Concrete Booking Agency PTY LTD ("Concrete Sales") owns certain Software (as defined herein) that it has developed and makes commercially available to its customers for use as a cloud based, hosted service offering (the "Concrete Sales Online Platform", as more fully defined below) together with one or more mobile applications (each a "Concrete Sales Mobile Application" or "App").
In connection with the use of the Concrete Sales Online Platform you and/or your organisation or corporation (the "User") hereby agree to the terms of service and conditions contained herein (collectively, the "Terms of Service").
THESE TERMS OF SERVICE APPLY TO ALL USERS OF THE CONCRETE SALES ONLINE PLATFORM, INCLUDING USERS WHO USE THE CONCRETE SALES ONLINE PLATFORM, USERS WHO DOWNLOAD THE CONCRETE SALES MOBILE APPLICATION, AND USERS WHO SIMPLY VIEW THE CONTENT ON OR AVAILABLE THROUGH THE CONCRETE SALES ONLINE PLATFORM AND/OR APP.
BY ACCEPTING THE TERMS OF SERVICE, EITHER BY ACCEPTING THE TERMS OF SERVICE ONLINE OR USING, OR ACCESSING THE CONCRETE SALES ONLINE PLATFORM AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, THE USER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
IF, AFTER READING THE TERMS OF SERVICE, THE USER DOES NOT ACCEPT OR AGREE TOTHE TERMS AND CONDITIONS CONTAINED HEREIN, THE USER SHALL NOT USE, OR ACCESS THE CONCRETE SALES ONLINE PLATFORM.
IF YOU ARE AN AGENT OR EMPLOYEE OF THE USER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE IS DULY AUTHORISED TO ACCEPT THESE TERMS OF SERVICE ON USER'S BEHALF AND TO BIND THE USER, AND (II) THE USER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THESE TERMS OF SERVICE AND PERFORM ITS OBLIGATIONS HERE UNDER.
1. Definitions
1. In these Terms of Service:
a. "Account" means the User account for the Concrete Sales Online Platform or App pursuant to Section 4.1 hereof.
b. "Concrete Sales Mobile Application" or "App" means Concrete Sales’ mobile application for accessing and using the Concrete Sales Online Platform.
c. "Concrete Sales Online Platform" means Concrete Sales' proprietary hosted software-as-a-service offering comprised of the Concrete Sales Web Application and the Concrete Sales Mobile Application, together with any ancillary services available in connection there with, as may be updated from time to time by Concrete Sales in its sole discretion.
d. "Concrete Sales Web Application" means the Software made available by Concrete Sales as a service at https://www.concretesales.com.au, or such other URLs or web sites owned or operated by Concrete Sales from time to time.
e. "Data Controller" means the natural or legal person who alone or jointly with others determines the purposes and means of the Processing of Personal Information.
f. "Data Processor" means the natural or legal person who processes Personal Information on behalf of the Data Controller.
g. "Data Protection Laws" means all laws and regulations, including laws and regulations of Australia (including the Privacy and Data Protection Act 2014 and the Spam Act 2003), applicable to the Processing of Personal Information under these Terms of Service.
h. "Documentation" means the written or electronic documentation, including user guides, reference materials, installation manuals and/or release notes, if any, that Concrete Sales generally makes available to Users of the Concrete Sales Online Platform, as the case may be.
i. "Malicious Code" means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
j. "Personal Information" means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
k. "Process" or "Processing" means any operation or set of operations which is performed upon Personal Information, whether by automatic means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
l. "Products" means any construction materials and/or services offered by Supplier to User for purchase and delivery through use of the Concrete Sales Online Platform.
m. "Software" means Concrete Sales' proprietary software program in machine-readable object code format and other related software, including the Documentation for such program(s).
n. "Supplier" means an entity that is in the business of selling construction materials and/or other goods as configured on the Concrete Sales Online Platform and has entered into an agreement with Concrete Sales for the sale and delivery of Products to a User.
o. "Support" means the terms on which Concrete Sales provides technical support for the Concrete Sales Online Platform to User.
p. "User" means an individual or entity which has accepted these Terms of Service and created an Account to use the Concrete Sales Online Platform.
q. "User Data" means the data submitted by User to the Concrete Sales Online Platform or collected and processed for User using the Concrete Sales Online Platform, including the data of User's employees, contractors, or customers, as applicable.
2. The Concrete Sales Online Platform
1. Right to Use the Concrete Sales Online Platform. Subject to the terms and conditions of these Terms of Service, Concrete Sales hereby grants to User a non-exclusive, worldwide, non-transferable, non-sub licensable, internal right to (a) access and use (and to permit Users to access and use) the Concrete Sales Online Platform; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the User's permitted use of the Concrete Sales Online Platform.
2. Reservation of Rights. Concrete Sales and its licensors own and shall retain all right, title, and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Concrete Sales Online Platform and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of these Terms of Service. User shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in these Terms of Service, Concrete Sales reserves all rights, title, and interest in and to the Software and Documentation. No rights are granted to User pursuant to these Terms of Service other than as expressly set forth in these Terms of Service.
3. Restrictions. User shall not (and shall not allow any third party to): (a) possess, download or copy the Concrete Sales Online Platform or any part of the Concrete Sales Online Platform, including but not limited any component which comprises the Concrete Sales Online Platform, but not including any output from the Concrete Sales Online Platform; (b) knowingly interfere with service to any of Concrete Sales' Users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, the Concrete Sales Online Platform and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Concrete Sales Online Platform; (e) sell, rent, lend, transfer, distribute, licence, or grant any rights in the Concrete Sales Online Platform or Documentation in any form to any person without the written consent of Concrete Sales; (f) remove any proprietary notices, labels, or marks from the Concrete Sales Online Platform or Documentation; (g) create any "links" to or "frame" or "mirror" of the Concrete Sales Online Platform or any portion thereof; or (h) use the Concrete Sales Online Platform to create, collect, transmit, store, use or process any User Data that: (a) User does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).
4. Rights in Derivative Data. User acknowledges and agrees that the Concrete Sales Online Platform compiles, stores and uses aggregated data and system usage, analytics, and diagnostic information to monitor and improve the Concrete Sales Online Platform and for the creation of new products. User hereby grants to Concrete Sales a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual licence to collect, process and aggregate User Data and other such information and data and create anonymised, aggregated data records and use such anonymised and aggregated data, and all modifications thereto and derivatives thereof ("Derivative Data") to improve the Concrete Sales Online Platform, develop new products and services, to understand usage, and for any other business purpose. This Derivative Data is no longer associated with User or a User and as such is not User Data.
3. Products, Delivery and Orders
1. Products:
a. Concrete Sales is not the retailer of any Products offered by Supplier on the Concrete Sales Online Platform. User acknowledges that the Concrete Sales Online Platform is a booking platform and Concrete Sales is a third party to any transaction between User and Supplier. Concrete Sales will not be responsible for any Products, nor will Concrete Sales be liable for the quality of any of the Products provided by Supplier to User. These Terms of Service only govern the User's use of the Concrete Sales Online Platform and its relationship with Concrete Sales and not any relationship between User and Supplier.
b. User acknowledges that (it) all Products are provided by Supplier; (ii) Concrete Sales does not supply, manufacture, or deliver any Products; (iii) Concrete Sales does not engage in any material preparation or assess the specifications of any Products offered by any Supplier on the Concrete Sales Online Platform; (iv) Concrete Sales does not guarantee the suitability, legality, or ability of any Supplier to offer such Products.
2. Delivery of Products: Supplier has sole responsibility for the delivery of all Products to User. Concrete Sales is not a delivery or carrier service. Concrete Sales is not responsible for: (i) the efficient delivery of Products to Users by Supplier; and/or (ii) any delay by Supplier in delivery of Products ordered by User. Concrete Sales is also not responsible for any Products that are lost or damaged during delivery and all queries related to any lost or damaged products must be directed to Supplier.
3. Quantities and Substitution: Concrete Sales reserves the right to limit quantities of Products as listed on the Concrete Sales Online Platform and will not be liable for any costs related to the procurement of any substitute products if the Products delivered by Supplier do not meet User's expectations.
4. Orders:
a. Any order for Products placed by User on the Concrete Sales Online Platform is not binding until said order is accepted or approved by Supplier.
b. Order Cancellation: If User requests an order cancellation, Concrete Sales may cancel the order on behalf of Supplier. If User requests an order cancellation for an order that has already been accepted by Supplier, User must contact Supplier directly to request a cancellation. Concrete Sales is not responsible for any orders on the Concrete Sales Online Platform once an order has been accepted by Supplier.
c. Modification: User must communicate any order modification or alternative request to Supplier through the Concrete Sales Online Platform at least two (2) hours prior to the expected delivery date of a Product. Concrete Sales does not guarantee that Supplier will accept or approve User's order modification request.
4. Account Activation and Deletion
1. Accounts. User is required to register an account with Concrete Sales (an "Account") to use the Concrete Sales Online Platform for purchasing Products. During registration, a User will be asked to provide Personal Information to create an Account. User shall ensure that such account activation information is accurate and complete and that such information remains current. User is also responsible for all activity that occurs in User's Account and should capture any data related to the purchase of Products in their Account for User's own internal bookkeeping purposes.
2. Passwords. User is responsible for keeping all Account passwords secure. Concrete Sales will not be liable for any loss or damage caused by or arising from a failure by User to maintain the security of the User's Account and passwords.
3. Account Deletion: User may delete a User Account in accordance with the following: (1) User has no open orders associated with the User Account; and (2) there is no outstanding payment due and payable to Supplier for any Products. User Account data as referenced in Section 4.1 should be captured by User prior to deletion. After deletion of an Account, Concrete Sales may, at its soled is creation, supply User with Account data upon User's request.
5. Support
1. Support. Concrete Sales will provide Support to User through a live chat feature in the App and/or Concrete Sales Web Application in relation to the use and functionality of the App and/or Concrete Sales Web Application at no additional charge. Concrete Sales does not provide any support or advice in relation to the Products listed on the Concrete Sales Online Platform and has no liability for any support or advice provided to User by Supplier in relation to the Products. Concrete Sales provides minimal support and maintenance for the App and Concrete Sales Web Application on a commercially reasonable effort basis only and User acknowledges that Concrete Sales is not obligated to provide any support or maintenance for the App and Concrete Sales Web Application.
6. Intellectual Property Rights and Ownership
1. The Concrete Sales Online Platform and its entire contents, features, and functionality, including but not limited to all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement, are owned by Concrete Sales, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including, without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
2. Concrete Sales' name and all related names, logos, product and service names, designs, images, and slogans are trademarks of Concrete Sales or its affiliates or licensors. User may not use such marks without the prior written permission of User. Other names, logos, product and service names, designs, images, and slogans mentioned, or which appear on the Concrete Sales Online Platform are the trademarks of their respective owners. Use of any such property, except as expressly authorised, shall constitute a violation of the rights of the property owner and may be a violation of federal or other laws and could subject the violator to legal action.
3. User shall not directly or indirectly reproduce, compile for an internal database, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Concrete Sales Online Platform, in any form or medium whatsoever except:
a. User's computer and browser may temporarily store, or cache copies of materials being accessed and viewed; and
b. In the event social media platforms are linked to certain content on the Concrete Sales Online Platform, User may take such actions as the Concrete Sales Online Platform and such third party social media platforms permit.
4. User is not permitted to modify copies of any materials from the Concrete Sales Online Platform nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Concrete Sales Online Platform.
5. Any use of the Concrete Sales Online Platform and materials not expressly permitted by these Terms of Service is a breach of these Terms of Service and may infringe or violate copyright, trademark, and other intellectual property or other proprietary laws.
6. If User copies or downloads any part of the Concrete Sales Online Platform in breach of these Terms of Service, User's right to use the Concrete Sales Online Platform will cease immediately and User must, at Concrete Sales' option, return or destroy any copies of the materials Users have made. Any use of the Concrete Sales Online Platform and materials not expressly permitted by these Terms of Service is a breach of these Terms of Service and may infringe or violate copyright, trademark, and other intellectual property or other proprietary laws.
7. Third Party Sites
1. Third Party Sites. The Concrete Sales Online Platform may provide links or pointers to third party sites, content, resources, or email content. Concrete Sales makes no representations about any other websites, content, resources, or email content that may be accessed from the Concrete Sales Online Platform. If User chooses to access any such sites, content, resources, or email content Supplier does so at its own risk. Concrete Sales has no control over the contents of any such third party sites, content, resources, or email content and accepts no responsibility for such sites, content, resources, or email content or for any loss or damage that may arise from User's use of them. User is subject to any terms and conditions of such third party sites, content, resources, or email content that may apply. All statements and/or opinions expressed in any such third party site, content, resources, or email content other than the content provided by Concrete Sales, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of Concrete Sales and Concrete Sales is not responsible, or liable to User or any third party, for the content or accuracy of any third party materials.
8. User Data
1. Ownership. As between Concrete Sales and User, User exclusively owns all rights, title, and interest in and to all User Data. Concrete Sales does not acquire any rights, title, or ownership interest of any kind whatsoever, express or implied, in any of the User Data.
2. Licence to Use User Data. User hereby irrevocably grants all such rights, licences, and permissions in or relating to User Data to Concrete Sales as are necessary or useful: (i) for User to use the Concrete Sales Online Platform; and (ii) to enforce this Agreement and exercise its rights and perform its obligations hereunder.
3. Personal Information. To the extent that User Data includes Personal Information, Concrete Sales shall secure Personal Information with commercially reasonable safeguards appropriate to the level of sensitivity of the Personal Information. Concrete Sales shall only Process Personal Information on behalf of and in accordance with User's instructions and Data Protection Laws for the following purpose:(i) Processing in accordance with the Terms of Service; and (ii) Processing to comply with other documented reasonable instructions provided by User where such instructions are consistent with the Terms of Service in relation to all Personal Information provided by or through User to Concrete Sales under these Terms of Service. Concrete Sales shall, in connection with the provision of the Concrete Sales Online Platform, comply with all applicable Data Protection Laws, as well as Concrete Sales' Privacy Policy.
4. User is Data Controller. In relation to all Personal Information provided by or through User to Concrete Sales under this Agreement, User will at all times remain the Data Controller and will be responsible for compliance with all applicable Data Protection Laws. To the extent that Concrete Sales processes Personal Information while providing the Concrete Sales Online Platform and related services under this Agreement, it will do so only as a Data Processor acting on behalf of the User (as Data Controller) and in accordance with the requirements of this Agreement.
5. Concrete Sales' Processing of Personal Information. Concrete Sales shall only Process Personal Information on behalf of and in accordance with User's documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with these Terms of Service; (ii) Processing initiated by User's Users in their use of the Concrete Sales Online Platform; and (iii) Processing to comply with other documented reasonable instructions provided by User where such instructions are consistent with the terms of these Terms of Service.
6. Technical and Organisational Safeguards. In connection with the provision of the Concrete Sales Online Platform, Concrete Sales will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Information and Concrete Sales shall secure Personal Information with safeguards appropriate to the level of sensitivity of the Personal Information. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, or disclosure of Personal Information by Concrete Sales personnel except (a) to provide the Concrete Sales Online Platform and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by User. Concrete Sales shall, in connection with the provision of the Concrete Sales Online Platform, comply with Data Protection Laws, as well as the Concrete Sales' Privacy Policy. Concrete Sales shall ensure that its personnel engaged in the Processing of Personal Information are informed of the confidential nature of the Personal Information and have received appropriate training on their responsibilities and Concrete Sales shall take commercially reasonable steps to ensure the reliability of any Concrete Sales personnel engaged in the Processing of Personal Information.
7. Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorised access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorised access) (each a "Security Incident"), Concrete Sales will promptly notify User of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of User, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide User with detailed information about the Security Incident. Concrete Sales will take all commercially reasonable steps to mitigate the effects of the Security Incident or assist User in doing so; and will provide prior notice to User of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without User's prior written approval, not to be unreasonably withheld, conditioned, or delayed. Concrete Sales will work with and coordinate with User on any such notices in any event. Concrete Sales will comply with this Section 8.7 at Concrete Sales' cost unless the Security Incident arose from User's negligent or wilful acts or Concrete Sales' compliance with User's express written instructions.
8. Subcontracting. Concrete Sales may engage third party subcontractors to assist in the provision of the Concrete Sales Online Platform under this Agreement. User authorises Concrete Sales to subcontract the processing of Personal Information under this Agreement provided that (i) Concrete Sales shall maintain a list of such sub processors and will provide a copy of that list to User upon request; and (ii) all subprocessors will be contractually required by Concrete Sales to abide by substantially the same obligations as Concrete Sales under this Agreement to protect Personal Information, such that the data processing terms of the subcontract will be no less onerous than the data processing terms set out in this Agreement.
9. User Responsibilities
1. User Accounts. User is responsible for its compliance with these Terms of Service, all activities that occur in User accounts, and for all User Data uploaded, collected, generated, stored, displayed, distributed, transmitted, or exhibited on or in connection with User's Account. Users all: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data and the means by which User acquired User Data; (b) use commercially reasonable efforts to prevent unauthorised access to, or use of, the Software or the Concrete Sales Online Platform, and notify Concrete Sales promptly of any such unauthorised access or use; and (c) use the Concrete Sales Online Platform only in accordance with the Documentation and applicable laws and government regulations.
2. Use Guidelines. User shall use the Concrete Sales Online Platform solely for its internal business purposes as contemplated by these Terms of Service and shall not interfere with or disrupt the integrity or performance of the Concrete Sales Online Platform or the data contained therein.
3. Network Access and Equipment. User is responsible for obtaining the data network necessary to use the Concrete Sales Online Platform and for acquiring, servicing, maintaining, and updating all equipment, computers, software, and communications services (such as Internet access) that are required to allow User to access and use the Concrete Sales Online Platform and for all expenses relating thereto. User agrees to access and use and shall ensure that all access and use of the Concrete Sales Online Platform is in accordance with all operating instructions or procedures that may be issued by Concrete Sales from time to time.
4. Feedback. User may provide reasonable feedback to Concrete Sales including, but not limited to, suitability, problem reports, suggestions, and other information with respect to the Concrete Sales Online Platform ("Feedback"). User hereby grants to Concrete Sales a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicencable, irrevocable, perpetual licence to use or incorporate into the Concrete Sales Online Platform, Documentation and any other Concrete Sales products or services, or for any other purposes, any Feedback provided by Users.
10. Prices, Fees, and Payment
1. Prices: Concrete Sales reserves the right to modify or adjust the prices for Products as listed on the Concrete Sales Online Platform at any time. Product prices listed on the Concrete Sales Online Platform are informational in nature and User understands that User will be charged the price of the Product at the time of purchase, which may differ slightly from the price listed on the Concrete Sales Online Platform. Unless otherwise stated, all prices are in Australian dollars and do not include Taxes. All sales are final and payment obligations are non-cancellable.
2. Charges. User understands and acknowledges that use of the Concrete Sales Online Platform will result in charges to User for the Products purchased from a Supplier ("Charges"). User is responsible for the payment of all Charges incurred in User's use of the Concrete Sales Online Platform and purchase of the Products, whether or not authorised by User. Concrete Sales shall facilitate User's payment of the applicable Charges on behalf of Supplier as Supplier's limited payment collection agent. Payment of the Charges in such manner shall be considered to constitute payment made directly by User to Supplier.
3. Fees and Payment: Concrete Sales may charge User additional fees upon User purchasing Products from Supplier through use of the Concrete Sales Online Platform. Such fees may include but are not limited to delivery fees, insurance fees, service fees, small quantity fees, expedited fees, or surge fees (collectively, the "Fees"). User agrees that Fees may also be charged for any order changes because of User removing or adding Products to its order after the order has been accepted and/or approved by Supplier. User must pay for the Products using the payment function as available on the App or Concrete Sales Web Application. The Concrete Sales Online Platform accepts all major credit cards and does not accept cheques, cash, wire transfers, or cryptocurrency as acceptable methods of payment.
4. Taxes. User is responsible for paying all HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes") associated with the Charges as defined in Section 10.2. For clarity, Concrete Sales is solely responsible for taxes assessable against it based on its income, property, and employees.
5. Refunds: All orders for the Products, once delivered, are final and non-refundable. Concrete Sales does not provide for or facilitate any refunds, credits, or replacements to User for the Products. If User wants to initiate to return a Product for the purposes of a refund or replacement, User must contact Supplier, which can be done through the App, and Supplier will provide a refund, credit, or replacement at its sole discretion.
11. Confidentiality Obligations
1. Definition of Confidential Information. As used herein, "Confidential Information". means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of these Terms of Service, the Concrete Sales Online Platform and Documentation, User Data (which is the Confidential Information of the User), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
2. Confidentiality. Subject to Section 11.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party's Confidential Information only during the Term and only as necessary to perform the Receiving Party's obligations under these Terms of Service; (b) disclose the Disclosing Party's Confidential Information only to the Receiving Party's directors, officers, agents, employees and authorised subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party's rights under these Terms of Service. User shall not disclose any performance, benchmarking, or feature-related information about the Concrete Sales Online Platform.
3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
6. Return of Confidential Information. Upon Disclosing Party's written request upon expiration or termination of these Terms of Service (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all original sand copies, in whatever form or medium, of all the Disclosing Party's Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party's possession, power or control and the Receiving Party will delete all of the Disclosing Party's Confidential Information from any and all of the Receiving Party's computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party's Confidential Information comply with this Section 11.6.
12. Limited Warranties and Disclaimers
1. Limited Warranties. Concrete Sales hereby represents and warrants to User that:
a. The Concrete Sales Online Platform will perform materially in accordance with the Documentation therefor;
b. the Concrete Sales Online Platform will not contain any Malicious Code;
2. General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE CONCRETE SALES ONLINE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" AND CONCRETE SALES MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANT ABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THESE TERMS OF SERVICE; (II) THE SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR USER DATA TRANSMITTED TO OR FROM CONCRETE SALES VIA THE CONCRETE SALES ONLINE PLATFORM. CONCRETE SALES DOES NOT REPRESENT OR WARRANT THAT THE CONCRETE SALES ONLINE PLATFORM WILL MEET ANY OR ALL OF USER'S PARTICULAR REQUIREMENTS, THAT THE CONCRETE SALES ONLINE PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. CONCRETE SALES DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS.
3. Internet Connectivity Disclaimer. Concrete Sales makes the Concrete Sales Online Platform available for access via the Internet. User shall provide, at User's own expense, all necessary hardware, applications, and Internet connectivity necessary to access the Concrete Sales Online Platform over the Internet. User is responsible for and shall ensure that User's computer equipment and an internet connection meets the minimum specifications published by Concrete Sales in the Documentation and updated from time to time on the Concrete Sales' Web Application, and User shall periodically update User's computer equipment and/or Internet connection to meet such minimum specifications. User hereby acknowledges that the Concrete Sales Online Platform may be interrupted due to (a) website downtime for scheduled maintenance at Concrete Sales' sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Concrete Sales' control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, computer or telecommunications failures, or delays involving hardware of software not within Concrete Sales' control or network intrusions. User hereby acknowledges and agrees that Concrete Sales shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Concrete Sales from any claims relating thereto.
13. Indemnities
1. By Concrete Sales:
a. Intellectual Property Infringement Indemnity. Subject to these Terms of Service, Concrete Sales shall defend, indemnify and hold User harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against User by a third party alleging that the use of the Concrete Sales Online Platform as contemplated hereunder infringes the intellectual property rights of a third party (each an "Infringement Claim"); provided, that User (a) promptly gives written notice of the Infringement Claim to Concrete Sales; (b) gives Concrete Sales sole control of the defence and settlement of the Infringement Claim (provided that Concrete Sales may not settle or defend any Infringement Claim unless it unconditionally releases User of all liability); and (c) provides to Concrete Sales, at Concrete Sales’ cost, all reasonable assistance and information.
b. Other Remedies. If (a) Concrete Sales becomes aware of an actual or potential Infringement Claim, or (b) User provides Concrete Sales with notice of an actual or potential Infringement Claim, Concrete Sales may (or in the case of an injunction against User, shall), at Concrete Sales’ sole option and determination: (i) procure for User the right to continue to use the Concrete Sales Online Platform; or (ii) replace or modify the Concrete Sales Online Platform with an equivalent or better service so that User's use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Concrete Sales in its sole discretion, terminate the rights granted hereunder to the User to access and use the Concrete Sales Online Platform pursuant to this Section (b), less any outstanding fees owed on such affected portion of the Concrete Sales Online Platform.
c. Exclusions. The indemnity in Section 13.1 does not extend to (1) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Concrete Sales Online Platform with other products, software or services not provided or approved by Concrete Sales, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Concrete Sales Online Platform other than the most current version; or (3) any use, distribution, sublicensing or exercise of any other right outside the scope of these Terms of Service.
d. Limitation. Notwithstanding any other provision of these Terms of Service, the liability of Concrete Sales to User under this Section 13 shall not exceed one hundred dollars ($100.00). Concrete Sales agrees to obtain User's consent for any settlement in excess of $100.00. In no event shall Concrete Sales be responsible for any cost, expense or compromise incurred or made by User without Concrete Sales' prior written consent.
e. Entire Liability. THIS SECTION 13 CONTAINS CONCRETE SALES'S ENTIRE LIABILITY, AND USER'S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.
2. By User:
a. User shall defend, indemnify and hold Concrete Sales harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Concrete Sales by a third party (a) alleging that the User Data or User's use of the Concrete Sales Online Platform in violation of these Terms of Service, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of these Terms of Service; (c) based on or in any way related to a dispute between User and one of its Suppliers; or (d) caused by any negligent act or omission of User or its employees, contractors or agents (each a "User Indemnified Claim"); provided, that Concrete Sales (x) promptly gives written notice of the User Indemnified Claim to User; (y) gives User sole control of the defence and settlement of the User Indemnified Claim (provided that User may not settle or defend any User Indemnified Claim unless it unconditionally releases Concrete Sales of all liability); and (z) provides to User, at User's cost, all reasonable assistance and information.
14. Limitation of Liability
1. Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 14.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE CONCRETE SALES ONLINE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
2. Limitation on Direct Damages. SUBJECT TO SECTION 14.3 HEREOF, IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR CLAIMS FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM USER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
3. Exclusion. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY'S LIABILITY SET FORTH IN THESE TERMS OF SERVICE SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS (SUBJECT TO THE LIMITATION CONTAINED IN SECTION 13.1(d) HEREOF), (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS; (IV) FRAUD OR WILLFUL MISCONDUCT, OR (V) BODILY INJURY OR DEATH.
15. Export Restrictions
User hereby represents and warrants that User is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Australia.
16. Assignment
User may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Concrete Sales. Any attempt by User to assign its rights or obligations under these Terms of Service in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17. General
1. Force Majeure. Neither Concrete Sales nor User shall be deemed to be in default of any provision of these Terms of Service (other than User's obligation to pay amounts due to Concrete Sales hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, epidemics or pandemics, civil disturbance, strikes, fires, or other catastrophes.
2. Waiver. The failure of a party to claim a breach of any term of these Terms of Service shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under these Terms of Service shall constitute a waiver of that right.
3. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
4. Governing Law. These Terms of Service shall be governed by the laws of the State or Territory in which the Goods & Work is supplied/performed, without regard to its conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms of Service is expressly excluded and does not apply to these Terms of Service.
5. Entire Agreement. These Terms of Service is the entire agreement between User and Concrete Sales in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with Concrete Sales.
6. Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
7. Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, CONCRETE SALES MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART AT ANY TIME, AT ITS DISCRETION, WITHOUT NOTICE. CONCRETE SALES WILL NOT BE LIABLE IF, FOR ANY REASON, ALL OR ANY PART OF THE CONCRETE SALES ONLINE PLATFORM IS RESTRICTED TO USERS OR UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD.
Last update: March 21, 2024