Terms & Conditions

canibuild Software Service Terms of Use

These terms of use are entered into between canibuild Au Pty Ltd ACN 642 715 428 (we, us, our and other similar expressions) and the Customer (you, your or other similar expressions).

Your use of and access to canibuild is subject to these terms of use. By clicking the “SignIn” button to access canibuild, you indicate that you agree to these terms of use.

1. Definitions and interpretation

1.1. In these terms of use, the following definitions apply:

Additional Services means any service provided to you in addition to your access to and use of canibuild, including any consulting services or training.

Administrator means a natural person who is authorised by you to access and use canibuild under your customer account and who is nominated by you as an Authorised User with manager access during your registration for a Subscription or otherwise during your Subscription. The number of Administrators you are entitled to appoint may vary between Subscription options.

Authorised User means a natural person invited by us or an Administrator to access and use canibuild under your customer account. The number of Authorised Users you are entitled to appoint may vary between Subscription options.

CanIBuild means the software platform referred to as ‘canibuild’ which collects and processes the Customer Supplied Data and the canibuild Data to provide Outputs used for the planning, architecture engineering and construction industries.

CanIBuild Data means:

(a) the raw data which is input into CanIBuild by us or by third party service providers (but excluding the Customer Supplied Data); and

(b) Outputs.

canibuild Widget means the limited version of canibuild available in a widget form which is embedded directly into your webpage or other host software.

Confidential Information of a party is information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organisational structure, financial position, personnel, policies and business strategies.

Content means all content available on or accessible from canibuild and includes the canibuild Data.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the party whose details have been entered as the ‘user’ during the registration process for canibuild and, if that party is a company, then any parent company of that party and each subsidiary of that party (being an entity in which the party holds at least 50% of the ordinary shares) as may be notified by the party to us, and only for so long as the parent company or subsidiary remains a parent company or subsidiary of the party.

Customer Supplied Data means any data or information, excluding the canibuild Data, which you input into CanIBuild through your account or otherwise provide to us to input into canibuild (including any adjustments to that data or information that we are required to undertake before that data or information can be input into canibuild).

Device means any hardware used to access canibuild.

Fair Use Policy means our fair use policy located here: [Annexure A].
Force Majeure means any event or circumstance beyond the reasonable control of a party.

GST has the meaning given to that term in the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Indirect Loss means any one or more of the following:

(c) economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and

(d) any special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.

In-App Purchases has the meaning given to that term in clause 8.1.

Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, designs, trade secrets, know-how, confidential information and circuit layouts.

Month has the meaning given to that term in clause 11.2(a).

Output means information, data, graphics and any other material generated by canibuild after receiving and processing the canibuild Data and the Customer Supplied Data.

Personal Information has the meaning given to that term in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Purpose means for planning, design and building purposes including the purposes set out at https://canibuild.com/features/.

Stay means a stay on enforcing rights against a party which arises under the Corporations Act if:

(a) an administrator or a receiver, receiver and manager, judicial manager, liquidator, administrator, controller or like official is appointed to the party or to the whole or a substantial part of the undertaking or property of the party, including any of its assets; or

(b) it enters into, or takes steps or proposes to enter into, an arrangement, compromise or composition with its creditors or a class of them, or an assignment for the benefit of its creditors or a class of them.

Subscription has the meaning given to that term in clause 6.1.

Subscription Fees means the service fee payable by you for the Subscription you choose.

1.2. In these terms of use, unless the context otherwise requires:

(a) words denoting any gender include all genders;
(b) headings are for convenience only and do not affect interpretation;
(c) the singular includes the plural and vice versa;
(d) any schedule or annexure attached to these terms of use forms part of them;
(e) a reference to a party includes its legal personal representatives, successors and permitted assigns;
(f) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(g) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and
(i) a reference to these terms of use means this document and includes any variation or replacement of this document.

2. Acceptance of these terms of use

2.1. These terms of use apply to your use of and access to canibuild from the date you first accept these terms of use and continue until terminated in accordance with clause 25. Before you use canibuild, it is important that you read, understand, and agree to these terms of use.

2.2. You must not use canibuild if you are not of a legal age or capacity to form a binding contract with us.

3. Right to use CanIBuild

3.1. Subject to our acceptance of your online registration, for provision of canibuild and your payment of the relevant Subscription Fees, we grant you a limited, non-exclusive, non-transferable, revocable right to access and use CanIBuild for the Purpose on the terms set out in these terms of use and our online registration form.

4. Access Credentials

4.1. We will provide each Administrator with a username and password, which will enable that Administrator to access and use canibuild on your behalf. Each Administrator must select his or her own username and password at the time of first use of canibuild. You can add, remove or replace Administrators through your account with canibuild.

4.2. canibuild allows each Administrator to invite other persons (i.e. an Authorised User) to access and use canibuild under your customer account. An Authorised User must be your employee or contractor.

4.3. An Administrator inviting another person to use your customer account will constitute authorisation of that other person by you to use your account. A username, linked to your account, will be created for each new or additional Authorised User and provided directly to each Authorised User. Each Authorised User must select his or her own username and password at the time of first use of canibuild.

4.4. You must:

(a) ensure that each Administrator and Authorised User keeps his or her username and password confidential and does not disclose it to any other person (and in order to improve the security of their account, amends his or her password from time to time);
(b) ensure that you can identify and manage each Authorised User entrusted with a username and password combination for your customer account;
(c) refrain from authorising anyone to use your customer account who is not either employed by you or under contract with you to perform functions similar to those commonly performed by employees;
(d) notify us of the names of each Authorised User if requested by us; and
(e) immediately notify us of any unauthorised use of your password or account or any other breach of security.

4.5. You are responsible for:

(a) authorising any person who is given access to canibuild using your customer account and to the Customer Supplied Data and canibuild Data;
(b) all activities that occur under your account, including all fees and charges in connection with that use; and
(c) providing, installing and maintaining at your own expense, including data charges associated with your use of Devices, all equipment and facilities necessary to enable you to use canibuild.

 

4.6. You agree that we have no obligation to provide any person access to CanIBuild through your customer account or to the CanIBuild Data without your authorisation.

5. Your use of canibuild

5.1. You must ensure that your access and use of canibuild is not illegal or prohibited by laws that apply to you.

5.2. You must not, nor cause or permit a third party to:

(a) breach our Fair Use Policy;
(b) use CanIBuild in a manner or for a purpose which is improper, immoral or fraudulent, which infringes any person’s Intellectual Property Rights, or which restricts or interferes with our provision of canibuild to any other customers or users;
(c) reverse engineer, reverse assemble or reverse compile or copy or duplicate or modify or make derivative works of or re-sell all or part of canibuild (or any of our Intellectual Property Rights in canibuild);
(d) enter into any transaction relating to:

(i) access or use of canibuild;
(ii) any part of your customer account information or access credentials; or
(iii) any of our Intellectual Property Rights in canibuild,

with anyone other than us, without our written consent;

(e) gain or attempt to gain unauthorised access to canibuild, computer systems or networks connected to canibuild, including through hacking, password mining or any other means; or
(f) use data mining, robots, screen scraping or similar data gathering and extraction tools on canibuild for establishing, maintaining, advancing or reproducing information contained in canibuild, on your own website or in any other publication, or for your own personal use or benefit (other than as expressly set out in these terms of use), except with our prior written consent.

5.3. You indemnify, and will defend and hold us and our affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents, harmless in relation to any loss, claim or damage in connection with any claim by a third party related to the canibuild Data, your Customer Supplied Data, or any of your users’ use of canibuild where such use is not authorised by these terms of use.

6. Subscription

6.1. There are different subscription plans for canibuild, with different inclusions and pricing, details of which are available at https://canibuild.com/pricing/. At your request, we may customise your subscription plan to best cater for your specific business requirements.

6.2. Among other features, your subscription plan will entitle you to a specific number of ‘address lookups’ per Month. This number is based on the number of searches of distinct addresses. Therefore, provided that you comply with our Fair Use Policy, you may search a distinct address multiple times in one Month without each additional search of that address counting towards the Month’s allocated number of ‘address lookups’. However, a search for that same address in the following Month will count as one ‘address lookup’ in that following Month.

6.3. If you require any further customisation of canibuild for your specific needs, you may request us to provide Additional Services in accordance with clause 10.

7. Data

7.1. Subject to clauses 7.6 and 7.8, the Customer Supplied Data and any Outputs generated, belong to you.

7.2. You are responsible for any Customer Supplied Data and where any Customer Supplied Data includes any Personal Information, you must ensure that processing of any Customer Supplied Data conducted according to your instructions will not place us in breach of any laws (including applicable data protection or privacy laws).

7.3. You warrant that:

(a) you have obtained all consents necessary to collect, store, disclose, use and transfer any Customer Supplied Data, including any Personal Information included in it;
(b) the Customer Supplied Data will:

(i) not violate or infringe the rights (including Intellectual Property Rights) of any other person;
(ii) not contain a virus or other harmful component; and
(iii) comply with any guidelines we notify to you from time to time on this website.

7.4. You are responsible for and must adopt reasonable measures to limit your exposure to the potential loss and damage of the canibuild Data and Customer Supplied Data, including downloading and backing up your CanIBuild Data and Customer Supplied Data. We expressly exclude liability for any loss of canibuild Data and Customer Supplied Data no matter how caused.

7.5. You acknowledge that canibuild is dependent on the quality and amount of Customer Supplied Data and may not function properly or provide Outputs if the Customer Supplied Data is not of a quality or condition suitable for processing based on our applicable standards, specifications and procedures or is otherwise not in the format we require.

7.6. You acknowledge that we may use the data and information derived from the canibuild Data and Customer Supplied Data to produce a compilation of aggregated data and information for use in enhancing the functionality of canibuild. We will ensure that any Personal Information disclosed by you to us cannot be ascertained from the aggregated data and information.

7.7. You agree that we may, at our sole discretion, disclose, transfer and store the canibuild Data and Customer Supplied Data, including Personal Information, to or with our third-party service providers and affiliates outside Australia for the purpose of providing CanIBuild or any part of it. The jurisdictions in which those data transfers may occur are included in our Privacy Policy available at https://canibuild.com/privacy-policy/ . You consent to us providing Personal Information to those third-party service providers and affiliates in those jurisdictions and (before submitting any Customer Supplied Data to us) are solely responsible for ensuring that any disclosure, transfer or storage of Customer Supplied Data, including Personal Information, across a country border under these terms of use complies with applicable data protection and privacy laws, including the Privacy Act.

8. In-App purchases

8.1. You may purchase products from third parties through canibuild (In-App Purchases). While we help facilitate these In-App Purchases we are neither the buyer nor the seller of the third-party products available for purchase (Third-Party Products). Accordingly, the contract formed at the completion of an In-App Purchase is solely between you and that seller from whom you have acquired the Third-Party Product. We are not a party to this contract nor assume any responsibility arising out of or in connection with it and we only act as agent for the seller to the extent that we process payments for In-App Purchases, not in any other capacity. The seller from whom you acquire the Third-Party Product is responsible for the In-App Purchase and any claims or issues that you may have arising out of or in connection with that In-App Purchase.

9. Additional services

9.1. You may ask us to provide Additional Services to you. If we agree to provide Additional Services to you, we may charge you for providing the Additional Services at our prevailing rates for those services as notified by us to you.

9.2. If we allow you to:

(a) sell your own products to; and/or
(b) add margins to third party products that are available to be purchased by,
your customers through CanIBuild, then you hereby agree to our Merchant Terms and Conditions, located here [].

9.3. If you subscribe to use the canibuild Widget, then you hereby agree to the terms applying to the use of the CanIBuild Widget, located here [].

10. Viruses

10.1. You must take your own precautions to ensure that the process which you use for accessing canibuild does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.

10.2. We do not accept responsibility for any interference or damage to your own Device or computer system which arises in connection with your use of canibuild or any linked website or service.

11. Service Availability

11.1. While we intend to use reasonable endeavors to make canibuild available for your use on a 24 hour a day, seven days a week basis, you expressly acknowledge and agrees that service continuity is not assured and that canibuild is provided on an ‘as is’ basis. In particular, you agree that on occasions canibuild may be unavailable or have limited availability including:

(a) to permit routine or emergency maintenance to take place;
(b) to permit upgrades or other development activity to take place;
(c) due to technical malfunctions of Customer’s software, equipment or infrastructure (e.g. telecommunications connectivity, network congestion or delays);
(d) due to a Force Majeure event; or
(e) due to clause 9.3.

11.2. In the case of technical problems which adversely affect your use of canibuild, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, you must notify us promptly via email to support@canibuild.com.

11.3. We may temporarily limit or suspend the availability of all or part of canibuild if it is necessary for reasons of public safety, security or maintenance of canibuild, interoperability of services, data protection or to perform work that is necessary for operational or technical reasons.

12. Fees and payment

12.1. You agree to pay us the Subscription Fees for the Subscription you choose.

12.2. If your Subscription is a monthly subscription:

(a) we will send you an invoice at the start of (1) each calendar month or (2) each 30-day period, or (3) some other recurring interval disclosed to you prior to your purchase, for your access to canibuild the month (together, Month); and
(b) the Subscription Fees for the Subscription you choose will be billed from your account at the beginning of the Month, through a third-party payment platform, unless otherwise agreed in writing.

12.3. If your Subscription is a yearly subscription:

(a) we will send you an invoice at the start of (1) each calendar year, or (2) each 12-month period, or (3) some other recurring interval disclosed to you prior to your purchase, for your access to canibuild for the year (together, Year), and
(b) the Subscription Fees for the Subscription you choose will be billed from your account at the beginning of the Year, through a third-party payment platform, unless otherwise agreed in writing.

12.4. Subject to clause 28.3, we may change the Subscription Fees or the costs for any In-App Purchases by giving you 30 days’ notice of the change.

13. Failure to pay

13.1. If you fail to pay any amount due under these terms of use by the due date, then:

(a) all money owing to us by you becomes immediately payable;
(b) we may suspend your access to canibuild and may charge a reactivation fee to reactivate your customer account; and
(c) you must pay all reasonable expenses incurred by us in enforcing these terms of use, including all expenses of any legal proceeding and all reasonable legal fees incurred in connection with any such action.

14. GST and taxes

14.1. You must reimburse us for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under these terms of use, excluding, however, income taxes on profits which may be levied against us.

14.2. Without limiting clause 13.1, all consideration provided for any taxable supply under these terms of use is exclusive of GST unless the contrary is clear. If GST is payable on the services we provide you, the amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply. The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due.

14.3. If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under these terms of use:

(a) a corresponding adjustment must be made;
(b) adjustment notes must be issued; and
(c) any payment must be made,

between the parties as may be necessary to give effect to the adjustment.

15. Intellectual Property Rights

15.1. Except for the limited license to access and use canibuild under clause 3, all ideas, concepts, know-how, data processing techniques, data compilations, software, documentation, trademarks, trade secrets, copyright and inventions and other Intellectual Property Rights comprised in or in connection with CanIBuild (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) are owned by us or our licensors. You agree that no transfer of our (or our licensors’) Intellectual Property Rights occurs at any time by access and use by your (or your users’) use of canibuild.

15.2. You do not own or use and must not claim any right or title to own or use, the Intellectual Property Rights in canibuild, except to the extent such use is permitted under these terms of use. You must not dispute or challenge our (or our licensors’) entitlement to own, use or license the Intellectual Property Rights in canibuild (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) or join any third parties to challenge or contest the validity of those Intellectual Property Rights.

15.3. You agree to notify us promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights in canibuild and reasonably co-operate with us in relation to such infringement.

16. Confidentiality

16.1. Each party must not without the written consent of the other:

(a) use any Confidential Information of the other party, except in performing its obligations under these terms of use; or
(b) disclose any Confidential Information of the other party to any person except to its approved employees, officers, directors and other representatives, who need to review the Confidential information in connection with performance under these terms of use, and then only to those who need to know the same and who agree to be bound by similar obligations of confidentiality. Despite the foregoing, we may disclose certain Confidential Information of yours to our third party suppliers, subject to the obligation of confidentiality, as necessary to (i) provide you with canibuild or obtain support for canibuild, (ii) obtain information specifically requested by you, (iii) perform back-office functions or administrative services, or (iv) as necessary to comply with legal and/or accounting requirements.

16.2. Clause 15.1 does not apply where:

(a) disclosure is required by law or required to respond to requests by a regulatory or judicial body;
(b) the Confidential Information is in the public domain through no fault or action of the recipient, its employees or subcontractors; and
(c) the Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.

16.3. These obligations of confidentiality survive termination of these terms of use.

17. Privacy

17.1. Each party must comply with the Privacy Act (if applicable) and any other applicable laws and codes dealing with privacy.

17.2. We will comply with the terms of our Privacy Policy which may be accessed here: https://canibuild.com/privacy-policy/ .

17.3. Each party warrants to the other that:

(a) any Personal Information that it discloses to the other under these terms of use, or when using the Service, has been collected in accordance with the Privacy Act (if applicable);
(b) the individual to whom the information relates has been made aware of the recipient’s identity, of how to contact the recipient, and of the other matters of which the recipient is required to inform a person about whom it collects information under the Privacy Act (if applicable); and
(c) the other is authorised to collect the information for the disclosure and use the information for the purposes of these terms of use.

18. Indemnity

18.1. You agree to hold harmless and indemnify us and our officers, agents and employees against any loss, damage, costs or expenses that we, or any of our officers, agents and employees, may incur in connection with your breach of these terms of use or any other legal obligation, your use of canibuild or any use of canibuild using an account registered in your name.

18.2. Each indemnity in these terms:

(a) is a continuing obligation, separate and independent from the other obligations of the parties;
(b) will not be affected by any matter including without limitation, the termination, renewal or extension of these terms of use or any indulgence, waiver or other concession given by us unless we agree in writing; and
(c) includes legal costs and disbursements on a full indemnity basis.

18.3. It is not necessary for us to incur expense or to make any payment before enforcing the right of indemnity conferred by this clause.

18.4. You must pay on demand any amount you must pay under the indemnity in this clause.

19. Force Majeure

19.1. You acknowledge that making CanIBuild available for access is dependent on a number of factors outside our control, including for example, the telecommunication connections and infrastructure.

19.2. Except for any payment obligations, neither party is liable for any delay or failure to perform any of its obligations under these terms of use to the extent that the delay or failure is caused by reason of Force Majeure.

20. Accuracy of Content

20.1. All Content is provided by us or by others in good faith. You accept that the Content provided by us is general information and is not advice. We have derived the Content from sources which we believe to be accurate and up-to-date as at the date of publication.

20.2. We make no representation about the accuracy, completeness or usefulness of the Content or its fitness for any particular purposes, nor do we undertake to keep canibuild or its Content up-to-date. This applies to Content provided by us and to Content provided by others.

20.3. You must evaluate, and bear all risks associated with the use of Content, whether provided by us or by others, including your reliance on the accuracy, completeness or usefulness of it. By using canibuild, you agree that neither we nor our officers, employees and agents are responsible for:

(a) the accuracy of the content displayed on or omitted from canibuild;
(b) any person’s reliance on content available on or omitted from canibuild; or
(c) any loss in connection with the use of canibuild.

20.4. You should make your own enquiries and seek independent advice from relevant industry professionals before acting or relying on any Content, whether provided by us or by others.

21. Linked sites

21.1. CanIBuild may link to other websites or software services over which we have no control (Third-Party Sites). Those links are provided for convenience only and may not remain current or be maintained.

21.2. We are not responsible for any activity that occurs on a Third-Party Site including but not limited to the purchase of any items through that Third-Party Site.

21.3. We do not sponsor, endorse, adopt, confirm, guarantee or approve the content or representations made on those Third-Party Sites. We are not liable for, and make no representations about the accuracy of, content on those Third-Party Sites.

22. Warranties

22.1. Each party represents and warrants to the other that:

(a) it has the power and authority to enter into and perform its obligations under these terms of use;
(b) it has taken all necessary steps, including any corporate action necessary if it is a corporation, to authorise its entry into and performance of all of its obligations under these terms of use and to carry out the transactions contemplated by these terms of use.

23. Disclaimer

23.1. We make no representation or warranty:

(a) that your use of CanIBuild or any Outputs will be error-free, uninterrupted or compatible with your equipment, devices and software configurations;
(b) that canibuild or any Outputs will be fit for your purposes; or
(c) that your use of canibuild or any Outputs will improve the performance or profitability of your business or any other party.

23.2. You agree that:

(a) the provision of, access to, and use of, canibuild or any Outputs is on an “as is” basis and at your own risk;
(b) among other things, the operation and availability of the systems used for accessing canibuild, including telecommunication services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to canibuild. We are not in any way responsible for any interference or prevention of your access or use of canibuild caused by these types of things;
(c) it is your sole responsibility to determine that canibuild or any Outputs meets the needs of your business and is suitable for the purposes for which it is used; and
(d) you remain solely responsible for complying with all applicable laws in connection with your access and use of canibuild or any Outputs.

24. Limitation of liability

24.1. Nothing in these terms of use is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.

24.2. You agree that you do not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by us or on our behalf which is not expressly stated in these terms of use.

24.3. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to these terms of use and we are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election):

(a) in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and
(b) in the case of services, the supplying of the services again (or the payment of the cost of doing so).

24.4. Subject to our obligations under the Non-Excludable Provisions:

(a) our maximum aggregate liability to you in respect of any one claim or series of connected claims in connection with these terms of use or your use of this website or CanIBuild, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise during each calendar month while you have access to CanIBuild is limited to the minimum Subscription Fees payable by you to us in respect of that calendar month; and
(b) we are not liable to you or any third party for any Indirect Loss arising in connection with any use or access, or any inability to use or access, or misuse by you or any other party, of the or canibuild or any Outputs or otherwise in connection with them, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee, under an indemnity or otherwise and whether or not that loss was foreseeable, even if we have been advised of the possibility of such loss.

24.5. The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that:

(a) such loss or damage has been caused by the other party’s failure to comply with its obligations and responsibilities under these terms of use; or
(b) the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party.

25. Suspension

25.1. We may without notice suspend your access to canibuild if:

(a) you (or your Administrators or any of your Authorised Users) breach these terms of use; or
(b) we reasonably believe that your access and use of canibuild will cause technical incapacity to canibuild which will continue unless access or use is suspended.

25.2. We will act promptly to restore access when it is satisfied that the reason for suspension has been removed.

25.3. If within 30 days of suspension under clause 24.1 we are not reasonably satisfied that the reason for suspension has been removed, we may terminate your subscription to canibuild upon written notice.

26. Termination

26.1. In addition and without prejudice to any other rights or remedies, either party may terminate these terms of use as follows:

(a) by giving the other party written notice of termination; or
(b) immediately upon giving written notice to the other party, if the other party becomes or threatens to become subject to any form of insolvency administration and that insolvency administration:

(i) does not give rise to a Stay; or
(ii) gives rise to a Stay, but a court makes an order to lift that Stay.

27. Effects of termination

27.1. On termination of these terms of use for any reason, you must:

(a) immediately cease accessing and using canibuild; and
(b) immediately pay any and all outstanding invoices or any charges or fees incurred as a result of your access and use of CanIBuild before the date of termination.

27.2. Subject to clause 27.1(b), if you have paid for a yearly Subscription and these terms of use are terminated before that Year has expired in full, then provided that you have not been in breach of these terms of use, we will reimburse the portion of your Subscription Fees that represents the portion of the Year that is terminated less a termination fee of an amount equal to the Subscription Fee payable:

(a) for a Month, and
(b) the balance paid in the Month of termination,

being a reasonable estimate of canibuild’s costs of termination. Termination of these terms of use does not affect any accrued rights or liabilities of any party under these terms of use nor does it affect any provision of these terms of use which is expressly or by implication intended to operate after termination.

28. Notices

28.1. Notices given under these terms of use must be in writing and delivered to a party by hand or by email to that party’s address shown below or to an alternate address notified to the party giving the notice. Your address for delivery of a notice is the address notified to us when you register to use CanIBuild. Our address for delivery of a notice is:

CanIBuild Au Pty Ltd
Suite A31e, 24-32 Lexington Drive
Bella Vista NSW 2153
Email: support@canibuild.com

28.2. A notice is taken to be duly given and received:

(a) if delivered by hand, when delivered; or
(b) if delivered by email, within 2 hours of sending, unless the sending party receives a delivery failure notice from their ISP or the recipient’s systems.

29. Variations

29.1. We may amend or update these terms of use from time to time.

29.2. If any change to these terms of use will significantly affect the provision of canibuild we will give you at least 30 days’ notice of the change by email.

29.3. If you do not agree to any change to these terms of use, you can terminate your subscription to canibuild by giving us at least 14 days’ written notice.

29.4. You agree:

(a) to periodically check our website to ensure that you understand the requirements of the current terms of use; and
(b) that your continued use of canibuild will represent an agreement by you to be bound by the terms of use as amended.

30. General

30.1. These terms of use together with your online registration constitute the entire understanding between the parties and supersedes all previous and contemporaneous communications, representations, or agreements with respect to your access and use of canibuild.

30.2. No failure or delay of either party in exercising any right, power, or privilege under these terms of use (and no course of dealing between the parties) operates as a waiver of any such right, power of privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power or privilege.

30.3. If any provision of these terms of use is held to be unenforceable, the parties agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision.

30.4. If any one or more of the provisions of these terms of use are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these terms of use will be unimpaired and will remain in full force and effect.

30.5. Each party must do everything reasonably required by the other to give full effect to these terms of use.

30.6. These terms of use and all matters regarding the interpretation and/or enforcement of these terms of use, are governed exclusively by the laws in force in the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

Annexure A
FAIR USE POLICY
General

1. It is important to canibuild that all customers can access canibuild app. Hence, we have framed a Fair Use Policy that applies to the data usage of canibuild platform (app.canibuild.com).

2. In this Fair Use Policy

a. Excessive Use mean – a continuing and unreasonably disproportionate use of the Products and Services when compared to other average individual named users
b. canibuild, we, us, or our means Canibuild Au Pty Ltd.
c. canibuild app, canibuild platform means “app.canibuild.com”.
d. Products and services mean access to canibuild app
e. You or Your means any customer of canibuild.
f. Your Agreement means your agreement to the “Terms of Service” as explained in “https://canibuild.com/terms-and-conditions” and/or any custom/enterprise agreement signed with canibuild
g. Unreasonable Use has the meaning given to that term in section 5 and 6 of this Policy.

3. We reserve the right to vary the terms of this Fair Use Policy

4. This Fair Use Policy is in addition to “Your Agreement” and in the event of any inconsistency between the terms of this Fair Use Policy and the terms and conditions of “Your Agreement” prevails.

Unreasonable Use

5. We consider Your use of the canibuild app unreasonable where You use it in a manner which is reasonably considered by canibuild to be fraudulent use, to be contrary to “Your Agreement” or to adversely affect other customers’ use of or access to the Products and Services.

6. Among other things, “fraudulent use” includes resupply of the Products and Services without canibuild’ s consent so that someone else may access or use the Products and Services or take advantage of the Products and Services.

canibuild’ s Rights

7. Where Your use of the canibuild app (app.canibuild.com) constitutes Unreasonable Use and/or Excessive Use, canibuild may contact You to discuss changing Your usage pattern so that it conforms with this Fair Use Policy, or to upgrade to a more suitable subscription plan (if applicable).

8. If, after canibuild has contacted You, Your Unreasonable Use and/or Excessive Use continues, canibuild may, without further notice to You:

a. restrict Your access to canibuild app for the remainder of the month; and/or
b. restrict Your access to canibuild app until Your quota of address lookups is reset at the beginning of the next monthly billing cycle (if applicable); and/or
c. immediately cease Your access to canibuild app; and/or
d. exercise any other right available to canibuild under the terms of “Your Agreement”.