Hosted Software Licence Agreement

Effective starting: January 18th, 2021

Thanks for using ScaffPlan's Products! The terms detailed in this Hosted Software Licence Agreement (this “Agreement”) describe your rights and responsibilities as a customer of our Products. This Agreement is between you and the ScaffPlan entity that owns or operates the Product that you are using or accessing (“ScaffPlan”, "the Provider", "Provider", “we” or “us”).  “You”, "Subscriber" or "the Subscriber" means the entity you represent in accepting this Agreement or, if that does not apply, you individually.  If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have the full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or a similar button or checkbox) that is presented to you.

Please note that if you sign up for a Product using an email address from your employer or another entity, then (a) you will be deemed to represent such party, (b) your click to accept will bind your employer or that entity to this Agreement, and (c) the word “you” in this Agreement will refer to your employer or that entity.

This Agreement is effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Product, whichever is earlier (the “Effective Date” or "Commencement Date"). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “I agree” (or similar button or checkbox) at the time you register for a Product, create a Product account, or place an Order. For No-Charge Products, you also indicate your assent to this Agreement by accessing or using the applicable No-Charge Product.  

Background

1. ScaffPlan is the sole and exclusive owner of the Software.
2. ScaffPlan grants and the Subscriber accepts a non-exclusive, non-transferable Licence to access and operate the Software upon the Terms and subject to the conditions contained herein.

Agreed Terms

The Terms and Conditions of this Subscription Agreement specified herein and in any and all schedules or licenses either contained or attached as schedules or later added or adopted as relative hereto in the agreed manner are ACCEPTED by the Parties as specified in Clause 1 (1.1) below.

Part 1: Definitions

In this Agreement the following expressions will have the following meanings:

1.1 “Acceptance”/“Accepted” means express Agreement by the Parties in any of the following ways: by the Subscriber by clicking “I agree” (or similar button or checkbox) and ScaffPlan providing confirmation of Subscription or by both Parties mutually agreeing to accept this Agreement by signing or accepting in ‘wet ink’, digitally, electronically, or concluded by exchange of emails between them. 

1.2 “Acceptable Use Policy” means the acceptable use policy attached in Annexure A or as is modified and communicated to the Subscriber by ScaffPlan from time to time;

1.3 “Agreement” and/or “Subscription Agreement” means this Agreement and conditions together with any additional or amended Agreements, Terms, conditions or licenses either contained or attached as Schedules including Subscriber registration details or any variations which are later added or adopted via shrink-wrap, web-wrap, clickwrap, click-through licenses (which will be deemed to be a Schedule to or replacement of this Agreement) and which are Accepted by the Parties. 

1.4 “Authorised Users” means the Subscriber and its employees, agents, contractors or advisers who are authorised by the Subscriber to use the Services for the purposes only of providing such Services to or for the Subscriber. The Subscriber is solely responsible for all Authorised Users. 

1.5 “Commencement Date” and/or "Effective Date" means the date of Acceptance. 

1.6 “Database” means ScaffPlan’s database of Software, data, website content, information, instructions, training and support material as well as hosted data from all Subscribers, users and Parties in whatever media. 

1.7 “Schedule(s)” means any document(s) agreed between ScaffPlan and the Subscriber which contains details of the Subscriber, the Services and Software selected by the Subscriber, the number of Authorised Users that may access and use the Services, Subscription Charges based on that number of Authorised Users, server storage space which the Subscriber estimates that it will need for its use, training, implementation and/or additional professional or other Services that the Subscriber may contract for and such other details as the Parties agree. 

1.8 “Services” means the Cloud-based and/or Software Subscription Services made available to the Subscriber and its Authorised Users by ScaffPlan via ScaffPlan’s website as specified on ScaffPlan’s website and in any relevant Subscriber/User guides and other supplementary information. 

1.9 “Software” means the Software provided by ScaffPlan (including third party Software) which is required by the Subscriber to access, use and/or receive support for the Services. 

1.10 “Subscription Charges” means those fees and charges which are payable by the Subscriber to ScaffPlan for the Services (including but not limited to the license fee to use ScaffPlan’s Software and (where applicable) other Products and/or Services as set out in any Schedule agreed between the Parties to form part of this Agreement. 

1.11 “Subscriber Data” means all information, data and material including but not limited to the Subscriber’s and its Authorised Users’ information (but not ScaffPlan’s templates, designs and formats) created by the Subscriber or its Authorised Users in whatever form through using the Services in accordance with this Agreement and which is owned by the Subscriber or Authorised User. 

1.12 “System” means the computer system(s), servers (physical or virtual), Software and network which ScaffPlan uses to store, host and provide access to the Services. 

1.13 “Term” has the meaning set out in Clause 16 below.

1.14 “Third Party ScaffPlan” means such third party proprietor who has authorised ScaffPlan to use and/or incorporate its own systems, Software, material, Products, Services and/or other information in or for provision of the Services as such party may or may not be separately identified in/on any part of the Services or System. 

Part 2: Subscription to Provide Cloud-based and/or Software Services 

2.1 Upon Acceptance of the Terms and conditions of this Agreement and payment of the appropriate Subscription fees and charges, ScaffPlan hereby grants to the Subscriber a non-exclusive, non-transferable Subscription right to access and use the Services and Software for itself and by each of its Authorised Users solely for the Subscriber’s own internal business [and if applicable, that of its own clients/customers whose data the Subscriber may be processing] during the Term of this Agreement. 

2.2 In order to access and use the Services, ScaffPlan will provide the Subscriber with user names and/or passwords. The Subscriber is solely responsible for safeguarding the same and undertakes to indemnify ScaffPlan in the event ScaffPlan suffers any loss or damage whatsoever as a result of the Subscriber’s or its Authorised Users’ use, misuse or negligent use of the same and of the Services. 

2.3 ScaffPlan may provide the Subscriber with other materials from time to time necessary for the use and/or support of the Services including Software, instruction guides, training, support procedures, documentation, information updates and other material. The Subscriber will implement/comply with ScaffPlan’s directions for the use/implementation of the same. 

2.4 Where Software is required by the Subscriber to access and use the Services, ScaffPlan hereby grants and the Subscriber hereby accepts a non-exclusive, non-transferable, revocable license to use the Software solely for the purposes of accessing and using the Services subscribed for by the Subscriber and covered by and during the Term of this Agreement. ScaffPlan may update the Software from time to time with or without notice to the Subscriber. This license and access to the Services and Subscriber Data are automatically revoked and access denied if the Subscriber is in breach of this Agreement. 

2.5 To the extent necessary to provide the Software and Services to the Subscriber, the Subscriber hereby grants to ScaffPlan a worldwide, royalty-free intellectual property licence to access the Subscriber’s computer systems and Software connected to the Service and/or use the Subscriber Data, together with all necessary rights including but not limited to changing the size, shape or format of Subscriber Data to better store, host or display it to the Subscriber and Authorised Users, and to protect the Subscriber, Authorised Users and the Services from abuse, misuse, hacking, interception and to improve and enhance the Services, support and other Products and Services.

Part 3: Subscriber and Authorised Users Use of the Services 

3.1 The Subscriber has selected on ScaffPlan’s website or set out in a Schedule agreed by the Parties prior to or contemporaneously with this Agreement the maximum number of Authorised Users that may access and use the Services and has paid Subscription Charges based on that number. If this is exceeded or is required by the Subscriber to be increased at any time then it must notify ScaffPlan and pay the additional charges relating to the same from the date of first exceeded use. ScaffPlan may deny the Subscriber access to the Services in accordance with clauses 6.3 and 8.5 as well as other provisions of this Agreement, until such time as these defaults are rectified. 

3.2 The Subscriber will be solely responsible and liable for its own use and for each Authorised User’s use of the Services in compliance with this Agreement, ScaffPlan’s Acceptable Use and Privacy policy, ScaffPlan’s website Terms and conditions, password confidentiality, change frequency and site security. The Subscriber will keep an up-to-date record of all such users and ensure they are trained in the proper use of the Services. 

3.3 The Subscriber will not itself and will ensure that no Authorised User will nor attempt any of the following prohibited acts: 

1. 1. Input, access, store, transmit or distribute any viruses, Trojan horses, worms, time bombs, cancelbots, malware, spyware or other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing the functionality, operation or integrity of the Services, Software, System or Database; 
   2. Input, access, store, transmit or distribute any content which is malicious, illegal or harmful, harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind, or any material that exploits children or is invasive of another person’s privacy or other rights or that may otherwise cause distress, injury or damage to any person or property; 
   3. Engage in “phishing”, “smishing” or other deceptive or misleading online activity or transmit any “spam” or other unsolicited messages that can degrade or otherwise interfere with Services, Software, System or Database or other users of the same; 
   4. Spoof, steal the identity or otherwise impersonate any individual or entity or falsely state or otherwise misrepresent the Subscriber’s or Authorised User’s identity, status, ability or affiliation in any way; 
   5. Disable, tamper, hack, copy, duplicate, disassemble, decompile, reverse engineer, extract, download, distribute, frame or re-publish any part or whole of the Services, Software, System, Database or source code; documentation, guides or other proprietary information or any database or information which may be available by access to/extraction through the use of the Services, Software, System or Database; 
   6. Infringe ScaffPlan’s intellectual property rights in and to the Services, Software, System, Database, ScaffPlan’s website, or any material which ScaffPlan has made available to the Subscriber or any Authorised User or which the Subscriber may have otherwise gained from the Services, Software, System or Database, ScaffPlan’s website including but not limited to “framing”, “linking”, or using spider or “screen scrape” Software or systems to extract ScaffPlan’s data or otherwise use ScaffPlan’s trademarks, trade name, copyright, database and other intellectual property rights; 
   7. Translate, adapt, vary or modify the Services, Software, System or Database or any of ScaffPlan’s other Software or website material into any other language or code whether or not computer-generated or using any AI Software or tool; 
   8. Adapt, vary, modify or work around any technical limitations, rights management or monitoring in the Services, Software, System or Database or on ScaffPlan’s website. 

Part 4: Subscriber Data and Privacy 

4.1 The Subscriber retains all ownership of and intellectual property rights in its Subscriber Data to the extent that it owns the same. 

4.2 The Subscriber is solely responsible for the legality, accuracy, completeness and use of Subscriber Data and the Subscriber undertakes to indemnify ScaffPlan in the event that ScaffPlan suffers any loss or damage whatsoever as a result of the Subscriber’s use of the Services and its Subscriber Data in accordance with clause 15 below. 

4.3 The Subscriber will be solely responsible for making regular back-ups of its Subscriber Data. 

4.4 The privacy of the Subscriber and Authorised Users is very important to ScaffPlan and ScaffPlan will always endeavour to comply with the latest applicable data protection measures to ensure fairness, transparency, accuracy, security, minimisation and respect for these rights with regard to any of the Subscriber and Authorised Users’ personal data, Subscriber Data or data which the Subscriber and Authorised Users’ gather or obtain from the use of the Services whether ScaffPlan may obtain this from the Subscriber and Authorised Users upon entering into this Agreement or later gather during the Subscriber and Authorised Users’ use of the Services. Please see the ScaffPlan privacy policy. 

Part 5: Hosting of Own Subscriber Data 

5.1 Where the Subscriber is hosting its own Subscriber Data, the Subscriber is solely responsible for all of its own privacy, security, data protection, Subscriber and Authorised User Data, storage, back-up and availability of/connectivity to the Services and support. 

5.2 Where the Subscriber is a Service ScaffPlan, for clients and/or customers, the Subscriber is solely responsible for all of its own privacy, security, data protection, its own Subscriber Data, Authorised User and clients/customers’ data, storage, back-up and availability of/connectivity to the Services for itself and its Authorised Users, clients and support. 

5.3 Where ScaffPlan is hosting Subscriber Data, ScaffPlan will be responsible for the privacy, security, data protection of the Subscriber Data and Authorised User Data, storage, back-up and support, subject always to any Third Party hosting ScaffPlan’s Terms, conditions and standards, of which Subscriber will be advised.

Part 6: Account and Access Data 

6.1 The Subscriber is solely responsible for ensuring that all registration and contact details supplied to ScaffPlan are true and accurate at all times and are kept updated by the Subscriber. By so doing, the Subscriber consents to receive and transact with ScaffPlan by electronic communications. The Subscriber agrees that ScaffPlan may send electronic communications relating to the Services, Software, other Products and Services, instructions, upgrades or support relating to its own and those of associated third parties. 

6.2 The Subscriber is also solely responsible for ensuring the security and confidentiality of all passwords, Product keys, licences and/or access numbers, account names or numbers and login information used by it in any way in relation to the Services, Software, documentation, support and/or upgrades (“AA Data”) and undertakes to prevent unauthorised access or use of the same. The Subscriber will be solely liable to ScaffPlan for any breach of this provision and undertakes to indemnify ScaffPlan for all and any loss which ScaffPlan may suffer as a result of such breach in accordance with Clause 15. 

6.3 The Subscriber agrees that ScaffPlan will have the right to deny the Subscriber or any Authorised User or other party using the AA Data, access to the Services, Database, the Software, documentation or other Services which it has reason to believe is unauthorised or non-compliant or if the Subscriber exceeds the limits on storage or file size allowed by the Services or has failed to pay for the same. 

6.4 Notwithstanding the Subscriber’s obligation to keep the information updated and to protect the security and confidentiality of the same, the Subscriber hereby grants ScaffPlan permission to obtain and use Subscriber information which it deems necessary for the proper performance of its Services including but not limited to the Subscriber IP address(es), company name, user numbers licence number/s etc., to enable it to provide the Software and Services efficiently and to monitor the use of the same for security and compliance with this Agreement. 

Part 7: Agreement Change Requests 

7.1 The Subscriber may change hosting arrangements, the number of Authorised Users, engines or other details in the Schedule by notifying ScaffPlan and payment of the appropriate additional fees as advised by ScaffPlan.

7.2 The Parties agree that any other changes to this Agreement including without limitation: changing/adding Services and/or Software, enhancements/upgraded versions of the Services, the Software, additional or changed Subscribers, variation to fees or charges, Term or any other variations hereto may be subject to additional payment and implemented by a Schedule or, in the case of Software, by shrink wrap, web-wrap, click-wrap or click-through license (as appropriate). 

Part 8: Subscription Charges 

8.1 The Subscription Charges and any other fees and charges are specified on ScaffPlan’s website and/or in the Schedule are payable annually in advance (unless otherwise specified) and are based on the Services, Software, the number of Authorised Users, engines, hosting, storage and Agreement Term all as specified in the Schedule and upon the Terms and conditions of this Agreement. 

8.2 The Subscriber agrees to pay ScaffPlan the applicable Subscription Charges as specified by ScaffPlan from time to time for access to and use of the Services. The Subscription Charges (if not already paid in advance) are due for payment fourteen (14) days after Acceptance or renewal of this Agreement or (if earlier) first access to the Services by the Subscriber. 

8.3 The Subscription Charges includes support and Software updates as specified in the Schedule. 

8.4 ScaffPlan will have the right to vary the Subscription Charges by advising the Subscriber of the annual Subscription Charges each year and issuing an invoice for payment one month prior to the date for payment. The Subscriber agrees to pay ScaffPlan for any additional Services or training provided based upon standard ScaffPlan charges and to reimburse ScaffPlan for all reasonable and actual expenses incurred by ScaffPlan in providing the Services under this Agreement. 

8.5 In the event that the Subscriber fails to make payment of the Subscription Charges when due, the Subscriber will immediately cease using the Services and ScaffPlan has the right to deny the Subscriber and its Authorised Users access to the Services and the Subscriber Data and Authorised User Data where hosted by ScaffPlan. This Agreement to use the Services will automatically cease other than for the Terms which survive Termination. 

8.6 All charges payable under this Agreement are exclusive of and net of any taxes or duties including (but without prejudice to the foregoing generality) GST levied on ScaffPlan or the Subscriber by reference to the Services, Software provision of the same or anything else supplied, divulged or made available to the Subscriber under this Agreement. Such taxes or duties will be paid by the Subscriber at the rate and in the manner for the time being prescribed by law. 

8.7 If any sum payable under this Agreement is not paid within 14 days after the due date then (without prejudice to ScaffPlan’s other rights and remedies including denial of Service) ScaffPlan reserves the right to charge interest on such sum on a day-to-day basis (before as well as after any judgement) from the due date to the date of payment (both dates inclusive) at the rate of 4 per cent above the indicator rate set by the ScaffPlan’s bank on unsecured overdrafts in the sum of $5,000.00 from time to time.

8.8 Additional/varied Fees may be payable in respect of any changes to the Services, Software and/or support. The Subscriber undertakes to notify ScaffPlan of any such variation forthwith and ScaffPlan will invoice the Subscriber in respect of such variation, if a varied fee is applicable, which the Subscriber undertakes to pay in the manner specified therein or herein (as appropriate). The Subscriber may also be subject to an additional charge upon issue to the Subscriber of enhanced or new versions of the Services, Software or support. Such additional charge will become payable within fourteen (14) days of permission to access the relevant enhancement or upgrade. 

8.9 If any payment made by one party to any other party under or relating to this Agreement (including payments for supplies relating to the breach or Termination of, and indemnities arising from, this Agreement constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. For this purpose, “GST” means any tax, levy, charge or impost implemented under the GST Law or an Act of Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Law; “GST Law” means the A New Tax System (Goods And Services Tax) Act 1999 (Cth) and associated legislation and regulations and “supplier” and “taxable supply” are to be construed by reference to the GST Law. 

Part 9: Support and Other Services 

9.1 During the continuance of this Agreement and subject to the payment by the Subscriber of the Subscription Charges and the Subscriber using only trained and competent staff/Authorised Users to use the Services, ScaffPlan will provide the Subscriber with the Support Services in accordance with Schedule 1. 

9.2 ScaffPlan may authorise a third party “Support Representative” which may be a distributor, dealer, service centre or other third party support organisation to provide the support Services and/or to invoice the Subscriber for and collect the charges specified herein. Such authorisation may be in the form of a sub-contract or other arrangement deemed appropriate by ScaffPlan. 

Part 10: Subscriber's Undertakings 

10.1 The Subscriber undertakes: 

1. 1. To reproduce and include ScaffPlan’s copyright notice as well as such other Third Party ScaffPlan as may be specified in or on the Services, Software, System or Database or on ScaffPlan’s website as a third party owner (“Owner”) on all uses, print outs, data and any copies permitted under this Agreement.
   2. To comply with ScaffPlan’s most up-to-date instructions on the use of the Services, Software, system or Database and immediately (but not later than within 7 days) upon expiry, Termination or cessation of this Agreement for any reason, to permanently delete any ScaffPlan Services, Software or any part of ScaffPlan’s Database (other than Subscriber Data) from Subscriber’s own system; 
   3. To comply with the additional provisions on the ScaffPlan website including but not limited to the most current Privacy Policy and website Terms and Conditions as ScaffPlan may update the same from time to time. 
   4. To indemnify ScaffPlan and keep ScaffPlan indemnified in accordance with Clause 15 below in the event that ScaffPlan suffers any loss or damage whatsoever as a result of Subscriber’s use of the Services, Software, System or Database, or from Subscriber Data and Authorised User Data. 
   5. Not to perform any of the acts referred to in clause 3(c) above. 

10.2 The Subscriber also undertakes whenever ScaffPlan may reasonably so require, to obtain from all Authorised Users or other persons within the Subscriber’s control undertakings in such Terms as ScaffPlan will reasonably approve to prevent unauthorised access, use, copying of Services and/or Software. 

10.3 The Subscriber undertakes to comply with all other obligations specified in this Agreement. 

Part 11: Copyright, Patents, Trade Marks, Database Rights and Other Intellectual Property Rights 

11.1 The Subscriber acknowledges that (other than Subscriber Data and Authorised User Data) any and all of the copyright, trademarks, trade names, templates, formats, designs, displays, animations, presentation, patents, database rights, and other intellectual property rights subsisting in or used in connection with the Services (in whatever media or format including but not limited to audio-visual and any other media) and including without limitation, the Software, System, Database all information, guides and instructions relating thereto and including but not limited to any and all variations, adaptations, translations or derivatives thereof whether or not computer-generated or using any AI Software or tool are and will remain the sole property of ScaffPlan and/or the Third Party ScaffPlan (as appropriate). 

11.2 The Subscriber will not during or at any time after the expiry or Termination of this Agreement in any way question or dispute the ownership by ScaffPlan and/or such Third Party ScaffPlan. 

11.3 In the event that new inventions, designs, processes, Services, Software, support, Products, configuration settings, templates, formats or other material in any form or media evolve in performance of or as a result of this Agreement, the Subscriber acknowledges that the same will be the property of ScaffPlan unless otherwise agreed in writing by ScaffPlan.

11.4 The Subscriber will indemnify ScaffPlan and/or the Third Party ScaffPlan fully against all liabilities, costs and expenses which ScaffPlan and/or Third Party ScaffPlan may incur as a result of any work done in accordance with the Subscriber's specifications involving infringement of any patent or other proprietary right in accordance with Clause 15. 

Part 12: Confidential Information 

12.1 The Term “Confidential Information” will mean and include information or material that a receiving party knows, or reasonably, under the circumstances of disclosure, should know, or the disclosing party considers to be of a confidential or sensitive trade secret nature, including without limitation: 

1. 1. All information, data, drawings, Products, specifications, templates, formats, designs, displays, presentation (in whatever media or format including but not limited to audio-visual and any other media), documentation, Software listings, source or object code or data files which the disclosing party may have provided and may from time to time provide to the receiving party relating to the Services, Software, System, Database and/or its support and other Services; 
   2. All other forms and types of confidential or non-public financial, business, scientific, technical, economic, marketing, engineering or system-related information, including patterns, plans, compilations, programs, devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, or know-how, and information concerning either party’s other internal business practices and/or actual or potential Subscribers, whether any of the foregoing is in tangible or intangible form, and whether or how stored, compiled or memorialised physically, electronically, graphically, photographically, or in writing; 
   3. Which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and/or 
   4. Identified by the disclosing party as confidential prior to or at the time of disclosure. 

12.2 Confidential Information does not include any information or material: (i) which is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) which is already known to the receiving party before disclosure by the disclosing party; (iii) which is independently developed by the disclosing party without the use of or reference to the Confidential Information of the other; or (iv) which the receiving party rightfully receives from third Parties without restriction as to use or disclosure. 

12.3 Each party will maintain all Confidential Information of the other in strict confidence and will not at any time or for any reason disclose any Confidential Information to any third party without the disclosing party’s prior written consent. Neither party will use any Confidential Information of the other for any purpose whatsoever except in performing its duties and exercising its rights under this Agreement nor disclose any Confidential Information to any of its agents, Authorised Users or other users who do not participate directly in the performance of its duties or exercise of its rights under this Agreement, and will advise its Authorised Users who are permitted access to any Confidential Information of the restrictions upon disclosure and use set forth in this Agreement. 

12.4 Notwithstanding the foregoing, the receiving party may disclose the Confidential Information if it is required to do so under any Applicable Law, rule, or regulation which requires the disclosure, provided that it makes a reasonable effort to give the disclosing party as much advanced notice of the same as may be practicable or permitted in the circumstances of such disclosure. 

Part 13: Liability 

13.1 Absolute Cap on Liability. The maximum, aggregate liability of ScaffPlan and/or any Third Party ScaffPlan for any claims howsoever arising out of or relating to this Agreement or any of the Services, Software, system, database, support or other material furnished or to be furnished by ScaffPlan and/or any Third Party ScaffPlan under this Agreement or any schedules, including but not limited to ScaffPlan’s or any Third Party ScaffPlan’s entire liability in contract, tort (including negligence and breach of statutory duty) and including misrepresentation or otherwise in respect of all matters arising under or in connection with this Agreement will, in any event, be absolutely limited to the direct damages actually incurred by the Subscriber up to the amount paid by the Subscriber to ScaffPlan under this Agreement for the applicable Services, Software, support or other material during the preceding 12 month period. 

13.2 Exclusion of Indirect Damages. To the maximum extent permitted by the applicable law, in no event will ScaffPlan and/or any Third Party ScaffPlan be liable to the Subscriber, any authorised user or any other person deriving benefit from Subscriber, or any authorised user for any indirect damages of any kind, including without limitation, lost profits, lost savings, lost data, loss of contracts, business, revenue, goodwill, anticipated savings or other special, direct, indirect, punitive, consequential, or incidental damages arising out of or relating to this Agreement or any Services, Software, system, database, support or other material, furnished or to be furnished under this Agreement, even if ScaffPlan has been advised of the possibility of such loss or damage. 

13.3 Basis of the Bargain; Failure of Essential Purpose. The Subscriber acknowledges that ScaffPlan has set its Subscription fees and charges and any other fees and prices and entered into this Agreement in reliance upon the warranty disclaimer specified in clause 14 below and the limitation of liability set forth in this Agreement and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitation of liability specified in this Agreement will survive and apply even if the warranty disclaimer or any limitation of remedies is found to have failed of its essential purpose. 

13.4 Notwithstanding any other provisions contained herein, where any Act of Parliament implies any Term into this Agreement, and that Act avoids or prohibits provisions in a contract excluding or modifying such Term, that Term shall be deemed to be included in this Agreement, but ScaffPlan’s liability for breach of that Term shall be limited in one or more of the ways (at ScaffPlan’s option) permitted by the Australian Consumer Law. 

Part 14: Warranty 

14.1 In the event that the Subscriber discovers a material error which substantially affects the Subscriber's ability to use the Services and/or Software, System or Database and notifies ScaffPlan of the error within 30 days from the date of first access to the Services (the “Warranty Period”) ScaffPlan will at its sole option either use all reasonable endeavours to correct the erroneous part of the Services and/or Software, System or Database or (at its sole option) refund to the Subscriber the fee relating to the part of the Services (if not the whole) that does not comply with its specification of use PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Services and/or Software, System or Database not performed by ScaffPlan or caused by its incorrect use, abuse or corruption of the Services, Software, System or Database by the Subscriber. 

14.2 Warranty Disclaimer. To the extent permitted by the applicable law, the express warranties contained in this Agreement are in lieu of all other warranties, representations and guarantees of any kind by ScaffPlan. Except as expressly set forth in this Agreement, all Services, Software, System, Database, Support or other material (if any) are furnished by ScaffPlan and Accepted by the Subscriber “as is”. All other warranties, whether statutory, express or implied, are specifically excluded and disclaimed by ScaffPlan, including without limitation any implied or other warranties of or against: (i) interference with quiet enjoyment, non-infringement, workmanlike effort, quality, accuracy, timeliness, completeness, compatibility, integration, no encumbrances, no liens, title, merchantability or fitness for any particular purpose, (ii) that any Services, Software, System, Database, Support or other material will conform to any demonstration or promise by ScaffPlan or (iii) or that may arise through any course of dealing between the Parties. 

14.3 The Subscriber acknowledges that Third Party ScaffPlans are integrally involved in the provision of the Services, Software, System, Database and/or support and as such, ScaffPlan does not warrant that the Subscriber’s access to the Services, Software, support or other material provided hereunder will be uninterrupted, error-free or completely secure. 

14.4 Indemnification Disclaimer. To the extent permitted by the applicable law, ScaffPlan has no indemnification obligations to the Subscriber or any authorised user whether express, implied or statutory and that any such indemnification obligations are hereby expressly excluded and disclaimed. 

Part 15: Indemnity 

15.1 The Subscriber shall defend, indemnify and hold harmless ScaffPlan, its officers, directors and employees, agents and sub-contractors against (or with avoiding) any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Subscriber Data, Subscriber’s and Authorised Users’ breach of this Agreement including but not limited to breach of the ScaffPlan website Terms and conditions, Acceptable Use and Privacy provisions or infringement of ScaffPlan’s or third party patent, copyright, trademarks, database rights or other intellectual property rights. 

15.2 ScaffPlan will:

1. 1. Give the Subscriber prompt notice of any such claim; 
   2. Provide reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber's expense; and 
   3. Give the Subscriber sole authority to defend or settle the claim. 

Part 16: Term and Termination 

16.1 The Terms of this Agreement will start on the Commencement Date and continue thereafter for so long as the Subscriber continues to pay the Subscription fees and charges or until or unless terminated by either party giving to the other 6 months prior written notice or by notice in accordance with paragraph (b) below. 

16.2 Notwithstanding the Term of this Agreement, either party may by notice in writing to the other terminate this Agreement if any of the following events will occur:

1. 1. If the other party is in breach of any Term, condition or provision of this Agreement or required by the Applicable Law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from the first party; 
   2. If the Subscriber shall enter into any form of insolvency administration, including liquidation, bankruptcy, receivership, voluntary administration or otherwise.” 
   3. If there is a change of control of the Subscriber; 
   4. If the Subscriber suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business. 

16.3 In any event of termination of this Agreement, the Subscriber shall have 14 days to:

1. 1. To download its Subscriber Data and Authorised User Data from ScaffPlan’s system subject to such cost (if any) as ScaffPlan shall specify; and 
   2. Delete any and all copies of the Services, Software and any other Products and information provided by ScaffPlan during this Agreement and, if requested by ScaffPlan, the Subscriber shall certify to ScaffPlan in writing that such material has been destroyed. 

16.4 Termination, howsoever or whenever occasioned, will be subject to any rights and remedies the Parties may have under this Agreement or the Applicable law. 

16.5 ScaffPlan will be entitled to delete all Subscriber Data and Authorised User Data from its systems following 14 days of Termination howsoever occurring. 

16.6 Clause 4, 10–16 and 25 will survive termination of this Agreement.

Part 17: Assignment 

17.1 The Subscriber will not assign or otherwise transfer all or part of this Agreement, access to and/or use of the Services or the Software without the prior written consent of ScaffPlan. 

Part 18: Third Party Rights 

18.1 A person who is not a party to this Agreement will not have any rights to enforce any Term of this Agreement. 

Part 19: Non-Solicitation 

19.1 To the extent permitted by the applicable law, the Subscriber will not, for the duration of this Agreement, and for a period of six months following Termination, directly or indirectly induce or attempt to induce any employee of ScaffPlan who has been engaged in the provision, receipt, review or management of this Agreement, provision of support or other Services in connection with this Agreement to leave the employment of ScaffPlan. 

Part 20: Document Precedence 

20.1 In the event of any conflict of Terms between any “wet ink” signed version of this Agreement or its schedule(s) and shrink-wrap, click-wrap, click-through version, the “wet ink” signed version will take precedence.

Part 21: Force Majeure 

21.1 Neither ScaffPlan nor any Third Party ScaffPlan will be under any liability to the Subscriber in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of ScaffPlan or Third Party ScaffPlan which will include (but will not be limited to) acts of God, perils of the sea or air, fire, flood, drought, plagues, pandemics such as the global disruption caused by Covid-19, similar health or welfare issues, explosion, sabotage, cyber security attack, accident, embargo, riot, acts of war (declared or undeclared), terrorism, civil commotion or lockdown, including acts, declarations or similar authoritative pronouncements by any local, national or international governments and/or parliamentary or other authorities; energy outage, communication/internet failure, work to rule, overtime bars, strikes and lockouts and whether between either of the Parties hereto and any or all of its Authorised Users and/or any other employer and any or all of its Authorised Users and/or between any two or more groups of Authorised Users (and whether of either of the Parties hereto or any other employer). 

Part 22: Waiver 

22.1 Failure or neglect by either party to enforce at any time any of the provisions hereof will not be construed nor will it be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice either party’s rights to take subsequent action. 

Part 23: Headings 

23.1 The headings of the Terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the Terms and conditions of this Agreement. 

Part 24: Severability 

24.1 In the event that any of this Agreement, conditions or provisions will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such Term, condition or provision will to that extent be severed from the remaining Terms, conditions and provisions which will continue to be valid to the fullest extent permitted by the Applicable Law.

Part 25: Notices 

25.1 All notices to or by the respective parties to this Agreement will be in writing in the English language and addressed as follows: 

ScaffPlan

Address: 8-12 Webb Dr, Mount St John QLD 4818 Australia

Email: info@scaffplan.com

or to such other contact, address or email address as the respective parties hereto may hereafter specify to the other in writing. 

25.2 Notices will be deemed to have been duly given in the following circumstances: (i) if delivered by hand to the above recipient contact, on the day of delivery, (ii) if posted/mailed by recorded delivery post/mail (or airmail if appropriate to the location of the parties), it will be deemed received on the third working day after the date of posting/mailing, (iii) if sent by email it will be deemed received on the first working day following such sending, provable by a valid confirmed email from that contact party or email acknowledgement that the email has been opened/received. 

Part 26: Entire Agreement and Amendments 

26.1 This Agreement supersedes any arrangements, understandings, promises or Agreements made or existing between the parties hereto prior to this Agreement, and constitutes the entire understanding between the parties hereto. Except as otherwise provided herein, no addition, amendment to, or modification of, this Agreement shall be effective unless it is in writing and signed by, and on behalf, of both parties. 

Part 27: Applicable Law 

27.1 The parties hereby agree that this Agreement shall be construed in accordance with the law in force in the State of Queensland, Australia.

Annexure “A”: Acceptable Use Policy

Neither you nor those that access the Software through you may use the Software: 

1. 1. In a way prohibited by law, regulation, governmental order or decree; 2. to violate the rights of others; 
   2. To try to gain unauthorized access to or disrupt any service, data, account or network by any means; 
   3. To spam or distribute malware; 
   4. In a way that could harm the Software or impair anyone else’s use of them;
   5. or for any high-risk use (where failure or fault of the Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage). 

You are prohibited from violating or attempting to violate the security or integrity of the Software. Any such violation may result in criminal and civil liabilities against you. We will investigate any alleged violations, and, if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations. Violations of the security or integrity of our System include, without limitation, the following: 

1. 1. Logging into a server or account that you are not authorised to access; 2. accessing data or taking any action to obtain Services not intended for or contracted by you for your use; 
   2. Attempting to probe, scan, or test the vulnerability of any part of the Software, subsystem or network; 
   3. Tampering, hacking, modifying or otherwise corrupting or breaching security or authentication measures without proper authorisation; and 
   4. Transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots, malware, spyware or other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing the functionality, operation or integrity of the Software or any websites hosted on or otherwise using the Software; 
   5. Inferring with, intercepting or expropriating any part of the Software, data, material or information; or 
   6. Inferring with service to any user, host, or network including, without limitation, by means of overloading, "flooding", "mailbombing", attacking or "crashing" any part of the Software.

Annexure “B”: Acceptance of Agreement

Before you become the Subscriber which will enable you or your Employer/Organisation that you warrant to be authorised to represent, to access and use the Services which you have selected for your purposes, carefully read the full Terms and conditions of this Agreement. By accepting you are consenting to be bound as the Subscriber or bind your employer/organisation as the Subscriber that you warrant to be authorised to represent, these Services and the Software which may be required for their access and use. 

If you do not agree to all of the Terms of this Agreement or do not have the authority to bind your employer or organisation or are otherwise barred from entering into a binding Agreement or (if applicable) you do not have the appropriate skill to use the Services, do not accept, and do not attempt to access or use the Services. 

This Agreement is between ScaffPlan (“ScaffPlan”, “Us” or “We” which expression shall be deemed to include its successors, subsidiaries, agents and assigns) and You, the “Subscriber”.

By accepting you automatically consent and agree to the full Terms and conditions of this Agreement and become bound as the “Subscriber” with us. 

The parties agree that by you, the Subscriber, accepting this Agreement, both parties agree that such method of acceptance and/or signature shall be equally conclusive of their intention to be bound by the Terms and conditions of this Agreement as if signed with the manuscript signature of both parties. 

All linked Terms and conditions referred to in this Agreement are deemed to have been read, understood and are also being Accepted when you/Subscriber accept this Agreement.