This Agreement is between Survival Tools Pty Ltd, a company registered in New South Wales (ACN 647 286 842), whose principal place of business is at 28 Tramway Road, NORTH AVOCA, NSW, 2260, AUSTRALIA (“Tools”) and You, the end user of the Tools App (the “End User”), (together, the “Parties” and each a “Party”).
This Agreement is a legally binding agreement between Parties and is effective from the Effective Date in accordance with the terms and conditions below.
1. DEFINITIONS
In this Agreement, the following words and phrases with their first letter(s) capitalized shall have the meaning ascribed to them as set out below:
“Agreement” means this agreement, known as the “Terms of Use for the Tools App”;
“Client Portal” means the “Client-only” area on the Website that is or may be available if the End User’s use of the Tools App is pursuant to an Enterprise Licence Agreement with the End User’s employer, contractor or if the End User has been invited as a guest to use the Tools App by an entity that has an Enterprise Licence Agreement with Tools;
“Documentation” means any documentation made available by Tools to the End User (whether directly or indirectly, on the Website or Client Portal), from time to time, including, but not limited to, documentation setting out a description of the Service, the functionality of the Tools App and instructions for use of the Service by the End User;
“Effective Date” means the date on which the End User agreed to enter into this Agreement by indicating its acceptance of the terms and conditions and by downloading the Tools App to the End User’s personal device;
“Licence Fee” means the fee paid by the End User to download and use the Tools App for the Term under the terms and conditions of this Agreement;
“Service” means the building code compliance resource delivered to the End User via the Internet and mobile telecommunications services using the Technology;
“Term” means 12 months from the date on which the Tools App was downloaded by the End User;
“Tools App” means the software application marketed under the trade mark “tools”, which can be downloaded on to a mobile telecommunications device;
“Technology” means Tools App, the Documentation, the Website and/or the Client Portal; and
“Website” means the website located at www.buildingtools.co or any other domain name/URL that Tools chooses to locate this website at, from time to time.
2. ACCESS
2.1 In consideration of the payment of the Licence Fee by the End User (or the entry into an Enterprise Licence Agreement by the End User’s employer, contractor or invitor), Tools hereby grants the End User the right to use the Technology being the right to:
2.1.1 to download the Tools App on to mobile device of the End User;
2.1.2 the right to use the Tools App; and
2.1.3 the right to access and use the Client Portal,
solely for the End User’s own personal and internal business purposes during the Term on the terms and conditions set out in this Agreement.
3. RESTRICTIVE COVENANTS
3.1 Except as expressly permitted under this Agreement, or by any applicable law which is, by law, incapable of exclusion from this Agreement, the End User shall not:
3.1.1 attempt to copy, modify, duplicate, create a derivative work from, republish or adapt all or any part of, the Technology;
3.1.2 reverse engineer, reverse compile or disassemble any or part of the Technology;
3.1.3 access all or part of the Technology, in any way in order to build a product or service which competes with the Service;
3.1.4 licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, use as a bureau service, as an outsourced service or otherwise make available to any third parties, the Technology and the Service; and/or
3.1.5 attempt to obtain, or assist a third party to obtain access to the Technology and the Service.
3.2 The End User shall use all reasonable efforts to prevent any unauthorised access to the Technology and shall keep confidential its user name and password used to access the Tools App (or the Client Portal, if applicable) and shall not divulge or permit others access to the Tools App App (or the Client Portal, if applicable) using the End User’s user name and password. In the event of any unauthorised access and use of the Tools App App (or the Client Portal, if applicable) on the End User’s device, the End User shall immediately notify Tools.
3.3 Except as expressly permitted under the Agreement, the access rights granted under clause 2 are granted to the End User for the End User’s personal and internal business purposes (and where applicable the internal business purposes of the End User’s employee, contractor or invitor) no other purposes. The End User shall not grant, or purport to grant, any rights granted by Tools to the End User in clause 2 to any third parties.
4. PROPRIETARY RIGHTS AND CONFIDENTIALITY
The End User acknowledges that Tools and its licensors are the owners of the intellectual property rights in the Technology, and that this Agreement grants no right, title or interest in any such Technology to the End User other than as expressly set out in this Agreement.
5. LIABILITY
5.1 To the full extent possible by law, and except where expressly indicated in this Agreement, Tools expressly and impliedly excludes any and all liability under this Agreement and makes no warranties, guarantees, representations or indemnities in relation to the Technology, the Service and its use by the End User.
5.2 Furthermore, Tools expressly and impliedly excludes any indirect loss; consequential loss; loss of goodwill; loss of opportunity; loss of business; or loss of profit, whether arising under this Agreement, or under contract or tort (including negligence, misrepresentation or breach of statutory duty).
5.3 For the avoidance of doubt, the End User acknowledges, agrees and understands that the Service includes features that assist the End User with the compliance and management of various governmental regulations relating to building code compliance. The End User acknowledges, agrees and understands that the use of the Service by the End User in no way guarantees compliance with any laws, regulations, industry standards, national or international standards or best-practice guidelines (“Laws”). As such, the End User agrees that, to the full extent permitted by law, that Tools shall have no liability under this Agreement to the End User, or to any third party, that suffers or incurs any damages, losses, injury, (to either property or person) or any costs and expenses (including legal costs and expenses) arising as a result of the End User’s failure to comply with any such Laws notwithstanding the End User’s correct or incorrect use of the Service or any outages of the Service.
5.4 Tools’s total aggregate liability to the End User shall not exceed the Licence Fee.
6. TERM AND TERMINATION
6.1 Unless terminated in accordance with this clause 6, this Agreement shall commence on the Effective Date and shall continue for the Term and unless terminated in accordance with clause 6.2 or 6.3.
6.2 Tools may terminate the Agreement:
6.2.1 upon a material breach by the End User of this Agreement, which if capable of cure is not cured within thirty (30) days after the date of receipt of written notice of the breach;
6.2.2 immediately, upon a material breach by the End User of this Agreement which is not capable of cure; or
6.2.3 immediately upon a breach of any of clause 3.
6.3 Upon termination of this Agreement, however so occurring:
6.3.1 the End User shall cease the use of the Technology and the Service;
6.3.2 Tools shall be entitled to deactivate the End User’s access to the Service and Client Portal (If applicable); and
6.3.3 at the request of Tools, return any and all Documentation of Tools, to Tools.
7. GOVERNING LAW
This Agreement shall be governed by and construed under the laws and regulations of New South Wales
8. MISCELLANEOUS
Assignment
8.1 The End User may not assign, transfer, pledge or otherwise encumber this Agreement and any such attempt by the End User to assign this Agreement shall be null and void and confer on the assignee no rights to use the Technology.
Entire Agreement
8.2 This Agreement represents the entire agreement between the Parties in relation to the subject matter of this Agreement, the Technology and the Service.
8.3 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
Severance
8.4 If any provision of this Agreement is found by a competent court, or competent administrative body, to be fully or partially invalid or unenforceable for any reason whatsoever, or found to violate any applicable law, such provisions shall be deemed to be deleted from this Agreement, and the remainder of this Agreement, to the extent permissible, shall be valid and binding as if such provisions were not previously included in this Agreement with whatever modifications necessary to give effect to the commercial intention of the Parties.
