hosted Service. You understand that Buildsoft may change this practice in the future in accordance with Section 23 (Changes to this Agreement).

9.4 Delivery. We will deliver login instructions (in the case of Hosted Services) to the email addresses specified in your Order when we have received confirmation of an order or payment of the applicable fees. At Buildsoft’s sole discretion we may deliver once we deem the order to be accepted and before payment. All deliveries under this Agreement will be electronic. Delivery is deemed complete once Buildsoft has login instructions to one nominated account regardless of when or whether that email is read.

10 No-Charge Products. 

We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 10 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Buildsoft’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.

11 Restrictions. 

Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.

12 License Certifications and Audits. 

At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorised agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Buildsoft at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.

13 Ownership and Feedback. 

Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Buildsoft and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Buildsoft, including without limitation as they may incorporate Feedback. From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Buildsoft, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). Buildsoft may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Buildsoft’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

14 Confidentiality. 

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure. Any Buildsoft Technology and any performance information relating to the Products shall be deemed Confidential Information of Buildsoft without any marking or further designation. Except as expressly authorised herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.

15 Term and Termination. 

This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Buildsoft, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorised Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Buildsoft Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 7.7.3 (Indemnity for Your Data), 9.3 (Payment), 9.4 (Taxes), 10 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12 (License Certifications and Audits), 13 (Ownership and Feedback), 14 (Confidentiality), 15 (Term and Termination), 16.2 (Warranty Disclaimer), 17 (Limitation of Liability), 18 (Third Party Vendor Products), 21 (Dispute Resolution), 22 (Export Restrictions), and 24 (General Provisions).

16 Warranty and Disclaimer.

16.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

16.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND BUILDSOFT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. BUILDSOFT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BUILDSOFT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BUILDSOFT NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

17 Limitation of Liability. 

NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE AUD$20. THIS SECTION 17 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. TO THE EXTENT WHICH IT IS PERMISSIBLE BY LAW THE MAXIMUM AMOUNT THAT BUILDSOFT IS LIABLE TO THE CUSTOMER UNDER ANY CIRCUMSTANCES IS EQUAL TO THE AMOUNT PAYABLE FOR SERVICE DURING A TERM OR THE EQUIVALENT OF A 12 MONTH PERIOD WHICHEVER IS LESSER.  The parties agree that the limitations specified in this Section 17 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

18 Third Party Vendor Products. 

Buildsoft or third parties may from time to time make available to you third-party products or services, including but not limited to add-ons as well as implementation, customisation, training, estimating and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Buildsoft does not warrant or support non-Buildsoft products or services, whether or not they are designated by Buildsoft as “verified” or otherwise, and disclaims all liability for such products or services.

19 Publicity Rights. 

We may identify you as a Buildsoft customer in our promotional materials. You may request that we stop doing so by submitting an email to sales@buildsoft.com.au at any time. Please note that it may take us up to 30 days to process your request.

20 Improving Our Products. 

We are always striving to improve our Products. In order to do so, we need to measure, analyze, and aggregate how users interact with our Products, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our Products as described in our Privacy Policy.

21 Dispute Resolution

21.1 Disputes.  A party must not commence court proceedings or arbitration relating to any dispute arising from this Agreement without first complying with clause 21, except (a) where a party seeks urgent interlocutory relief; or (b) where the dispute relates to compliance with this clause.  If a party commences proceedings relating to the dispute other than for urgent interlocutory relief, that party must consent to orders that the proceedings relating to the dispute be referred to mediation by a mediator.

21.2 Notice of dispute. (a) A party claiming that a dispute has arisen under this Agreement must give written notice of the details of the dispute to the other party or parties in dispute. (b) Each party that has given or received notice of the dispute under this clause must promptly: (i) designate as its representative in negotiations relating to the dispute a person with authority to settle the dispute; and (ii) use its best endeavours to resolve the dispute.

21.3 Resolution. If within 60 days of receipt of notice the parties to the dispute do not resolve the dispute, the parties must mediate the dispute in accordance with the mediation rules of the Law Society of Ireland and the parties must request the President of the Law Society of Ireland or the President’s nominee to select the mediator and determine the mediator’s remuneration.  The parties must mediate the dispute with the appointed mediator with a genuine commitment to participate. If a party refuses to comply with this clause, that party is not entitled to recover its costs in any court proceedings or arbitration relating to the dispute, even if that party is successful.

21.4 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the Republic of Ireland, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Sections 21.1 to 21.3 (Disputes; Notice of dispute; Resolution) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the Republic of Ireland, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Dublin, Ireland, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Buildsoft may bring a claim for equitable relief in any court with proper jurisdiction.

21.5 Injunctive Relief; Enforcement. Notwithstanding the provisions of Sections 21.1 to 21.3 (Disputes; Notice of dispute; Resolution), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

22 Changes to this Agreement. 

We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Buildsoft account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

23 General Provisions. 

Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Buildsoft, 101/4 Hyde Parade, Campbelltown NSW 2560, Attn: Managing Director or via email accounts@buildsoft.com.au. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and Buildsoft relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.