This agreement is made between:
Progressclaim.com Pty Ltd ACN 115 789 065 with its registered office situated at Level 6, 350 Collins St, Melbourne VIC 3000 Australia (hereinafter “Progressclaim.com”)
The “User” means that legal person whose full legal name and physical address which is specifically identified in the registration for the User Code on the Web Site (hereinafter “the User”)
- A.Progressclaim.com owns the Web Site and is the provider of the Services.
- B.The User has requested to use the Web Site and the Services.
- C.The Parties have agreed for Progressclaim.com to:
- (a)grant a license to the User to use the Web Site; and
- (b)provide the User with the Services:
- —both upon the terms and conditions of this Agreement.
It is agreed as follows
1.Definitions and Interpretation
In this Agreement, the following definitions shall apply, unless there is a contrary intention:
- (a)“Agreement” means this agreement;
- (b)“Confidential Information” of a Party means all personal, organisational, technical, business and financial information, know-how, trade secret(s) and all other commercially valuable information of that Party, in whatever form and of whatever description, which that Party claims is confidential to itself and over which it has full control and includes all other such information that may be in the possession of that Party, but does not include information which:
- (i)is already in the public domain; or
- (ii)hereafter becomes part of the public domain, through no fault of the receiving Party; or
- (iii)is received by the receiving Party on a non-confidential basis from a third party lawfully entitled to disclose the same; or
- (iv)is rightfully known by the receiving Party (as evidenced by its written record) prior to the date of first disclosure to it hereunder; or
- (v)is independently developed by an officer or employee of the receiving Party who has no knowledge of such information;
- (c)“Commencement Date” means either:
- (i)the date upon which the User pays the Service Fee; or
- (ii)the date upon which the User uses or clicks the “I ACCEPT” interactive function button, which is displayed on the Web Site; or
- (iii)the date upon which the User first uses the Web Site for the Purpose:
- —whichever is the first to occur;
- (d)“End Date” means either:
- (i)the date upon which the User ceases to pay the Service Fee; or
- (ii)the date upon which the User uses or clicks the “I TERMINATE” interactive function button and which is displayed on the Web Site:
- —whichever is the first to occur;
- (e)“Force Majeure Circumstance” means in respect of a Party, any circumstance or event which, despite using all reasonable endeavours, the Party is unable to control, including without limitation, any act of God, flood, fire, damage caused by lightening, storm or tempest, floods, industrial strikes or lock outs or other industrial disturbances, acts of war, civil disturbance or terrorism or any policy enactments of any government;
- (f)“GST” means any tax imposed on the supply of goods or services (including without limitation the supply of Intellectual Property Rights) under the laws of the Commonwealth of Australia or of any Commonwealth of Australia State and Territory law, including without limitation under the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) or under the laws of any other applicable jurisdiction;
- (g)“Intellectual Property Rights” means all statutory, proprietary and other rights throughout the World in respect of patents (including without limitation, patents for inventions, innovations, improvements, additions or utility), registered and unregistered trade marks (including service marks), registered designs, circuit layouts, eligible layouts, copyrights (both existing and future copyrights), confidential information (including trade secrets and know-how) and all other rights with respect to intellectual property as defined by Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
- (h)“Moral Rights” means those rights that are accorded to authors as defined under Part IX of the Copyright Act 1968 (Cth), including without limitation:
- (i)the right of attribution of authorship;
- (ii)the right not to have a work falsely attributed; and
- (iii)the right of integrity of authorship:
- —and any other equivalent right in any jurisdiction throughout the World;
- (i)“Party” means either party to this Agreement and “Parties” shall mean both of them;
- (k)“Purpose” means for the purpose of Progressclaim.com providing the Services to the User;
- (l)“Services” means the web-site contract payment management services to be provided by Progressclaim.com and which are specifically defined in the Schedule;
- (m)“Service Fee” means service fee and which is specified in the Subscription Plan;
- (n)“Subscription Plan” means the financial plan and time periods of which the User has agreed to pay Progressclaim.com for the Services under this Agreement and which is separately displayed on the Web Site;
- (o)“Trade Mark” means the Australian registered and/or Australian unregistered trade mark of the User;
- (p)“User Content” means all information (including without limitation, all numerical, literary and financial data and material), the User Code and all literary works (including all written reports, texts and graphics) and all other subject matter which is originally created by the User for the Purpose and first uploaded by the User onto the Web Site;
- (q)“User Code” means the User’s specifically authorised director, officer or employee (as the case may be) numerical and/or literary code and password for the purpose of accessing the Web Site under this Agreement and where the context requires, includes its personal name, IP address, mobile telephone, land line telephone number, street address and e-mail address;
- (r)“Web Site” means the collection of web page(s) having a specific hypertext transfer protocol (“HTTP”) address and accessible through the internet and which is situated at payapps.com, including without limitation: all “look and feel” and functionality (including all graphic user interfaces, tool bars and interactive click buttons); all software (including all object code, source code and meta-tags); all literary works (including financial forms, financial spread-sheets and tables, scripts, all numerical text, financial and business data, advertisements, including third party advertisements); all artistic works (including photographs and drawings), music works, sound recordings (including audio streaming), cinematographic films (including video and digital images); all registered and unregistered trade marks; this Agreement; the Subscription Plan; the Privacy Statement; and the copyright notices; and any other legal notices; but in all cases excluding both the Web Site Content and the User Content;
- (s)“Web Site Content” means all information (including without limitation, all numerical, literary and financial data and material) and all literary works (including all written reports, texts and graphics) and all other subject matter which is either:
- (i)created and uploaded onto the Web Site by Progressclaim.com as a result of using the User Content for the Purpose; or
- (ii)created and uploaded onto the Web Site by any third party users as a result of using the User Content for the Purpose;
- (t)“World” means all countries of the world
In this Agreement, except where the context indicates to the contrary:
- (a)Words importing the singular shall include the plural (and vice versa); and
- (b)Words denoting a given gender shall include all other genders; and
- (c)The word “person” includes a reference to an individual, a body corporate, a joint venture, partnership, agency, trust or other body; and
- (d)Headings are for convenience only and shall not affect the interpretation of this Agreement; and
- (e)All monetary amounts shall be deemed to be in Australian currency; and
- (f)A reference to any statute and/or regulation or any provision of a statute and/or regulation, includes a reference to that statute and/or regulation, as amended, re-enacted, modified, replaced or substituted; and
- (g)A reference to a “day” in this Agreement is a reference to any calendar day and not necessarily a business day; and
- (h)A reference to a “document” in this Agreement, includes a reference to a document in hard copy, electronic or digital form.
1.3Recitals and Schedule
The Schedule and the Recitals form part of this Agreement.
2.Commencement and Term
This Agreement and the Services will both commence on the Commencement Date and will continue until the End Date, subject to earlier termination under clause 20.
3.Web Site Services
Progressclaim.com hereby agrees to provide the User with the Services in accordance with Subscription Plan and otherwise in accordance with the terms and conditions of this Agreement.
4.The User’s Role
- 4.1The User confirms and agrees that it has registered and received the User Code from Progressclaim.com using the Web Site.
- 4.2The User agrees to upload the User Content to the Web Site to the maximum extent necessary in order for Progressclaim.com to properly provide the Services under the Agreement.
- 4.3The User agrees to upload the User Content on the Web Site only using its specific User Code.
- 4.4The User agrees to:
- (a)Use the User Code under this Agreement entirely at its own risk; and
- (b)Immediately notify Progressclaim.com (whether by email or telephone) of any third party unauthorised use or access to the User Code.
5.Grant of License to Use the Web Site
- 5.1Subject to the User complying with all of its obligations under this Agreement, including the payment of the Service Fee, Progressclaim.com hereby grants to the User and the User hereby accepts from Progressclaim.com, a royalty-free, non-exclusive, non-transferable and revocable licence throughout the World for the Purpose to:
- (a)access and use the Web Site; and
- (b)upload the User Content onto the Web Site; and
- (c)access the Web Site Content.
- 5.2The User agrees that Progressclaim.com’s grant of license to the User to the Web Site under clause 5.1 is subject to the following conditions:
- (a)that the User only uses its registered User Code; and
- (b)that the User has no rights to use the Web Site for any other purpose other than for the Purpose.
- 5.3The User has the right to grant sub-licenses of its rights granted under clause 5.1 to any of its directors, officers or employees for the purpose of this Agreement, provided that those authorised directors, officers or employees agree to be personally bound by the User’s obligations under this Agreement.,/li>
- 5.4The Parties further acknowledge and agree that:
- (a)The User has no rights to grant any sub-license to any third parties other than in accordance with clause 5.3; and
- (b)That any sub-licensee contemplated under clause 5.3, have no rights to grant any further sub-licenses of its rights to any third parties in any way whatsoever.
6.Ownership of the Web Site
The Parties confirm and agree that ownership of all title, rights and interest in and to the Web Site (including all Intellectual Property Rights throughout the World subsisting therein) remain vested solely in Progressclaim.com.
7.Ownership of Web Site Content
- 7.1The Parties agree that ownership of all title, rights and interest in and to the Web Site Content (including all Intellectual Property Rights throughout the World subsisting therein) will remain vested solely in Progressclaim.com, at the time of creation.
- 7.2The User agrees to execute any further documents (including executing any written assignments in favour of Progressclaim.com) and do all such further acts and things as may be necessary, to ensure the transfer of ownership to Progressclaim.com of all title, rights and interest in and to the Web Site Content (including all Intellectual Property Rights throughout the World subsisting therein), contemplated by clause 7.1, at the cost of Progressclaim.com.
8.Ownership and Grant of Licence to User Content
- 8.1The Parties agree that ownership of all title, rights and interest in and to the User Content (including all Intellectual Property Rights throughout the World subsisting therein) will remain vested solely in the User, at the time of creation.
- 8.2The User hereby grants to Progressclaim.com and Progressclaim.com hereby accepts from the User, a royalty-free, non-exclusive, non-transferable, perpetual and irrevocable license throughout the World, to use, reproduce, adapt and communicate the User Content on the Web Site for the Purpose.
The User hereby unconditionally, irrevocably, genuinely and comprehensively consents in favour of Progressclaim.com (and all of its successors, assigns and licensees) for Progressclaim.com to use, reproduce, adapt and communicate (as defined under the Copyright Act 1968 (Cth) and any other equivalent legislation throughout the World) the User Content and the Web Site Content on the Web Site (as the case may be) without reference to the User as the author (if any) in any way whatsoever, which but for this consent under this clause 9, would constitute an infringement of the User’s Moral Rights.
- 10.1The User hereby makes the following warranties to Progressclaim.com:
- (a)That the User will use its best endeavours to upload its User Content to the Web Site to the maximum extent necessary in order for Progressclaim.com to properly provide the Services; and
- (b)That all of the User Content uploaded to the Web Site by the User under this Agreement is accurate, suitable, complete and current for the Purpose; and
- (c)That all of the User Content uploaded to the Web Site by the User under this Agreement is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site; and
- (d)That all of the User Content uploaded to the Web Site by the User under this Agreement will not infringe any third party’s Intellectual Property Rights in any part of the World; and
- (e)Without limiting the generality under clause 10.1(d), that all of the User Content uploaded to the Web Site by the User under this Agreement will not in any way breach any civil or criminal law of the Commonwealth, State and any Territory of the Commonwealth of Australia and any criminal or civil law in any other country of the World.
11.Subscription Plan and Service Fee
- 11.1The Subscription Plan is herein incorporated into this Agreement by reference.
- 11.2The User agrees to pay Progressclaim.com the Service Fee in the time and manner specified in the Subscription Plan.
- 11.3For the avoidance of doubt of clause 11.2:
- (a)The Service Fee must be paid by the User to Progressclaim.com monthly in arrears, after the provision of the Services by Progressclaim.com for that month; and
- (b)Progressclaim.com will issue a Tax Invoice to the User by e-mail on a monthly basis upon completion of the Services for that completed month.
- 11.4No refund of any part of the Service Fee will be paid to the User if in the event of earlier termination of this Agreement by either Party.
- 12.1In respect of each Party’s Confidential Information, the other Party agrees to:
- (a)keep it confidential; and
- (b)use it on the Web Site only for the Purpose; and
- (c)not make any copies of it from the Web Site other than strictly required for the Purpose; and
- (d)limit its disclosure to those of the other Party’s directors, officers and employees, on a need to know basis for the Purpose; and
- (e)not disclose it to any third party other than those persons referred to under clause 12.1(d) above, unless with the prior written consent of the first mentioned Party; and
- (f)(when applicable) mark each document embodying the first mentioned Party’s Confidential Information, with the following notation:
“Confidential Information and Copyright © of (the name of the first mentioned Party);”
- 12.2Each Party’s obligations under this clause 12 will survive expiration or earlier termination of this Agreement and will continue until such time as each part of the other Party’s Confidential Information lawfully becomes part of the public domain.
13.Changes to these Terms and Conditions
- 13.1If Progressclaim.com decides in its sole discretion to amend any term or condition of this Agreement, Progressclaim.com must immediately post the written notice to the User of such amendments and display such amendments on the Web Site (the “Amendments”) including by way of e-mail to the User.
- 13.2The User must immediately request termination of the Services under this Agreement, if any of the Amendments are unacceptable to the User.
- 13.3Upon receipt of the Amendments, if the User continues to use the Web Site, the User is deemed to have agreed to the Amendments for the purpose of this Agreement, commencing from the date of the receipt of the Amendments under this clause 13.
14.Use of a Party’s Trade Mark and Corporate Name
- 14.1For the term of this Agreement, the User hereby grants to Progressclaim.com and Progressclaim.com hereby accepts from the User, a royalty-free, non-exclusive, non-transferable and revocable licence throughout the World to use the User’s Trade Mark on the Web Site.
- 14.2For the avoidance of doubt:
- (a)Progressclaim.com will have no other rights granted to use the Trade Mark for any other purpose other than provided under clause 14.1.
- (b)Progressclaim.com will have no rights to grant sub-licences of its rights granted under clause 14.1 in any way whatsoever.
- 14.3All goodwill associated with the use of the Trade Mark by Progressclaim.com under this Agreement, will accrue immediately for the benefit of the User and will be solely owned by the User at the time of creation.
- 14.4The User will have the right to use the name or corporate logo of Progressclaim.com in relation to this Agreement, subject to Progressclaim.com’s prior written consent and any other conditions attached to such consent.
15.User’s Web Site Behaviour
- 15.1Without limiting the generality of all of the User’s obligations under this Agreement, the User agrees that it must not undertake or procure any third party to do any of the following:
- (a)Removing or obscuring, by framing or otherwise, any portion of the Web Site, the Web Site Content and the User Content; and
- (b)Hyperlinking the Web Site, the Web Site Content and the User Content to a third party website; and
- (c)Communicating over the Internet (including by way of e-mail) any part of the Web Site, the Web Site Content and the User Content to any third party not permitted by this Agreement; and
- (d)Framing, mirroring, scraping or data-mining the Web Site, the Web Site Content and the User Content; and
- (e)Leaving the computing devices (including without limitation, the computer terminal, iPad™, iPhone™, any other smart phone or tablet) unattended whilst accessing the Web Site; and
- (f)Allowing the User’s unauthorised directors, officers, employees, agents and consultants to access the Web Site using the User Code;
- (g)Using a third party’s user code to access the Web Site; and
- (h)Creating a false identity on the Web Site; and
- (i)Uploading any User Content that is defamatory, pornographic or obscene; and
- (j)Any other internet based activity, which, in the sole discretion of Progressclaim.com, is not in the best interests of the proper functioning, performance and integrity of the Web Site.
- 16.1Progressclaim.com hereby warrants to the User that:
- (a)Progressclaim.com will provide the Services on an “as is,” “as available” basis; and,
- (b)Progressclaim.com provides the Web Site to the User on an “as is,” “as available” basis.
- 16.2Subject to clause 16.1, Progressclaim.com has not made and hereby excludes all other warranties, conditions, terms and undertakings whether express or implied, written or oral, statutory or otherwise, including any implied warranty of merchantability or fitness for purpose, in respect of the Services, the Web Site and the Web Site Content. To the maximum extent permitted by the laws of the Commonwealth of Australia or of any State or Territory of Australia having jurisdiction, any conditions or warranties imposed by such legislation are hereby excluded. In so far as liability under such legislation may not be excluded, such liability is limited at the exclusive option of Progressclaim.com to:
- (i)the re-performance of the Services; or
- (ii)the payment of the costs of having the Services being re-performed again.
- 16.3Without limiting the generality of this clause 16, Progressclaim.com will not be liable for any special, indirect or consequential damages arising under or pursuant to this Agreement.
- 16.4Without limiting the generality of this clause 16, Progressclaim.com hereby excludes the following warranties:
- (a)That the Web Site will be operating continuous and uninterrupted; and
- (b)That the Web Site and Web Site Content is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site; and
- (c)That the Web Site and the Web Site Content will not infringe any third party’s Intellectual Property Rights in any part of the World; and
- (d)That the User’s software, computing devices and Internet service, will be fit for purpose for use with the Web Site.
- (e)That the Web Site and the Services will satisfy all of the User’s applicable contractual, legal and statutory obligations, including without limitation, all those statutory obligations under the Building and Construction Industry (Security of Payments) Act in any State or Territory of the Commonwealth of Australia.
- 16.5The User hereby releases and indemnifies and continues to release and indemnify Progressclaim.com (and all of its respective directors, officers, employees, agents, contractors, sub-contractors and representatives) all individually and collectively referred to in this clause 16.5 as the “Indemnified Party”) from and against all actions, claims, proceedings and demands, which may be brought by any person whether against the Indemnified Party or both the User and the Indemnified Party, either on their own or jointly with third parties, in respect of any loss, injury or damage (whether personal, property, financial, consequential financial loss or infringement of any Intellectual Property Rights throughout the World) howsoever arising, that the Indemnified Party may suffer, incur or sustain as a result of:
- (a)the User’s illegal, negligent acts or omissions in relation to this Agreement; or
- (b)the User’s breach of any of its obligations under this Agreement; or
- (c)the User’s use of the User Code; or
- (d)the User accessing and using the Web Site; or
- (e)the User uploading the User Content onto the Web Site; or
- (f)the User accessing the Web Site Content; or
- (g)Progressclaim.com’s use of the Trade Mark:
- —and from and against all damages, costs and expenses incurred or sustained, in defending or settling any such actions, claims, proceedings or demands.
- 16.6The User hereby warrants to Progressclaim.com that:
- (a)It owns all title, right and interest in and to the Trade Mark (including all Intellectual Property Rights throughout the World subsisting therein);
- (b)To its actual knowledge, information and belief as of the Commencement Date and after making all enquiries, the use of the Trade Mark by Progressclaim.com will not infringe any third party’s Intellectual Property Rights in any part of the World.
- 16.7Whilst Progressclaim.com provides the Services and the Web Site under this Agreement, the User must seek independent legal and accounting advice to satisfy itself that it has complied with all applicable contractual, legal and statutory obligations, including those statutory obligations under the Building and Construction Industry (Security of Payments) Act in any State or Territory of the Commonwealth of Australia.
- 16.8This clause 16 will survive expiration and earlier termination of this Agreement.
17.Third Party Proceedings
- 17.1Each Party must immediately notify the other Party of:
- (a)any claim or allegation that the exercise of any of its rights under this Agreement constitutes an infringement of the rights, including the Intellectual Property Rights of any third party in any part of the World in respect of the Web Site, the Web Site Content and the Trade Mark; or
- (b)any third party’s actual infringement or threatened infringement of any of the Party’s rights, including any Intellectual Property Rights in any part of the World in respect of the Web Site, the Web Site Content and the Trade Mark:
- —that it becomes aware of.
- 17.2The Parties must confer as to what steps, if any, are to be taken against any person infringing any part of the Web Site, the Web Site Content and the Trade Mark.
- 17.3If Progressclaim.com decides to commence legal proceedings, Progressclaim.com will be responsible for all legal costs, damages and expenses incurred, sustained or awarded and will be solely entitled to any damages, account of profits or other compensation recovered by such applications or legal proceedings. The User must furnish all such necessary assistance in relation to those applications or legal proceedings, at the cost of Progressclaim.com.
- 17.4The terms and conditions of this clause 17 will survive expiration or earlier termination of this Agreement.
18.Good and Services Tax
- 18.1Any amount which is payable as a consequence of this Agreement, including the Service Fee is expressed exclusive of GST, unless expressly stated otherwise.
- 18.2If the User is a recipient of supply as defined by the law of GST under this Agreement, the User must reimburse Progressclaim.com in respect of GST (if any) payable on the Service Fee.
- 18.3The User must pay the GST (if any) to Progressclaim.com as a consequence of this Agreement.
- 18.4Notwithstanding clause 11, Progressclaim.com must provide the User with a Tax Invoice or other document which identifies clearly the amount of GST to be reimbursed to Progressclaim.com under this Agreement, so as to enable the User to obtain an input tax credit as defined by the law of GST.
- 19.1Where a Party is unable, wholly or in part, by any Force Majeure Circumstance to carry out any obligation under this Agreement and that Party:
- (a)gives the other Party prompt notice of that Force Majeure Circumstance, including reasonable particulars; and
- (b)uses all reasonable diligence to remove that Force Majeure Circumstance as quickly as possible:
- —that obligation is suspended so far as it is affected by the Force Majeure Circumstance during the continuance of that Force Majeure Circumstance and that Party shall be allowed a reasonable extension of time to perform its obligations.
- 19.2If the Force Majeure Circumstance continues for a period of one (1) month, the Parties will meet in good faith to achieve a satisfactory resolution to the problem.
- 19.3An obligation to pay money is not excused by a Force Majeure Circumstance.
- 20.1This Agreement and the Services may be immediately terminated by either Party (the “Terminating Party”) in its sole discretion without cause, by providing thirty (30) days advanced written notice to the other Party (the “Defaulting Party”).
- 20.2This Agreement and the Services may be terminated by either Party in its sole discretion (also the “Terminating Party”) by providing written notice to the other Party (also the “Defaulting Party”) where the Defaulting Party has committed a breach of any of its obligations under this Agreement and the Defaulting Party has not rectified the breach (where the breach is capable of remedy) within seven (7) days from the date of written notice by the Terminating Party to rectify the breach:
- —such termination to be immediately effective from the date of the first mentioned written notice.
- 20.3This Agreement and the Services may also be terminated immediately by either Party in its sole discretion (also a “Terminating Party”) by providing written notice to the other Party (also a “Defaulting Party”) on the happening of any one or more of the following events:
- (a)if the Defaulting Party breaches any of its obligations under this Agreement, where the breach is incapable of remedy; or
- (b)if the Defaulting Party is the subject of winding up (voluntary or otherwise) liquidation proceedings, whether voluntary or compulsory, otherwise than for the purpose of and followed by, a reconstruction, amalgamation or reorganisation; or
- (c)if the Defaulting Party has become insolvent, bankrupt or is subject to the appointment of a mortgagee, a receiver or manager or an inspector to investigate its affairs, enters into any arrangement or composition with its creditors generally, or is unable to pay its debts as and when they become due; or
- (d)if execution is levied upon all or any part of the assets of the Defaulting Party, except where the execution is contested in good faith within seven (7) days after it is levied, payment is made in full to the judgment creditor in question of all amounts owing to such judgment creditor:
- —such termination to be immediately effective upon receipt by the Defaulting Party of the first mentioned written notice.
- 20.4In the event of termination of this Agreement and the Services pursuant to clause 20.1 or 20.2 or 20.3:
- (a)each Party is entitled to retain all monies (including, if applicable, the Service Fee) received or paid prior to the date of termination; and
- (b)each Party must promptly pay the other Party any monies (including, if applicable, the Service Fee) outstanding, as at the date of termination; and
- (c)if the Defaulting Party is the User, the User must immediately deliver up to Progressclaim.com (as the Terminating Party) all written and electronic documents relating to all Web Site Content (and the Defaulting Party must not retain copies in any form) in its possession or control; and
- (d)each Party must maintain the confidentiality of the Confidential Information of the other Party in accordance with clause 12; and
- (e)the licence granted by the User to Progressclaim.com under clause 8 shall continue in perpetuity;
- (f)the licence granted by the User to Progressclaim.com under clause 14 shall terminate; and
- (g)Progressclaim.com must immediately remove the Trade Mark from the Web Site.
- 20.5Termination of this Agreement and the Services for any reason whatsoever:
- (a)is without prejudice to the rights of each Party to sue for and recover any fees, monies, or payments then due and to the rights of that Party in respect of any previous breach of any of the provisions of this Agreement; and
- (b)Does not relieve either Party of its respective obligations of confidentiality (clause 12) and risk management (clause 16) contained herein;
- (c)Clauses 6, 7, 8, 9, 10, 12, 16 and 20 will survive expiration or earlier termination of this Agreement.
- 20.6This clause 20 will survive expiration or earlier termination of this Agreement.
- 21.1Each Party must not commence any Court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute, unless it has complied with this clause 21.
- 21.2Any Party claiming that a dispute has arisen must notify the other Party in writing, giving details by express mail (the “Dispute”).
- 21.3During twenty-one (21) days after notice of the Dispute (the “Initial Period”) each Party must use its reasonable efforts to resolve the Dispute by good faith negotiation between the Parties.
- 21.4If the Parties are unable to resolve the Dispute within the Initial Period, each Party agrees that the Dispute must be referred to meditation at the request of either Party to:
- (a)a mediator agreed by the Parties; or
- (b)if the Parties are unable to agree on a mediator, within seven (7) days after the end of the Initial Period, a mediator nominated by the current President of the Law Institute of Victoria or its nominee.
- 21.5If the Parties fail to resolve the Dispute in accordance with clause 21.4, by thirty (30) days upon referral to the mediator, either Party is free to initiate proceedings in a Court of appropriate jurisdiction.
This Agreement is governed by and shall be construed in accordance with the laws of the State of Victoria. The Parties hereby irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of the State of Victoria and the Courts of Appeal.
The User must not assign, mortgage or charge or any of its rights, title and interest under this Agreement to any third party, unless it has obtained the prior written consent of Progressclaim.com, which may be withheld by Progressclaim.com in its absolute discretion.
A Party’s failure to exercise or delay in exercising any power or right, does not operate as a waiver of that power or right. The exercise of a power or right, does not preclude its future exercise or the exercise of any other power or right.
This Agreement may only be amended or modified by mutual written agreement of the Parties.
- 26.1Each word, phrase, sentence, paragraph and clause (a “Provision”) of this Agreement is severable
- 26.2If a Court determines that a Provision is unenforceable, illegal or void then the Court may sever that Provision. The Parties agree that the unenforceability, illegality or voidness of the severed Provision, will not affect the validity of the other Provisions of this Agreement.
- 27.1Any notice to be given by a Party to the other Party under this Agreement must be:
- (a)In writing; and
- (b)Directed to the recipient’s e-mail address specified in the User Code or the Web Site (as the case may be) with a read request receipt and delivery receipt option; and
- (c)Sent by e-mail to that e-mail address and which will be deemed to be duly given upon receipt of the request receipt and delivery receipt for the sender.
- 27.2Either Party will have the right to amend its Address for Notices under this clause 27.1, subject to prior written notice to the other Party.
- 27.3For the avoidance of doubt and without limiting the generality of clause 27.2, Progressclaim.com will have the right to amend its Address for Notices on the Web Site itself without further notice to the User.
Each Party is responsible for its own legal costs incurred in relation to the negotiation and settlement of this Agreement.
The Parties agree that this document does not create or evidence the relationship between them of partnership, joint venture, employer and employee, trust, agency or otherwise but that of independent contractors.
The User’s rights to the Web Site under this Agreement are subject to the Privacy Statement, which is incorporated herein by reference.
This Agreement contains the whole understanding of the Parties relating to its subject matter and it supersedes and cancels any and all representations, agreements, commitments, warranties and promises, made by the same Parties with respect to the same subject matter. Any purported representations, agreements, commitments, warranties and promises of the Parties not recorded in this Agreement are of no effect.
32.Legal Authority to Enter into Agreements
Without limiting the generality of Section 127 of the Corporations Act 2001 (Cth), the User warrants that the authorised director, officer or employee of the User who uses the User Code and enters this Agreement on the User’s behalf has the authority from the User to enter into this Agreement.
In the event of any inconsistency, the following items prevail over the other items from highest paramountcy to lowest paramountcy as herein presented:
- (a)The terms and conditions of this Agreement;
- (b)The terms and conditions of the Schedule;
- (c)The terms and conditions of the Subscription Plan; and
- (d)The terms and conditions of Privacy Statement;
- Utilising the Web Site, the services provides web-based, mobile smart phone, and tablet-enabled service model for collaborative claims preparation, submission, assessment and certification for relevant parties to the construction contract
- It is intended that the Web Site will provide the internet based means where all parties to the construction contract have access to the similar contract management system for the construction industry. It is intended to increase transparency, improve efficiency, save costs and minimise disputes.
- Specifically, the User will use the Web Site to: make and amend a new claim for payment; assess and certify a claim for payment.
- Progressclaim.com will provide relatively instant document preparation and distribution to enable businesses to assist fulfilling contract commitments and assist compliance with the applicable Building and Construction Industry Security of Payments Acts requirements throughout the States and Territories (if any) of the Commonwealth of Australia.
The User’s Responsibilities:
- The User will need to negotiate and agree upon satisfactory payment outcomes for themselves and for others. Specifically the User must: submit payment applications; assess payment applications; or both submit and assess payment applications.
- The User will buy access to the Web Site to negotiate, agree and document satisfactory payment outcomes online.
- The User will be able to prepare, submit, assess and certify payment applications over the Internet using the Web Site from any location and at any time.
- The Services will not include end-to-end project management and accounting software; and it will not offer full service, on-line project collaboration.