TERMS AND CONDITIONS – QUOTEC LIVE & QUOTEC NOW

[Last updated March 2022]

1. INTRODUCTION

1.1 These terms and conditions of use (Terms) govern the agreement between you the user of the Services (User) and Quotec Systems Pty Ltd ACN 135 753 552 (Quotec).

1.2 By subscribing to the Services, the User acknowledges and agrees that it has had a sufficient chance to read and understand these Terms and agrees to be bound by them.

1.3 This Agreement commences on the Commencement Date.

2. SUBSCRIPTION SERVICES – QUOTEC LIVE AND QUOTEC NOW

2.1 Quotec will provide the Services to the User for the Term subject to these Terms and the policies and guidelines of Quotec published from time to time.

2.2 The provision of Services by Quotec will depend on the Subscription Level chosen by the User:

2.2.1 the Subscription Levels are as set by Quotec from time to time and advised to the User;

2.2.2 each Subscription Level may contain a variety of different features or uses;

2.2.3 Quotec reserves the right to vary the features of a Subscription Level in accordance with these Terms;

2.2.4 a User may change its Subscription Level with the consent of Quotec provided the User pays the appropriate fee for that Subscription Level and any variation fee that may be applicable. The Subscription Level may also be changed as set out in this Agreement.

2.3 A User agrees to promptly provide Quotec with the following (as may be reasonably requested by Quotec) to enable Quotec to perform the Services:

2.3.1 access to and authorisation to use all and any data, information, material and content as reasonably required by Quotec;

2.3.2 authority to communicate with the User’s third-party suppliers (if required); and

2.3.3 such other information, authorisation and items as may be reasonably requested by Quotec.

2.4 Where the User provides Quotec with information, the User agrees and warrants that any and all information supplied by the User is true, accurate, current and complete and the User either owns or has right to supply the information supplied.

2.5 The User acknowledges that failure to promptly provide the above may restrict Quotec's ability to provide the Services in accordance with these Terms. Quotec will not be liable in any respect where any failure to provide the Services is due to a delay of the User (or a third party) to provide the required information or the User (or a third party) providing incorrect or inaccurate information.

2.6 The User further agrees to cooperate with, act reasonably and follow the reasonable directions of Quotec in connection with the use of the Software and this Agreement.

3. FEES

3.1 During the Term, the User will pay the following (as may be applicable):

3.1.1 the Subscription Fee (for the agreed Subscription Level) in accordance with Quotec's current payment requirements for the Subscription Fee;

3.1.2 Any property address look-up fee in excess of the quota set by Quotec from time to time (as at the date of these Terms the quota is 100 per calendar month); and

3.1.3 Any other fees for Additional Services (see clause 8 below).

3.2 Quotec may increase the Fee in the following circumstances:

3.2.1 where there has been a change in the Subscription Level or type at the request of the User;

3.2.2 annually by a maximum amount of five percent (5%) to reflect any increases in costs of offering the Services. The User will be notified in writing of any increase to the Fee.

3.3 If Quotec has not received any payment required in accordance with these Terms, in addition to any other rights and remedies of Quotec, Quotec may without liability to the User:

3.3.1 suspend the provision of the Services to the User while any payment due and owing to Quotec remains outstanding;

3.3.2 disable the User’s access to all or part of the Services and Quotec will be under no obligation to provide any or all of the Services while any payment due and owing to Quotec remains outstanding.

v 3.4 Where there has been a failure to pay pursuant to the terms of this Agreement, Quotec is under no obligation to commence, recommence or reinstate the Services even if requested by the User. Any commencement, recommencement or reinstatement will be at Quotec's sole discretion (acting reasonably).

3.5 The User agrees that in the event of any action being taken by Quotec to recover any overdue amount due and owing by the User pursuant to these Terms, any costs incurred by Quotec in recovering the debt (including without limitation any legal expenses on a solicitor/client basis, collection agency charges (if permissible by law) or any other reasonable associated costs) are payable by the User to Quotec and shall be recoverable by Quotec as a separate debt.

3.6 On termination of this Agreement, all outstanding Fees will become payable by the User to Quotec.

3.7 All amounts and fees stated or referred to in this Agreement:

3.7.1 are exclusive of GST;

3.7.2 will be in Australian dollars; and

3.7.3 are (subject to the terms of this Agreement) non-refundable.

3.8 If there is a debt or other moneys due from the User to Quotec or Quotec has a claim to money against the User whether for damages or otherwise, arising out of or in any way in connection with this Agreement or on any other legal or equitable basis, then Quotec may withhold, deduct or set-off the debt or other moneys due or claim against any sum which the User is or may be entitled to arising out of or in any way in connection with this Agreement. Nothing in this clause affects or restricts the right of Quotec to recover from the User the whole of the debt or claim or any balance that may remain owing.

4. THE SERVICES

4.1 Subject to the User’s Subscription Level and this Agreement, Quotec will provide the Services for the Term.

4.2 The User acknowledges and agrees that Quotec, at all times retains all right and title to all the data, materials and content contained within the Software, excluding any User Data.

4.2.1 The User is granted a non-exclusive, revokable license for the period of this Agreement to access the Software in accordance with the User’s chosen Subscription Level and such license is personal to the User, cannot be transferred and is limited by the terms of this Agreement.

4.2.2 The User is not authorised to copy or reproduce the Software in any way without the prior written consent of Quotec.

4.2.3 Quotec will not be responsible in any respect for any action or inaction of the User based on the User’s analysis or interpretation of the Software or the results produced from the Software.

4.3 The User must not add to, remove or vary any of the Software unless permitted by Quotec.

4.4 The User acknowledges and agrees that Quotec is not responsible in any respect for any User Data provided by or for the User in its use of the Software.

4.5 The User is responsible for maintaining (and updating) the accuracy of any User Data on the Software.

4.6 Quotec acknowledges and agrees that the User at all times retains all right and title to the User Data.

4.6.1 Quotec does not, unless required as part of the relevant Subscription Level or provision of Services, analyse or interpret the User Data for and on behalf of the User.

4.6.2 The User irrevocably grants Quotec a perpetual, world-wide, non-exclusive, royalty free and transferable license to use the User Data for the purpose of enabling the User access to the Software.

4.6.3 Quotec will not be responsible in any respect for any action or inaction of the User based on the User’s analysis or interpretation of the User Data.

4.7 The User acknowledges and agrees that:

4.7.1 upon Quotec consenting to any grant of access by the User to the Software, the User will be issued, within a reasonable period of time of such grant, a username and password providing the User access to the relevant Services;

4.7.2 the User is responsible for ensuring the security of the User’s computer and devices and maintaining the confidentiality of any issued username and password;

4.7.3 the User must notify Quotec immediately if the User becomes aware of any unauthorised use of the User’s issued username and/or password;

4.7.4 the User’s use of the Software is the User’s responsibility and is entirely at the User’s own risk and the User accepts full responsibility for all and any information that the User transmits via the User’s access to the Software. For example, if the User or a User Customer design a shed and order the components only to find the shed will not fit where intended, or is not allowed by the local council, that is the User or User Customer’s responsibility, not Quotec’s;

4.7.5 the User will educate its employees on the correct use of the Software;

4.7.6 the User must not use the Software in a way that breaches this Agreement or any laws, regulations, standards or codes as enacted or modified from time to time;

4.7.7 the User must not use, reproduce, sell, resell or otherwise exploit any of the Software or any part of it for commercial purposes other than in accordance with these Terms;

4.7.8 the User must not modify, copy, adapt, distribute, translate or create derivative works of any kind whatsoever of any of the Software or any of the Services;

4.7.9 Quotec retains complete editorial control over the Software and may change, modify, alter, amend, delete any of the Software (or any component or feature of the Software) or cease the operation of the Software at any time in its sole discretion;

4.7.10 the Software will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes);

4.7.11 neither the Software and/or the Services will be error free and Quotec does not guarantee that the Software and/or the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Software and/or the Services; and

4.7.12 The User is responsible for acquiring and maintaining all equipment, services and software (whether through third parties or otherwise) necessary to access the Software. The User is responsible for all telecommunication fees or charges incurred as a result of connecting to the Software.

4.8 Where the User or User Customer is acquiring the Product through Quotec or its related entity, the User agrees that all goods required to produce a completed product ordered by a User or a User Customer through the Platform or Portal must be ordered at the same time and cannot be ordered through different suppliers or in different stages or by part order.

4.9 Quotec consents to the User applying any reasonable price markup to the design, cost and order of goods through the Platform or the Portal.

4.10 The User acknowledges that it has reviewed the terms of Quotec’s Privacy Policy and Disclaimer as set out in its website as amended from time to time.

4.11 The User grants to Quotec permission to publicise that the User is a user of Quotec.

5. QUOTEC NOW

If the User has a Subscription to Quotec Now, the following provisions apply in addition:

5.1 The User consents to the inclusion of the Portal on the User’s existing retail website as an add-on feature to the Platform.

5.2 The User acknowledges that Quotec will be responsible for the initial installation of the Portal on the User’s existing retail website.

5.3 The User warrants that its existing retail website meets the following minimum set up requirements:

5.3.1 website is accessible via the hosting account or through a website editor;

5.3.2 website software is up-to-date and will remain up to date;

5.3.3 website is mobile friendly;

5.3.4 an SSL Certificate is installed and up-to-date, and will remain up to date; and

5.3.5 such other specifications that may be advised by Quotec to the User from time to time.

5.4 The User agrees to provide Quotec access to the User’s existing website, the User’s content management platform and any other program or system of the User as reasonably required by Quotec to provide the Portal.

5.5 Notwithstanding that Quotec at all times retains all right and title to all the data, materials and content comprising the Software, Quotec grants to the User a limited rights to white label the Portal in accordance with the provisions of this clause 5.

5.6 Quotec grants to the User a non-exclusive revocable licence for the Term of this Agreement to use the Portal in a white labelled format as follows:

5.6.1 The Portal may be customised with the User’s branding features as approved by Quotec (Rebranded Portal).

5.6.2 Branding features included trade names, trademarks, logos or other distinct features of the User approved by Quotec (Branding Features).

5.6.3 Quotec will integrate the Portal with the Platform only.

5.6.4 The User is not authorised to incorporate any Branding Features into any of the Software other than as permitted by Software or without the prior consent of Quotec.

5.6.5 The User warrants that its owns or has the right to use the Branding Features.

5.6.6 Quotec does not acquire any rights to the User’s intellectual property in any of the Branding Features.

5.6.7 Other than the Branding Features, the User agrees that it will not represent the Portal and Platform as being owned by the User’s.

5.6.8 On termination of the Agreement, access to the Portal will be removed by Quotec.

5.7 The User must:

5.7.1 include its own terms and conditions for the use of Rebranded Portal by a User Customer;

5.7.2 ensure its Customer User agree to terms and conditions for the use of the Rebranded Portal;

5.7.3 ensure that its terms and conditions do not conflict in any way with these Terms;

5.7.4 to the extent permitted by law, ensure that the User and Customer User acquire all products quoted using the Rebranded Portal are acquired through Quotec or its related party and not through any third party supplier.

5.8 Where Quotec provides example supply terms and conditions for the User to use, Quotec provides these by way of example only and the User must obtain its own legal advice on such terms and conditions before use. The User indemnifies and holds Quotec harmless in respect of any use of any example terms and conditions provided by Quotec to the User.

6. USER OBLIGATIONS

6.1 The User will ensure that at all times there is a User Representative who:

6.1.1 may exercise all of the powers of the User under this Agreement; and

6.1.2 may by notice in writing to Quotec, delegate any of the User Representative's powers, except the power to delegate.

6.2 The User must name any person acting as its User Representative by notice in writing to Quotec. The appointment of the person named in the notice as the User Representative will be effective from the date that notice is given to Quotec.

6.3 The User must replace its User Representative if requested by Quotec, acting reasonably, to do so.

6.4 The User must not:

6.4.1 access, store, distribute through the Services any material, data or content that:

(a) Quotec deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically offensive or otherwise objectionable;

(b) constitutes, encourages or provide instructions for a criminal offence, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; and/or

(f) causes damage or injury to any person or property;

6.4.2 distribute or transmit through the Services any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and Quotec reserves the right, without liability, to disable the User’s access to the Services, with or without notice, should such occur.

6.5 The User will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services. The User will immediately notify Quotec in writing in the event of any such unauthorised access or use.

6.6 Except as permitted by law or under this Agreement, the User will not (nor grant any other person or entity the right to):

6.6.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means;

6.6.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;

6.6.3 access all or any part of the Services in order to build a product or service which competes with the Services;

6.6.4 use the Services to provide services to third parties without Quotec’s prior written consent;

6.6.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit or otherwise make the Services available to any third party;

6.6.6 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Agreement;

6.6.7 without the prior written consent of Quotec, be involved or interested, either directly or indirectly, in the development, manufacture, production, importation, sale or advertisement of any other platform, which is like or comparable to the Services or the Software in any manner which might compete, conflict or interfere in any way with the use of the Services or the Software;

6.6.8 independently publish data generated from the Services without consultation with and approval from Quotec; or

6.6.9 assign, sub-licence, transfer, charge or deal with, in any manner, any of its rights under this Agreement without the prior written consent of Quotec.

6.7 The User agrees that it will not:

6.7.1 use automated scripts to collect information from or otherwise interact with the Software and any Quotec application;

6.7.2 take any action that imposes or may impose an unreasonable or disproportionately large load on the Software, any Quotec application or the infrastructure of Quotec; or

6.7.3 impersonate any person or entity, or falsely state or otherwise misrepresent itself, its age or its affiliation with any person or entity.

6.8 The User agrees to observe and comply with all reasonable directions and instructions given by Quotec in relation to the Services.

6.9 The User agrees to abide any policy relevant to the Services that may be implemented by Quotec from time to time.

7. QUOTEC OBLIGATIONS

7.1 Notwithstanding any other term of this Agreement, Quotec does not guarantee the continuous availability of the Services. Quotec will use reasonable endeavours to provide a consistent availability of the Services. For the purpose of these Terms availability:

7.1.1 means the ability of the Services to perform their required functions;

7.1.2 will be determined by Quotec in its sole discretion; and

7.1.3 will not be measured with reference to any unavailability caused by any third-party.

7.2 Quotec will inform the User if the Services or any part of them is unavailable at any time due to maintenance, update or any other foreseeable factor or cause.

7.3 Quotec is not responsible for any delays, delivery failures, or any other loss or damage resulting from:

7.3.1 the acts or omissions of third party providers engaged by the User or otherwise; or

7.3.2 the failure of a User’s system or third party application not in control of Quotec;

7.3.3 the transfer of data over communications networks and facilities, including the internet, and the User acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities, systems and third party providers.

7.4 This Agreement shall not prevent Quotec from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

7.5 Quotec will obtain and maintain, with a reputable insurer, appropriate insurance relevant to the provision of the Services for the duration of this Agreement.

7.6 Quotec warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

8. SUPPORT AND ADDITIONAL SERVICES

8.1 During the Term, Quotec will, subject to the User’s Subscription Level, provide the following support services as part of the Services:

8.1.1 day to day operation of the Services;

8.1.2 reasonably requested configuration changes;

8.1.3 outage management; and

8.1.4 such other support as may be agreed between the parties.

8.2 Where the User requires Quotec to perform additional services (Additional Services), any Additional Services will be provided by Quotec:

8.2.1 as agreed between Quotec and the User in writing;

8.2.2 at Quotec’s current charge rates for the provision of such Additional Services; and

8.2.3 on the same terms and conditions as set out in this Agreement (as applicable) unless agreed otherwise.

8.3 Quotec may implement policies around support and service levels as may be appropriate to the Services from time to time.

9. THIRD PARTIES

9.1 The User acknowledges and agrees that the Services may:

9.1.1 contain or comprise applications owned and operated by third parties; or

9.1.2 be subject to the terms and conditions of use and operation of applications owned and operated by third parties.

9.2 Quotec is not responsible for the content, operation and/or reliability of any such applications and makes no representation as to the accuracy of any material contained in such applications.

9.3 Quotec, to the maximum extent possible, excludes liability for any loss suffered as a result of use of these third-party applications. The terms and conditions, terms of use and privacy policies of those third-party applications may apply to the User’s use of these applications within the Services.

9.4 The Software may include a list of default suppliers and their prices and the User acknowledges and agrees as follows:

9.4.1 Supplier prices will be accurate on the day the User receives access to the Platform. The User is responsible for updating any price changes.

9.4.2 If the User chooses its own suppliers, the User will have the ability through the administration panel to input their details including order codes and prices. It is the User’s responsibility to set up its supplier information and order processes, update supplier order codes and update supplier price information if that data changes.

9.4.3 Price calculation errors generated because the User has failed to update its supplier data is the User’s responsibility.

9.4.4 The User must also ensure that any freight costs applicable to materials purchased from the User’s choice of suppliers are correctly calculated. Any error in calculation of freight costs is the User’s responsibility.

9.4.5 The User is responsible to check that any Bill of Materials is accurate and make any alterations if so required. Bill of Materials means the building material quantities list provided by the User to the User Customer

9.5 If:

9.5.1 a site address is entered for a design, the Software will generate a Form 15 Compliance Certificate for Building Design - Queensland or other state equivalent, and engineering drawings;

9.5.2 no site address is provided, no Form 15 Compliance Certificate for Building Design – Queensland or equivalent will be produced, and no certified engineering plans will be provided.

9.6 If a User or User Customer purchases engineering drawings through the Software, these drawings will be by Quotec sent to an independent third-party engineer of its choice for certification and the following will apply:

9.6.1 The User or the User Customer is responsible for the cost of such certification;

9.6.2 Any engineer will assess the drawings and certify them, or not, as they deem appropriate.

9.6.3 The User authorises Quotec to act as the User’s authorised agent in placing the request for certification.

9.6.4 The agreement for certification is between the User and that certifying engineer.

9.6.5 The engineer’s details will be included in any certified drawings and any questions or concerns about the engineering certification must by with the engineer direct.

9.6.6 All consequences arising from certification, any defect in certification or a failure to have drawings certified is the User’s or User Customer’s responsibility and liability.

9.7 Quotec makes make no representation, warranty or guarantee that any drawings provided are suitable for the User’s or the User Customer’s anticipated purpose, proposed site or fit for any purpose.

10. EXCLUSIONS

10.1 The User acknowledges and agrees that Quotec:

10.1.1 is not responsible and does not provide any authority, local council or other required building certifications or approvals;

10.1.2 does not provide installation services;

10.1.3 does not provide engineering services;

10.1.4 does not warrant any requirements provided to the User or the User Customer;

10.1.5 does not provide engineering drawings unless they are requested and paid for by the User or the Customer User;

10.1.6 does not check the items that have been ordered. These items are the User’s or the User Customer’s responsibility and Quotec accepts no liability for these matters.

10.2 The User or the User Customer must satisfy itself as to the suitability, stability, adequacy and legality of the site or proposed use of the building to be constructed from any engineering designs. Quotec accepts no responsibility or liability for the structural competency of any building produced as a result of designs generated by the Software.

10.3 The User acknowledges and agrees that all dimensions shown in the drawings are to be considered nominal and not absolute, including, but not limited to, the main door opening clearance heights.

11. SECURITY

11.1 The parties expressly recognise that it is impossible to maintain flawless security.

11.2 Each party shall use best endeavours to ensure that each party’s data and Confidential Information is protected at all times during the Term of this Agreement from unauthorised access or use by third parties and from physical misuse, damage or destruction by any person.

11.3 The User is responsible for protecting its passwords and files and shall be responsible for any damage caused by unauthorised access to the Services.

11.4 If either party becomes aware of unauthorised access or use by third parties, physical misuse, damage or destruction of the Software or any Quotec application by any person then that party will immediately notify the other party and will take all reasonable measures to ensure such unauthorised access immediately ceases.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 Quotec warrants and represents that:

12.1.1 it owns or has the right to use the Software and provide the Services; and

12.1.2 in supplying the Services, Quotec will not infringe the Intellectual Property Rights of any person.

12.2 Nothing in these Terms constitutes a transfer of any Intellectual Property Rights to a party.

13. WARRANTIES

13.1 The User represents and warrants to Quotec that:

13.1.1 it has full authority and power to enter into and perform its obligations under this Agreement and can do so without the consent of any other person;

13.1.2 it has taken all action which is necessary to authorise the performance of this Agreement in accordance with its terms;

13.1.3 it is solvent;

13.1.4 it has not entered or taken steps to enter and does not propose to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or any class of them; and

13.1.5 the User’s Representative is authorised by the User as the agent of the User to act on behalf of the User in connection with this Agreement and it authorised to sign and execute documents on behalf of the User.

13.2 Quotec makes no representations or assurances and gives no warranties:

13.2.1 as to the outcomes, analysis, vulnerabilities, issues or safety requirements that may be identified and/or obtained from use of the Services;

13.2.2 as to any increase in revenue, profit or goodwill that may be obtained as a consequence of using the Services;

13.2.3 as to the accuracy, reliability or content of any information provided or obtained using the Services;

13.2.4 that the provision of the Services will result in any improvement to the User or its business;

13.2.5 that the Services or any software used to provide the Services will be uninterrupted, error free or not subject to delays (technical or otherwise);

13.2.6 that the Services will be free from external intruders, virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Quotec;

13.2.7 as to the accuracy, currency, suitability, completeness or relevance of any information contained or accessed through the Software (Information);

13.2.8 the currency, accuracy, completeness or relevance of the Information or for programming bugs or computer viruses, faults or errors in the Software, any Quotec application or the Information; and

13.2.9 that any information downloaded or otherwise transmitted to the User from use of the Services is free from viruses, faults or errors.

14. INDEMNITIES

14.1 To the extent permitted by Law, the User indemnifies and holds harmless Quotec, its affiliates, successors and assigns, and its and their personnel, directors, officers, and other licensees (each an Indemnified Party), against any Claim, cause of action, debt, expense or Liability (including legal fees and costs on a solicitor-client basis) incurred by an Indemnified Party arising out of or in connection with:

14.1.1 any breach of this Agreement by the User or its personnel;

14.1.2 any breach of law by the User or its personnel;

14.1.3 a representation made by the User or its personnel being incorrect or misleading in any way;

14.1.4 an act or omission by the User or its personnel which is not required under this Agreement;

14.1.5 personal injury, death or property damage caused or contributed to by the User or its personnel;

14.1.6 any infringement of, or claim in regard to, any third party Intellectual Property Right arising as a result of the User or its personnel carrying out its obligations under this Agreement; and

14.1.7 the User’s or its personnel’s use of the Software or any Quotec application which is negligent or infringes the rights of any third party.

14.2 The User’s Liability to indemnify an Indemnified Party under clause 14.1, other than in respect of the indemnity under clause 14.1.6 and clause 14.1.7, will be reduced proportionally to the extent that a negligent act or omission of the Indemnified Party has contributed to the loss, damage, Claim, action, expense, cost or Liability.

14.3 It is not necessary for Quotec to incur expense or make any payment before enforcing a right of indemnity conferred by this Agreement.

15. LIABILITY

15.1 The User understands and agrees that Quotec will not have any Liability to the User or others and is not liable or responsible for:

15.1.1 subject to the Australian Consumer Law, the User or the User Customer’s use of the Software in any way;

15.1.2 the payment or reimbursement to the User for any Claims for any expenses incurred by the User in the performance of its functions and duties under these Terms;

15.1.3 any acts or defaults of the User, the User’s personnel or the user Customer;

15.1.4 any unauthorised transactions made using the User’s password or account;

15.1.5 the use or non-use of the User’s services by third parties;

15.1.6 the unauthorised use of the User’s password or account that could cause the User to incur Liability to both Quotec and other users;

15.1.7 the functionality or useability of any design or calculation of a User or a User Customer on or with the Software;

15.1.8 the working order or condition of any materials or parts supplied by third parties to the User or a User Customer ordered through the Services;

15.2 Any act or omission which, if it were an act or omission of the User or its personnel, would be a breach of these Terms on its part, is taken to be such an act or omission for which the User is responsible if the act is done or omitted:

15.2.1 by any corporation or association which is controlled directly or indirectly in any manner by the User, or

15.2.2 by any firm or unincorporated body of which the User is a partner or member;

15.2.3 by any third party contracted by the User.

15.3 To the full extent permitted by law Quotec excludes:

15.3.1 all liability in respect of loss of data, interruption of business or any Consequential Loss; and

15.3.2 all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.

15.4 Where warranties are implied by law, the User acknowledges and agrees that the total aggregate liability to Quotec is limited at Quotec’s discretion to the provision of the services again, or to a refund equal to the total amount paid by the User for three (3) months access to the Software the subject of the cause of action, even if that access was provided to the User without cost.

15.5 These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations.

16. GST

16.1 For the purpose of this clause the following definitions apply:

16.1.1 GST means any form of goods and services tax payable under the GST Law;

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

16.2 Words used in this clause that are defined in the GST Law have the meaning given in that legislation.

16.3 Unless otherwise specified, all amounts payable under this Agreement are exclusive of GST and must be calculated without regard to GST.

16.4 If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.

16.5 The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.

16.6 If there is an adjustment to a taxable supply made under this Agreement then the Supplier must provide an adjustment note to the Recipient.

16.7 The amount of a party’s entitlement under this Agreement to recovery or compensation for any of its costs, expenses or Liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or Liabilities.

17. SUSPENSION

17.1 Quotec may suspend the Services in the following circumstances:

17.1.1 pursuant to clause 3.3 (non-payment of the Fee);

17.1.2 where the User has breached this Agreement and failed to rectify such breach within ten (10) Business Days after receiving written notice from Quotec to do so; and/or

17.1.3 upon written request of the User.

17.2 Quotec will not be liable to the User for any Liability or Claim arising as a result of any suspension of the Services.

17.3 After the Services have been suspended:

17.3.1 Quotec may reinstate the Services but is under no obligation to do so save for when the Services have been suspended as a result of a request from the User;

17.3.2 Quotec may at its discretion finalise any User or Customer User orders that have been processed but not completed but is not obliged to do so.

18. TERMINATION

18.1 Termination for Breach

18.1.1 Without prejudice to any other right or remedy that Quotec may have under this Agreement or otherwise, Quotec may by written notice to the User terminate this Agreement with immediate effect if the User:

(a) breaches any other agreement it may have with Quotec;

(b) becomes insolvent, bankrupt or subject to any form of external administration; or

(c) ceases to carry on business; or

(d) brings the reputation of Quotec into disrepute; or

(e) breaches a material term of this Agreement (including a failure to pay), that in the reasonable opinion of Quotec is not capable of remedy within a reasonable time; or

(f) breaches a term of this Agreement and fails to remedy the breach within ten (10) Business Days after receiving written notice from Quotec to do so. The User will not be entitled to a refund of any Fee where the Agreement is terminated pursuant to this clause.

18.1.2 The User may by written notice to Quotec terminate this Agreement with immediate effect if Quotec:

(a) becomes insolvent, bankrupt or subject to any form of external administration; or

(b) ceases to carry on business; or

(c) breaches a material term of this Agreement and fails to remedy the breach within ten (10) Business Days after receiving written notice from the User to do so.

18.2 Termination without cause

18.2.1 Quotec may terminate this Agreement immediately at any time for its sole convenience.

18.2.2 Either party may terminate this Agreement without cause by giving the other party not less than seven (7) days’ notice in writing.

18.3 Effect of termination

On termination of this Agreement:

18.3.1 Quotec will cease providing the Services. Quotec may at its discretion finalise any User or Customer User orders that have been processed but not completed but is not obliged to do so;

18.3.2 the User must immediately cease using any Intellectual Property, information, materials or knowledge of Quotec acquired pursuant to these Terms;

18.3.3 the User must immediately return to Quotec all Intellectual Property, property, information and materials that relate to Quotec, the Services, the Portal, the Platform or any Quotec application that it holds to the extent that it is possible to do so;

18.3.4 subject to clause 18.4 each party must return to the other all Confidential Information to the extent that it is possible to do so;

18.3.5 the User will pay the Fee to Quotec up to and including the date of termination. Where the Fee has been paid in advance and this Agreement has been terminated due to no fault of the User, Quotec will calculate the applicable refund and pay to the User such refund; and

18.3.6 Quotec will, on written request from the User, received prior to the date of termination provide to the User a copy of any User Data held by Quotec and relevant to the provision of the Services. If such request is received after the date of termination Quotec may charge the User an additional fee for the provision of such data.

18.4 Backup

The User acknowledges and agrees that Quotec may, but is not obliged to, undertake backups of User information obtained through the Services.

18.5 Consequences of Termination

Termination of this Agreement will not prejudice any right of action or remedy which Quotec may have accrued prior to termination of this Agreement.

19. DISPUTE RESOLUTION

19.1 Notice of dispute

If a dispute between Quotec and the User arises in connection with this Agreement:

19.1.1 either party may give to the other a notice specifying the nature and details of the dispute; and

19.1.2 the dispute will be resolved in accordance with the procedure set out in this clause.

19.2 Executive negotiation

A dispute that is the subject of a notice given under clause 19.1.1 must be referred to a senior executive of each party who is authorised to meet with a view to resolving the dispute.

19.3 Mediation

If the senior executives do not resolve the dispute within ten (10) Business Days after notice is given under clause 19.1.1 (or such longer period as the parties may agree), either party may refer the dispute to the Australian Disputes Centre Limited (ADC) for mediation in accordance with clause 19.4.

19.4 Mediation Process

If a dispute is referred to ADC for mediation in accordance with clause 19.3:

19.4.1 the mediation will be conducted in accordance with ADC’s Commercial Mediation Guidelines; and

19.4.2 each party will bear its own costs of the mediation and share equally in the costs of the mediator and ADC.

19.5 Injunctive Relief

Nothing in this clause 19 will prejudice the right of a party to institute proceedings to seek injunctive or urgent declaratory relief in respect of a dispute or any matter arising under this Agreement nor does it affect the obligations of the parties to continue to perform this Agreement.

19.6 Continuation of obligations

Despite the existence of a dispute, each party must continue to comply with its obligations under this Agreement.

20. CONFIDENTIALITY

20.1 A party (Recipient) must ensure that it and its personnel:

20.1.1 use and reproduce Confidential Information of the party disclosing the Confidential Information (Discloser) only to perform its obligations under this Agreement; and

20.1.2 not disclose or otherwise make available a Discloser’s Confidential Information other than to personnel who have a need to know the information to enable them to perform obligations under this Agreement.

20.2 All of a Discloser’s Confidential Information will remain the property of the Discloser and all copies or other records containing that Confidential Information (or any part of it) must be returned by the Recipient to the Discloser on termination or expiry of this Agreement.

20.3 The Recipient acknowledges and agrees that a Discloser will be entitled (in addition to any other remedy it may have) to seek an injunction or other equitable relief with respect to any actual or threatened breach by the Recipient of this clause and without the need on the part of the Discloser to prove any special damages.

20.4 Subject to clause 20.5, each party agrees to treat as confidential all information of or relating to the other party that is provided to it, under this Agreement or otherwise, which the Discloser notifies in writing to the Recipient is confidential.

20.5 Each Discloser hereby consents to the Recipient disclosing any Confidential Information of the Discloser:

20.5.1 as required by Law; or

20.5.2 to external consultants and advisers of the Recipient engaged with regard to this Agreement.

21. FORCE MAJEURE

21.1 If a party hereto is affected, or likely to be affected, by a Force Majeure Event, it must immediately give the other parties prompt notice of that fact including:

21.1.1 full particulars of the Force Majeure Event;

21.1.2 an estimate of its likely duration;

21.1.3 the obligations affected by it and the extent of its effect on those obligations; and

21.1.4 the steps being taken to rectify or minimise it.

21.2 The obligations under this Agreement of the party affected by a Force Majeure Event are suspended to the extent to which they are affected by the relevant Force Majeure Event and for as long as the Force Majeure Event continues.

21.3 If the affected party’s inability to perform its obligations continues for a period greater than ninety (90) days following the Force Majeure Event, the other parties have the right to immediately terminate this Agreement by written notice.

22. VARIATION

22.1 Quotec may change these Terms either by obtaining the User’s consent or by giving the User notice. The period of notice given by Quotec depends on the nature of the change (as determined by Quotec in its sole discretion). If:

22.1.1 The change will benefit the User: The change can be made immediately: Prior notification is not required.

22.1.2 The change is required by law, a regulatory body or for a technical reason: Three (3) Business Days’ prior notice.

22.1.3 The change will have significant and detrimental impact on the User: Twenty-one (21) Business Days’ prior notice.

22.1.4 All other changes: Twenty-one (21) Business Days’ prior notice.

22.2 Notice of a change may be given by email to the User.

22.3 Continued use of the Services after expiration of the required notice period will constitute acceptance of the varied terms by the User.

23. NOTICES

23.1 Notices must be in writing and delivered to or sent by pre-paid post, email or facsimile at the address, email address or fax number set out in the Information Schedule unless a substitute address, email address or fax number has been notified in writing by a party to the other party.

23.2 The parties agree that a notice will be deemed received:

23.2.1 if delivered by hand, on the date of delivery;

23.2.2 if sent by pre-paid post, three (3) Business Days after posting; or

23.2.3 if sent by email, at the time the email leaves the sender's email server, provided the party giving the notice does not receive an automatically generated email response indicating non-receipt by the intended recipient, provided that any notice personally delivered or sent by facsimile or electronically after 5.00pm on any Business Day will be deemed to have been validly delivered at 9.00am on the next Business Day.

23.3 A notice sent by email will be deemed to be in writing for the purposes of this clause.

24. INTERPRETATION

24.1 Definitions

For the purposes of these Terms:

24.1.1 Agreement means these Terms together with any annexure and/or schedule;

24.1.2 Business Day means any day other than a Saturday, Sunday, public holiday in Queensland, Australia or 27, 28, 29, 30 and 31 December of each year;

24.1.3 Claim means, in relation to a person, any action, suit, proceeding, claim or demand instituted, made or threatened against the person, however arising and whether present or future, fixed or unascertained, actual or contingent;

24.1.4 Commencement Date means the earlier of the date upon which Quotec confirms to the User that the Services will commence or the date the User makes the first payment of the Fee, whichever is the earlier;

24.1.5 Confidential Information means all information, in any form, written or unwritten, including trade names, trade secrets, domain names, client lists, client information and contact details, logos, methods described in patent applications, software, hardware, source code, methodologies, advice, processes, procedures, inventions, ideas, know-how, technical expertise or concepts, which is provided or made available by a party to this Agreement by another party to this Agreement or its associates (whether orally or in writing) or to a related entity or a related body corporate but excluding information already in the public domain, except where that information has become available by virtue of a breach of this Agreement;

24.1.6 Consequential Loss means any Liability suffered by a party which:

(d) is special, indirect or consequential loss or damage within the meaning of the common law;

(e) results from a supervening event;

(f) is a loss of revenue, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of interest, damage to credit rating, loss or denial of opportunity or increased overhead costs, loss of use, loss of profits; or

(g) is suffered by a party as a result of a claim upon it by a third party (including third party claims for personal injury or damage to property;

24.1.7 Employees means the number of employees (full-time, part-time or casual) employed by the User;

24.1.8 Fee means the Subscription Fee and any other fee changed by Quotec to the user from time to time;

24.1.9 Force Majeure Event means any cause unforeseen and arising without fault or negligence on the part of the party affected or otherwise beyond the reasonable control of the party affected, including but not limited to acts of God, civil disorder, war, riots, industrial disturbance, national emergency, material shortages, damage to plant, equipment and or facilities, acts or omissions of public authorities including local, state or federal governments;

24.1.10 goods include, but are not limited to, sheds, garages, carports, barns, awnings and mezzanine floors, componentry and other types of structures in steel form;

24.1.11 GST means a tax, impost or duty on goods, services or other things imposed by any fiscal, national, state, territory or local authority or entity and whether presently imposed or novel, together with interest or penalties either before or after the date of this Agreement;

24.1.12 Improvement means any variation to the Services or the Intellectual Property, conceived of or developed by either Quotec or the User, which could improve the Services in any way;

24.1.13 Insolvency Event means any of the following events in respect of either party:

(a) an application is made to a court for an order, or an order is made appointing a liquidator or provisional liquidator in respect of the party (or proceedings are commenced or a resolution passed or proposed in a notice of meeting for any of those things);

(b) proceedings are initiated with a view to obtaining an order for the winding up or similar process of the party or an order is made or any effective resolution is passed for the winding up of the party;

(c) the party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors or it proposes a reorganisation, moratorium or other administration involving any class of its creditors;

(d) a controller is appointed to take over or takes possession of all or a substantial part of the assets or undertakings of the party;

(e) the party is or is deemed or presumed by law or a court to be insolvent;

(f) the party takes any step to obtain protection or is granted protection from their creditors under any applicable legislation or an administrator is appointed to the party; and

(g) anything analogous or having a substantially similar effect to any of the events specified above happens in respect of the party under the law of any applicable jurisdiction;

24.1.14 Intellectual Property means:

(a) all proprietary rights and Intellectual Property Rights (including the right to make application for such rights) which relate, refer or pertain to the Services, the Platform, the Portal and any Quotec application, any Improvements, the Confidential Information or the business of Quotec, which are provided under patent law, copyright law, trademark law, design patent and industrial design law, or any other applicable statutory provision or common law principle, including trade secret law, that may provide a right in ideas, formulae, algorithms, concepts, inventions, know-how, trade names, trade dress or business reputation, or the expression or use thereof, and including all past, present, and future causes of action, rights of recovery, and claims for damage, accounting for profits, royalties, or other relief;

(b) all applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in Quotec, the Services, the Platform and the Portal; and any Improvement to any of the above;

24.1.15 Intellectual Property Rights means any intellectual property rights protected by statute or common law in Australia or elsewhere in the world and whether registered or unregistered and includes copyright, design, patent, trade mark, semiconductor and circuit layout rights;

24.1.16 Law means any statutes, regulations, ordinances, by-laws, orders, awards, proclamations and any enforceable policy of an Authority, certificates, licences, consents, permits, approvals and requirements of Authorities, applicable codes of practice, applicable standards (including any relevant Australian Standards), obligations under the common law and in equity as well as any fees and charges payable in connection with any of the foregoing;

24.1.17 Liability means all liability, causes of action, Claims, losses, damages (including consequential damages), costs, charges, expenses, penalties and injuries of any kind parties means the parties to this Agreement and party means any of them;

24.1.18 personnel means subcontractors, employees, agents, advisors and other persons engaged by a party to perform its obligations under this Agreement;

24.1.19 Platform means the digital platform comprising software and hardware known as Quotec Live that provides tools to help a User to design, calculate and engineer sheds, garages, carports, barns, awnings and mezzanine floors and other types of structures in steel form which is used to provide the Services;

24.1.20 Portal means the dashboard interface delivered through a User’s existing retail website as an add-on feature to the Platform and known as Quotec Now that enables customers of a User to design, cost and order their own sheds, garages, carports, barns and such other products online;

24.1.21 Quotec application means any application in addition to the Platform and/or Portal provided by Quotec to the User pursuant to these Terms;

24.1.22 Services mean the provision of the Platform and/or the Portal at the User’s chosen Subscription Level on these Terms;

24.1.23 Software means the Platform and/or the Portal as updated and modified from time to time;

24.1.24 Special Conditions mean the special conditions, if any, as set out in this Agreement;

24.1.25 Subscription means the subscription for the provision of the Services by Quotec to the User pursuant to these Terms;

24.1.26 Subscription Fee means the fee set and charged to the User by Quotec for the provision of the Services from time to time and where the context dictates;

24.1.27 Subscription Level means the category of Services selected by the User as at the Commencement Date and may include the use of the Platform and Portal or the Platform only;

24.1.28 Term means the period of time applicable to the Subscription commencing on the Commencement Date and ending when this Agreement is terminated by either party;

24.1.29 User means a third party (i.e. you) who has a Subscription on these Terms;

24.1.30 User Customer means a customer of a User who uses the Portal under this Subscription;

24.1.31 User Data means any data inputted into the Platform or Portal by the User or a User’s Customer;

24.1.32 User Representative means any representative, Employee or agent of the User;

24.2 Interpretation

The following apply in the interpretation of this Agreement, unless the context requires otherwise:

24.2.1 a reference to the agreement means this Agreement and includes any variation or replacement of it;

24.2.2 a reference to a document includes a reference to that document as amended, novated, assigned or otherwise varied;

24.2.3 a reference to a statute or other law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of it;

24.2.4 the singular includes the plural number and vice versa;

24.2.5 a reference to a gender includes a reference to each gender;

24.2.6 the word "person" includes a firm, corporation, body corporate, unincorporated association or a government department or authority, association or other legal entity;

24.2.7 a reference to a person includes a reference to the person's legal personal representatives, successors, liquidators, trustees in bankruptcy and the like, and permitted assigns;

24.2.8 an agreement on the part of, or in favour of, two (2) or more persons binds or is for the benefit of them or any one or more of them together and separately;

24.2.9 a reference to a party means a person who is named as a party to, and is bound to observe the provisions of, this agreement;

24.2.10 "includes" (or similar wording) means “includes but without limitation”;

24.2.11 where a word or phrase is given a defined meaning in this Agreement, any other part of speech or grammatical form in respect of such word or phrase has a corresponding meaning;

24.2.12 a reference to an act includes an omission and a reference to doing an act includes executing a document;

24.2.13 words not otherwise defined in this agreement but defined in the Corporations Act 2001 (Cth) have the meaning given in that Act;

24.2.14 a reference to dollars or $ is to Australian currency. All amounts to be invoiced or paid under this Agreement are to be in Australian currency unless otherwise agreed to by Quotec;

24.2.15 headings are for reference only and do not affect the meaning or interpretation of this Agreement;

24.2.16 if any day appointed or specified by this agreement for the payment of any money falls on a day which is not a Business Day, the day so appointed or specified is deemed to be the next day which is a Business Day;

24.2.17 if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

24.2.18 a reference to a day is to be interpreted as the twenty-four (24) hour period ending at midnight at the end of that day; and

24.2.19 a reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to this Agreement.

24.3 Precedence

In the event of an inconsistency between these Terms and Conditions and the terms and conditions of supply of any product by Quotec to the User or a User Customer, these Terms and Conditions will apply to the extent of any inconsistency.

24.4 Inconsistencies, errors, ambiguities or discrepancies

If the User discovers any inconsistency, error, omission, ambiguity or discrepancy in this Agreement then the User must promptly give Quotec written notice of the inconsistency, error, omission, ambiguity or discrepancy. Quotec will then direct the User as to the interpretation and construction to be followed, taking into account the order of precedence specified in clause 24.3 of this Agreement.

24.5 Contra proferentem

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

24.6 Survivorship

The provisions of this Agreement relating to set-off and deductions, warranties, indemnities, confidentiality, termination and dispute resolution survive the termination or expiry of this Agreement.

25. GENERAL

25.1 Where a term is defined in these Terms and referred to in this Agreement, the definition will, unless otherwise specified, apply to the whole of this Agreement.

25.2 This Agreement and its attachments constitute the entire Agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties, whether orally or in writing.

25.3 Quotec makes no representation or guarantee as to the effectiveness of the Services.

25.4 The User must not assign, sublicense or otherwise deal in any other way with any of the User’s rights under this Agreement.

25.5 Quotec is not liable for any delays in performing any obligation under these Terms caused by circumstances beyond its reasonable control, including but not limited to catastrophes, fire, internal or external strike, wars, terrorists acts, internal or external breakdowns or failure, and, in general, any failure of a User to act in a timely or appropriate way.

25.6 These Terms will, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:

25.6.1 that provision will, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or

25.6.2 if the provision or part of it cannot effectively be read down, that provision or part of it will be deemed to be void and severable and the remaining provisions of these Terms will not in any way be affected or impaired and will continue notwithstanding that illegality, invalidity or unenforceability.

25.7 A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

25.8 This Agreement may be assigned or transferred in any manner by Quotec at its sole discretion.

25.9 Each party must promptly execute all documents and do every thing necessary or desirable to give full effect to the arrangements contained in this Agreement.

25.10 This Agreement is governed by the laws of Queensland, Australia and each party submits to the jurisdiction of the courts of Queensland, Australia.

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