These Terms and Conditions (the “Agreement”) is and entered into, as of the date in which the Service and the Software is subscribed to by the Customer, between:
Estimaster Pty Ltd, a company organised under the laws of Western Australia, having its principal place of business at the following address: PO Box 577, South Fremantle WA 6162, (the “Vendor”);
and
You, the user who accepts this Agreement, (“You”, “Your” or the “Customer”).
The Vendor and Customer may be referred herein individually as a “Party” and collectively as the “Parties”.
1. Introduction
This Agreement, including any document referenced to, establishes the Terms and Conditions under which the Vendor will provide the use of the Software to the Customer by Subscription. By purchasing a Subscription and using the Service and the Software, Customer adheres to these Terms and Conditions.
2. Definitions
“Auto-Renew Date” means the day after the expiration of the free 14-day trial.
“Estimaster” is the software quoting program that allows you to invoice quickly and accurately provided by the Vendor.
“Services” means the Vendor’s technical support provided to the Customer under this Agreement set out in clause 9 below.
“Software” means the executable computer programs and web-based program, the source code and any related printed, electronic and online documentation and any other files that may accompany the product, provided to the Customer for use under this Agreement otherwise known as Estimaster.
“Order Form” means the website form by which the Customer expresses acceptance of this Agreement and payment of the Subscription.
“Data” means information and data submitted by or on behalf of Customer to Vendor for incorporation or use in the Software including quotes, estimates, rates, offers, amounts, work orders, task management, key dates and deadlines, materials database, leads, supplier lists or similar.
“Subscription” means the subscriptions You purchase under the Order Form for Your use of the Software and Support Services in accordance with this Agreement.
“Subscription Fee” means the amount set out in the Website plans page.
“Subscription Period” means either one calendar month or one year, depending on which plan You choose on the Order Form.
“Website” means https://estimaster.au/
3. Term
The term of this Agreement will begin when the Customer completes the Order Form and will last as long as the Subscription Period lasts.
4. Acceptance
All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Customer (“Acceptance”) by clicking on the accompanying check box on the Order Form by the Customer.
All terms and conditions set forth in the Order Form are deemed incorporated into this Agreement by reference.
5. License
a) Under this Agreement the Vendor grants to the Customer a non-exclusive, revocable and non-transferable license (the “License”) to use the “Software” for the duration of the Subscription Period.
b) Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software.
c) This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
d) The rights and obligations of this Agreement are personal rights granted to the Customer only. The Customer may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity.
e) Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
6. Subscription
a) Following the expiration of the 14 calendar day free trial period, the Customer will pay the Subscription Fee for the Subscription Period in advance (the “Subscription”).
b) The Subscription Fee depends on the subscription plan selected by You in the Order Form. It is for either a one month period or a yearlong period, and entitles You to access and use the Software for that period of time only.
c) The amount of the Subscription Fee is specified on the Website and on the Order Form and can vary from time to time as determined by the Vendor in their sole discretion.
d) The Vendor reserves the right to cancel the use of the Services and Software in case of non-payment or late payment by the Customer.
e) The Customer acknowledges that the paid Subscription is non-refundable.
7. Auto-renew of the Subscription
Monthly Plan
a) The Subscription and Subscription Fee auto-renews each month for the next Subscription Period on the day following the expiration of the 14 days free trial period (Auto Renew Date).
b) The Auto Renew Date is the date each month that the Subscription auto renews and is the same each month whether it falls on a weekday or weekend day.
Yearly Plan
c) The Subscription and Subscription Fee auto-renews each year for the next Subscription Period on the day following the expiration of the 14 days free trial period (Auto Renew Date).
d) The Auto Renew Date is the date each year that the Subscription auto renews and is the same each year whether it falls on a weekday or weekend day.
General
e) If the Customer wishes to discontinue use of the Software, access to the software will automatically terminate upon the expiration of the Subscription Period that the Customer has paid a Subscription Fee for.
f) A customer can cancel a Subscription at any time by emailing the Vendor but will have access to the Software for the remainder of the paid up Subscription Period.
g) The onus of cancelling any unwanted Subscription before the Auto Renew Date is borne by the Customer.
h) The Vendor, in its sole discretion, may agree to refund a Customer if they did not intend to renew the Subscription but no other refunds are permitted due to Customer change of mind or dissatisfaction with the Software, Services or otherwise.
i) Failure to comply with any of the terms under the Auto-renew of the Subscription section will be considered a material breach of this Agreement.
8. Customer Obligations
a) Acceptable Use
The Customer shall be solely responsible for its actions and the actions of its users while using the Software. The Customer acknowledges and agrees:
i. To abide by all local, state, national, and international laws and regulations applicable to the Customer’s use of the Software, including, without limitation, the provision and storage of any Data;
ii. Not to use, send or store data on or to the Software which violates the rights of any individual or entity established in any jurisdiction;
iii. Not to interfere or disrupt networks connected to the Software or interfere with other ability to access or use the Software;
iv. That it may not decompile, disassemble, reverse engineer or otherwise attempt to obtain the source code used in the Software in whole or in part; and
v. To use the Software only in accordance with this Agreement.
The Customer acknowledges and agrees that the Vendor neither endorses the contents of any Customer communications or Data, nor assumes any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.
The Vendor, in its discretion, may remove, in its reasonable belief, any violating content posted or stored using the Software or transmitted through the Software, without notice to the Customer. Notwithstanding the this, the Vendor does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Data or any other information or data input into or stored in the Software for completeness, integrity, quality, accuracy or otherwise. The Customer shall be responsible and liable for the completeness, integrity, quality, accuracy, legality, reliability, and appropriateness of the Data.
9. Vendor Obligations
a) General
The Software will be hosted by the Vendor and will be provided to the Customer for use during the term of the Customer’s Subscription.
b) Availability and Support
By its nature, Software is not uninterrupted or error-free and so there may be times when the Software is not available or does not work properly due to technical difficulties.
The Customer accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
Subject to the terms and conditions of this Agreement, the Vendor will use reasonable efforts to make the Software available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments:
i. Planned downtime (with regard to which the Vendor will use commercially reasonable efforts to provide at least 24 hours advance notice);
ii. Routine maintenance times as reasonably specified by the Vendor;
iii. Any unavailability caused by circumstances beyond the Vendors control or of Force Majeure as described below;
iv. Certain enhancements to the Software made generally available at no cost to all subscribing customers during the term of this Agreement will be made available to the Customer at no additional charge, subject to any conditions that may be required by the Vendor. However, the availability of some new enhancements or modules to the Software may require the payment of additional fees, and the Vendor will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. This Agreement will apply to, and the Software includes, any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the Software subsequently provided by the Vendor to the Customer hereunder.
c) Support
The Vendor will use all reasonable efforts to provide technical support to the Customer via both web-chat and electronic mail on weekdays but this cannot be guaranteed.
d) Passwords and Security
The Customer will create user logins and passwords in order to enable access and use of the Service at the commencement of the Subscription Period. The Customer shall be responsible for the confidentiality of user logins and passwords. The Customer is solely responsible for any and all access and use of the Service that occurs using logins and passwords. The Customer agrees to immediately notify the Vendor of any unauthorised use of any account or login and password or any other breach of security known to Customer. The Vendor shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this clause.
The Vendor will take all necessary measures and efforts standard in its industry to prevent the compromise of Data by third parties and the security breach related to the Services (“Security Breach”). However, the Customer acknowledges that a Security Breach may occur, and in such exceptional cases, the Vendor will immediately notify the Customer and take all necessary measures required by applicable law and regulations. The Customer acknowledges that in the event of a Security Breach, the Vendor’s liability shall be limited to the maximum extent permitted by applicable law, and shall in no event exceed a three-month amount paid by the Customer for the Subscription.
10. Limitation of Liability
The Service and the Software are provided by the Vendor and accepted by the Customer “as is”. The Vendor’s liability will be limited to an amount that cannot exceed the price of a three-month subscription paid by the Customer.
The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Customer arising out of the use or failure to use the Software.
The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Customer.
11. Warranties and Representations
The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright or applicable statute.
12. Confidentiality
The Vendor hereby acknowledges and agrees that the Customer possesses certain non-public Confidential Information (as hereinafter defined) and may also possess Trade Secret Information (as hereinafter defined) (collectively the “Proprietary Information”) regarding their business operations and development. The Parties agree that the Proprietary Information is secret and valuable to the Customer and that the Vendor may have access to the Customer’s Proprietary Information. Each of the Parties desires to maintain the secret and private nature of any Proprietary Information given.
“Confidential Information” refers to any information which is confidential and commercially valuable to Customer. The Confidential Information may be in the form of documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs or other oral or written knowledge and/or secrets and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property and/or finance or any other information which is confidential and commercially valuable to the Customer.
Confidential Information may or may not be disclosed as such, through the use of the Software, but is to be considered any information which ought to be treated as confidential under the circumstances through which it was disclosed.
Confidential Information shall not mean any information which:
a) is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Vendor;
b) is already known, through legal means, to the Vendor;
c) is given by the Customer to third parties, other than the Vendor, without any restrictions;
d) is given to the Vendor by any third party who legally had the Confidential Information and the right to disclose it; or
e) is developed independently by the Vendor and the Vendor can show such independent development.
“Trade Secret Information” shall be defined specifically as any formula, process, method, pattern, design or other information that is not known or reasonably ascertainable by the public, consumers, or competitors through which, and because of such secrecy, an economic or commercial advantage can be achieved.
The Vendor hereby agrees to:
a) Not disclose the Proprietary Information via any unauthorised means to any third parties throughout the duration of this Agreement and the Parties’ relationship with each other;
b) Not disclose the Proprietary Information via any unauthorised means to any third parties forever after the termination of this Agreement or to the maximum extent possible under applicable law.
c) Not use the Proprietary Information for any purpose except those contemplated herein or expressly authorised by the Customer.
13. Dispute Resolution
If any dispute arises under this Agreement or in connection with anything to do with the subject matter of these terms and conditions, such dispute must first be the subject of a mediation between the parties before a mediator agreed between the parties or otherwise appointed by the Institute of Arbitrators and Mediators Australia. The cost of the mediator shall be borne in full by the party raising the dispute.
The good faith participation in the mediation is a pre-condition of any litigation, except for applications for urgent, summary or injunctive relief.
The Customer agrees to indemnify the Vendor from any legal and court costs on an indemnity basis in the event of any unsuccessful litigation bought against the Vendor by the Customer.
14. Termination
This Agreement may be terminated and the License forfeited where the Customer has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Customer will be suspended from accessing the Services and using the Software.
15. Force Majeure
The Vendor will be free of liability to the Customer where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.
16. Governing Law
This Agreement will be enforced or construed according to the laws of Western Australia. The Parties to this Agreement submit to the jurisdiction of the courts of Western Australia for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement.
17. General Provisions
Any policies posted on the Vendor’s Website (the “Policies”) are deemed incorporated into this Agreement by reference herein. By accepting this Agreement, you confirm that you also accept all the Policies posted on the Vendor’s website/software.
Except as otherwise specified in the Agreement, all notices hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery on the Vendor, (ii) two business days after sending by e-mail to contact@estimaster.com.au
This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Customer.
You agree that in addition to Data, certain personal information (which may include your name, address, email address, year of birth, postcode and mobile/telephone number) may be collected and stored by us and used to, amongst other things, manage your Subscription, communicate with You about your Subscription and to notify You of any associated customer offers or benefits, future subscriptions and/or other goods and services that we consider You may be interested in, unless you opt out of these communications.
Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
These terms and conditions are protected by Copyright Law and are owned by Estimastor Pty Ltd. They cannot be reproduced, copied or used elsewhere in part or in whole.