Benchmark Estimating App End User Licence Agreement (EULA)

 

Revision: 13th June 2018

 

THIS END USER LICENCE AGREEMENT SETS OUT THE TERMS AND CONDITIONS UPON WHICH YOU MAY DOWNLOAD, INSTALL, ACCESS AND OPERATE THE “BENCHMARK ESTIMATING” SMARTPHONE APPLICATION. EACH TIME YOU USE THE “BENCHMARK ESTIMATING” SMARTPHONE APPLICATION (the “app”) YOU SHALL BE DEEMED TO HAVE ACCEPTED THE LATEST VERSION OF THIS END USER LICENCE AGREEMENT, AND AGREED TO BE BOUND BY, AND TO COMPLY WITH, THIS END USER LICENCE AGREEMENT. IF YOU DO NOT ACCEPT THIS END USER LICENCE AGREEMENT YOU MAY NOT USE THE APP.

 

Parties to this End User Licence Agreement

This End User Licence Agreement (“EULA”) is entered into between you (the person who downloads, installs, accesses and/or operates the app) (“you”) and Benchmark Global Pty Ltd  [ABN 18 167 294 028]  of 1/83-89 Renwick St, Redfern NSW 2016 Australia (referred to herein as “we”, and “us”), and not with  Google Inc., Apple Inc., or any other third party.

 

Other Terms

Your use of the app is subject to the provisions of this EULA and any other terms and conditions set out on our website at www.benchmarkestimating.com (the “website”).  If you are an employee of an entity that is a user of Benchmark Estimating Software (herein referred to as “Parent Entity”), your use of the app may be subject to the “Terms of Service” signed by an approved representative of your Parent Entity.

You are required to seek approval outside of this Agreement regarding those “Terms of Service” applicable by your Parent Entity.

 

About the app

The app is owned by us and may be installed on iPad, iPhone, Android phone, Android tablet and any other internet-enabled devices approved by us from time to time.  The app requires an active internet connection. You are responsible for all telecommunications and data charges you incur in connection with your use of the app.

 

Modification of the app

We reserve the right to withdraw and/or modify the app at any time in our absolute discretion. You are not authorised or licensed to, and you must not, modify the app at any time.

 

How to contact us

Any questions, suggestions or complaints with respect to the app may be sent to us via the following means:

Post:                         1/83-89 Renwick St, Redfern NSW 2016

Telephone:              +61 2 8396 6555

Email:                      product@benchmarkestimating.com

 

Our Intellectual Property Rights

You agree and acknowledge that, as between you and us, we are the sole owner of all rights (including all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights) in the app.

 

You have no rights in the app or in any part of it or in any modification or enhancement thereof, other than the rights temporarily granted to you pursuant to the Licence set out below.

 

You and us each acknowledge that, as between you and us, in the event of any third party claim that the app or your possession and/or use of the app infringes that third party’s intellectual property rights, we, not  Google Inc. , will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. However, you will be solely responsible for any such claims caused by the use of the app by you with software or hardware not approved by us, or where caused by your breach of this EULA.

 

Your Licence to download, install and use the app

We grant you a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable licence to download, install and operate the app only on any approved smartphone, tablet or other device that you own or control that meets our minimum requirements for the app (“Licence”).  You may not make any use of the app except as permitted by the Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our intellectual property rights in the app. Without limiting the foregoing provisions of the Licence, you must not, under any circumstances, sell or resell access to the app or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicence, copy or duplicate the app or any content you obtain via the app. In addition, you must not, nor may you permit any person to:

  • copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, creative derivative works from or enhance the app and/or any content in the app (except as expressly permitted by the Copyright Act 1968 (Cth));
  • do any act that would or might invalidate or be inconsistent with our intellectual property rights or those of our licensors;
  • use the app in any way that infringes our rights or the rights of any third party; or
  • take any steps to circumvent any technological protection measure or security measures in the app.

You must not use the app or any part of it in any way which is in breach of this EULA, any other terms and conditions set out on the website, or any statute, regulation, law or legal right of any person.

 

Our right to terminate

The Licence is conditional upon your continued compliance with:

  • the provisions of this EULA;
  • all other terms and conditions set out on the website or in the “Terms of Service” issued to you or your Parent Entity; and
  • all applicable laws and regulations governing the downloading, installation and operation of the app.

 

We may terminate this EULA and the Licence at any time if you fail to comply with any provision of this EULA or if we choose to discontinue providing the app or any computer server or website required for the intended operation of the app, or if we deem that it is reasonably necessary to do so to protect our legitimate interests. Upon termination of this EULA or the Licence:

(a)     you must cease to use the app; and

(b)     you must delete all copies of the app in your possession and control,

without prejudice to any other of your or our rights or remedies accrued prior to termination.

 

Accessing the app

You acknowledge that your use of the app may not be error free and your use of the app may be interrupted. The app may be unusable while we are conducting maintenance of the website or other back-end infrastructure or as a result of any telecommunications failure or fault, if your device loses internet connectivity or as a result of other matters beyond our reasonable control. To the extent possible by law, we shall not have any liability in respect of any of the foregoing matters.

 

Authorised users

Certain sections of the app and content are accessible to authorised users only. Authorised users are users who can log in to the app by entering an approved Email, Password and ID, and by doing so connect to data sourced from a Benchmark Estimating Software database, which allows that data to be displayed in the app.  You can become an authorised user by gaining permission and credentials from a Benchmark Estimating Software Administrator within your Parent Entity.  Additional terms and conditions relating to authorised users’ use of the app are set out in the “Terms of Service” document issued to your Parent Entity at time of the initial configuration process. Any member services which are accessible via the app are subject to those terms and conditions and apply equally in respect of the app.  A Benchmark Estimating Software Administrator within your Parent Entity is solely responsible for administering authorised users within your Parent Entity.

 

Privacy Policy

Please see our privacy policy accessible at https://www.benchmarkestimating.com/privacy-policy/. Your use of the app constitutes acceptance of our privacy policy. Our privacy policy is incorporated herein by reference.

 

Maintenance and support

We are solely responsible for providing any maintenance and support services with respect to the app, if specified in this EULA, or as required under applicable law (if at all). We and you each acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance and support services with respect to the app.

 

If we agree to provide maintenance and support services with respect to the app, we will publish details of our maintenance and support services on the website.

 

Warranty and Product Claims

You agree that we are solely responsible for any product warranties pertaining to the app, whether express or implied by law, to the extent not otherwise effectively disclaimed hereunder.

 

You and us each acknowledge that as between you and us, we, are responsible for addressing any of your claims and of any third party relating to the app or your or their possession and/or operation of the app, including, but not limited to: (i) product liability claims made in respect of the app; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the app.

 

User Content

We do not accept liability in relation to any content displayed on the app that is entered into or uploaded into the app by you or any other person; this includes content and data that is contained within your Benchmark Estimating Software database and in the synchronised app cloud database. The person who enters the content into or uploads the content into the app or into Benchmark Estimating Software is responsible for the legality of the content and any claims arising in respect of the relevant content. We do not accept responsibility for your conduct or the conduct of any other user of our app or of Benchmark Estimating Software. Without limiting the foregoing provisions, if you enter into any transaction with any other user of the app, and a dispute arises in respect of that transaction, the dispute is solely between you and that user, and does not involve us and you release us from any claims that you may have against us in relation to any conduct of any user of the app.

 

Where you upload any information, text, graphics, or other audio or visual material (“content”) into, or enter any content into, the app or Benchmark Estimating Software, you warrant, agree and represent that:

  • you are fully entitled and authorised to upload, input, transfer and disclose the content to us and our other users;
  • the content and our collection, use, storage and/or disclosure of that content in the course of operating our business will not breach any applicable law or right of any person.

 

You agree that as between you and us, you are solely responsible for the accuracy, legality and quality of all content you upload into, or enter into, the app or Benchmark Estimating Software, and for obtaining all and any permissions, licenses, rights and authorisations necessary for us and third parties authorised by us, to use, host, transmit, store and disclose that content. You indemnify us in respect of any claims made against us in respect of any content which you enter into, or upload into the app or Benchmark Estimating Software and/or which relate to your goods and/or services and/or your advertising and/or sales and/or marketing practices.

 

We make no representation in relation to the availability, quality, suitability and appropriateness of any goods and services supplied, or failed to be supplied, by any user of the app.  We are not a party to any transaction for the supply of goods or services advertised by any user of the app. Before entering into any transaction with any other user of the app, you should carefully consider the applicable terms and conditions applicable to the transaction, obtain all appropriate advice and take all appropriate precautions.

 

The publication of any content on the app does not constitute a recommendation, endorsement or any advice from us or any of our officers, employees or agents in respect of the content. Any content displayed on the app is solely the responsibility of the person who entered or uploaded the content into the app or Benchmark Estimating Software. You agree and accept to use the app at your sole risk and that, to the extent possible by law, other than liability which by law cannot be excluded, we shall not (and neither shall Apple or Google) have any liability to you in respect of any content posted to the app or available through the app by any person.

 

Limitation of liability

Except in respect of any non-excludable guarantees implied by the Australian Consumer Law, we do not represent that the information and content displayed on the app is accurate, correct, up-to-date or error free.

 

The information and content on the app is not professional advice. You agree that you will seek all appropriate financial, legal and other advice as applicable before relying on any information you obtain from the app.

 

Except in respect of any non-excludable guarantees implied by the Australian Consumer Law, you and we are not liable to each other for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.

 

Except in respect of any non-excludable guarantees implied by the Australian Consumer Law, to the maximum extent permitted by law (and if permitted by law), we will not have any liability to you for any loss or damage howsoever incurred in relation to your use or inability to use the app.

 

The goods and services supplied under this EULA may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depend on whether you are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where you are a ‘consumer’ for the purposes of the Australian Consumer Law, we are required to provide the following mandatory statement to you: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

 

If the goods or services supplied by us to you are supplied to you in your capacity as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended you will have the benefit of certain non-excludable guarantees in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, we limit our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by us to you, in respect of each of the goods and services, where it is fair and reasonable to do so, at our option, to one or more of the following:

 

(a) if the breach relates to goods:

  •  the replacement of the goods or the supply of equivalent goods;
  • the repair of such goods;
  • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
  • the payment of the cost of having the goods repaired; and

(b) if the breach relates to services:

  • the supplying of the services again; or
  • the payment of the cost of having the services supplied again.

 

In order for you to claim against us under a non-excludable guarantee implied by the Australian Consumer Law, or under an express warranty given in respect of the goods or services provided under this EULA, you must provide written notice to us with documentary evidence substantiating the claim, for our review, and, in respect of the app, must continue to use it only in accordance with the provisions of this EULA.

 

Upon receipt of a valid claim from you under a non-excludable guarantee implied by the Australian Consumer Law, we will contact you to arrange a suitable remedy. Where we elect to repair goods the subject of a valid claim, you agree that the goods may be replaced by refurbished goods of the same type rather than being repaired and refurbished parts may be used to repair goods. You acknowledge that where the goods are repaired and are capable of retaining user-generated data, it is possible that the repair of the goods may result in loss of data.

 

Any warranty against defects provided by us to you in your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.

 

All conditions, warranties, guarantees, rights and remedies implied in this EULA are excluded, to the extent possible by law.

 

Export Control

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

Personal Property Securities Act

You are expressly prohibited from registering a security interest on the Personal Property Securities Register established under section 147 of the Personal Property Securities Act 2009 (Cth) in respect of the app or the Licence granted under this EULA. Without limiting our rights, if you or any person on your behalf records a security interest of any type on the Personal Property Securities Register in respect of the app or the Licence, we may immediately terminate this EULA and/or the Licence granted hereunder without notice.

 

General

The app is only available to persons over the age of eighteen (18) years of age and who are able to enter into legally binding contracts.

 

All rights not expressly granted to us in this EULA are expressly reserved by us.

 

You shall not assign, transfer, licence or novate your rights or obligations under this EULA without our prior written consent. We may assign, transfer, licence or novate our rights under this EULA by notice. We may also, by notice, novate our obligations under this EULA at any time in connection with a restructure or sale of all or part of our business.

 

This EULA together with the terms and conditions set out in the “Terms of Service” agreement between us and your Parent Entity, constitutes the complete and exclusive statement of the agreement between you and us, superseding all proposals or prior agreements, oral or written, and all other communications between you and us relating to the app.

 

No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.

 

If any provision of this EULA or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this EULA and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.

 

This EULA shall be governed by the laws of New South Wales Australia, and you and us submit to the non-exclusive jurisdiction of the courts located in New South Wales and the courts of appeal therefrom.

 

Amendment of this EULA

We reserve the right to amend this EULA at any time. Your continued use of the app will be deemed to constitute your acceptance of the amended EULA. It is your responsibility to ensure you are familiar with the most recent version of this EULA prior to each use of the app.