1.1 Construct You Pty Ltd ABN 55 605 784 012 (Company) provides the Construct You online networking service for businesses and tradespersons (Construct You).
A KEY DEFINITIONS
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
(a) Agreement means these Terms of Service.
(b) Business means a user that holds a Business account in Construct You.
(c) Business Page means a page within Construct You, created and managed by a Business in order to promote the Business and advertise positions for Individuals.
(d) Company means Construct You Pty Ltd ABN 55 605 784 012.
(e) Construct You means the:
i Web application accessible from https://www.constructyou.com.au; and/or
ii The Construct You mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
(f) Fee means any fee payable by a User for access to, or use of Construct You.
(h) Profile means a Construct You profile page created and managed by a Individual.
(i) Site means the website operated by the Company accessible at https://www.constructyoucom.au (or such other website operated by the Company from time-to-time).
(j) Third Party means any person that is not a User.
(k) Individual means a user that holds a Individual account.
(l) User means any Individual or Business that uses Construct You.
(a) Individuals (Item C)
(b) Businesses (Item E)
B.2 In addition to any other express or implied consents, by using Construct You the User accepts and agrees to the terms of:
(a) This Agreement; and
C USING CONSTRUCT YOU
C.1 Business Pages and Profiles.
(a) A User may create and manage a Business Page or Profile.
(b) Each User is responsible for the Business Page or Profile that it creates, including with regard to the accuracy of the information it publishes.
(c) The relevant User may edit the Business Page or Profile at any time.
C.2 Interacting with other Users.
(a) The User acknowledges that they use Construct You at their own risk.
(b) Construct You may allow Users to make their contact information available to other Users.
(c) In default contact information will not be made available until both Users agree to be the other’s contact, unless a User otherwise specifies in their preferences.
(d) The Company makes no representation as to the credentials, qualifications, experience or character of any User of Construct You.
(e) The Company accepts no responsibility for the conduct of any User of Construct You.
(f) Each User must interact with other users, with respect and professionalism. No User may use the Construct You in a way that the Company in its sole discretion determines is, racist, sexist, xenophobic, discriminatory, defamatory, libellous, threatening, intended to cause offense or is otherwise antisocial.
(g) The Company accepts no responsibility for any interaction between Users, whether that interaction occurs via Construct You or not (including a personal meeting).
C.3 Agreements between Users.
(a) Construct You is designed to allow users to network with other Businesses and Individuals in their own, or other industries.
(b) Each User acknowledges that any agreement formed between Users as a result of their use of Construct You is made at the User’s own risk, and:
i Any dispute relative to such an agreement shall be dealt with strictly between the parties to that agreement; and
ii The Company shall not be responsible in any way in relation to such an agreement.
C.4 Lodging a Complaint.
(a) If a User believes that another user’s behaviour is threatening, discriminatory, deliberately offensive or otherwise does not meet the standards set out in item C.2(f), the User may lodge a complaint to the Company via email at email@example.com
(b) The Company may suspend or remove the account of any User that the Company determines conduct themselves inappropriately.
(c) The Company’s decision whether or not to suspend or remove an account is at its absolute discretion. The Company’s decision shall be final and not subject to review.
D.1 Construct You may enable a Individual to:
(a) Create and manage a Individual account;
(b) Create a Profile that may allow the Individual to:
i Describe their qualifications, skills and experience; and
ii Provide other information about the Individual.
(c) View and manage their news feed;
(d) View the Profiles of other Individuals;
(e) Endorse the skills and experience of other Users;
(f) Contact other Users that are added as a contact; or
(g) Use such other features that the Company may make available via Construct You from time-to-time.
D.2 The Individual agrees and accepts that:
(a) Construct You may send the Individual emails, text messages, push notifications and other alerts;
(b) Any consent made by a Individual through Construct You is valid and binding unless and until revoked by the Individual, and other Users may rely on a consent made through Construct You without any need to further verify the veracity of that consent;
(c) All information supplied to Construct You about a Individual is provided with that Individual’s consent;
E.1 Construct You may enable a Business to:
(a) Create and manage a Business Account;
(b) List available jobs;
(c) Connect with other Businesses and Individuals;
(d) Follow other Business Pages and Profiles;
(e) Communicate with other Users; and
(f) Use such other features that the Company may make available via Construct You from time-to-time.
E.2 The Business agrees and warrants that:
(a) To the extent permitted by law the Business indemnifies and will hold Construct You harmless against all costs, claims damages and expenses for:
i Any Penalty imposed upon the Business;
ii Claim of infringement of intellectual property rights made by a Third Party;
iii Any information that the Business provided to the Company is found to be misleading.
iv Claim of breach of confidentiality by any Third Party; As a result of the Business’s use of Construct You;
(b) Notwithstanding any information on a Profile, the Business shall not disclose any information about another User to any person or party other than as authorised by the relevant User;
(c) It shall ensure all personal information it has access to through its use of Construct You is kept and used in accordance with applicable privacy laws in the jurisdiction;
(d) It shall only use Construct You for its intended purpose as set out in this Agreement;
(e) It shall comply with all anti-SPAM legislation in its jurisdiction; and
(f) It grants Construct You a royalty free licence to use any logos in any form, media or technology that the Business provides t the Company for the purpose of promoting or marketing Construct You.
E.3 Any person who registers a Business in Construct You warrants he or she is an authorised representative of that Business, with the requisite authority to bind the Business to this Agreement.
F.1 Fees and Charges.
F.2 Fees apply as advertised for the use of Construct You (if any), and the terms of those Fees are set out in the General Conditions.
F.3 Where a Fee is paid for a particular period of access to Construct You, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Construct You within that period.
All payments must be made through Construct You using the Company’s designated payment systems, or as otherwise directed by the Company. The Company may restrict access to any or any paid features of Construct You until funds have cleared.
All transactions are processed in Australian dollars by local and international payment providers. Each User accepts that international payment processing fees may apply from the User’s financial institution.
If GST is applicable to any payment by a User to the Company then:
(a) The fee is inclusive of GST; and
(b) The Company will provide the User with a Tax Invoice for its payment.
No refunds are offered other than as required by law.
G ELECTRONIC TRANSACTIONS
G.1 The User agrees that when it provides any consent, authority or agreement through Construct You it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
G.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through Construct You as an electronic transaction shall be sent directly from its email address.
H.1 The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.
H.2 The Company does not guarantee the validity of any electronic transaction.
I TERM & LIMITATIONS
The User’s licence to access Construct You shall be ongoing until terminated in accordance with this Agreement.
I.2 Limitations on Use.
The Company may limit or restrict access to Construct You from time-to-time as it sees fit, including (but not limited to):
(a) Entities. The Company may restrict access only to qualified, reputable and/or registered Businesses; and
(b) Location. The Company may restrict access to Construct You to certain jurisdictions where it is able to offer Construct You.
(a) The User must register an account in Construct You to use Construct You.
(b) The Company may set any registration requirements in its absolute discretion.
K CONFIDENTIAL INFORMATION
K.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:
(a) Personal information;
(b) Business, employees and contractors.
L.1 This Agreement may be terminated at any time by:
(a) Written notice of one party to the other; or
(b) By cancelling or otherwise terminating a User account through Construct You.
L.2 Deleting Construct You does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that Construct You has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
L.3 The User agrees and accepts that deletion of Construct You may result in loss of data for which the Company is in no way liable.
M ACCOUNT ACCESS USING THIRD-PARTY SERVICES
M.1 Registration & Login.
(a) A User may be able to register for Construct You, and access Construct You, by using their account with certain third party services (“TPS”) (including, but not limited to, Facebook);
(b) As part of the functionality of Construct You, a User may connect their profile with a TPS by:
i Providing the User’s TPS login information to the Company through Construct You; or
ii Allowing the Company to access the User’s TPS in accordance with its terms & conditions of service; and
(c) When connecting to Construct You using a TPS the User warrants that the User is not in breach any of its terms & conditions of service.
M.2 Ongoing Availability.
(a) The User agrees that access to Construct You may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and Construct You;
(b) The User may disconnect the connection between Construct You and the TPS at any time.
(c) The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
M.3 Data from TPS.
Where a User connects and or registers their profile using a TPS, the User authorises the Company to use data from that TPS to create the User’s profile on Construct You.
N DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
N.1 The User acknowledges that Construct You:
(a) Is dependent on third-party services, including but not limited to:
i Banks, credit card providers, BPAY;
ii Telecommunications services;
iii Hosting services;
iv Email services; and
v Analytics services.
(b) Provides links to third party websites containing (without limitation) personal information.
N.2 The User agrees that the Company shall not be responsible or liable in any way for:
(a) Interruptions to the availability of Construct You due to third-party services; or
(b) Information contained on any linked third party website.
N.1O.1 Governing Law. Victoria, Australia
N.1O.2 Reference City. Melbourne.
1.1 The User wishes to access Construct You provided by The Company.
1.2 The terms and conditions in this Agreement govern the provision of Construct You to the User by the Company.
2.1 The following definitions apply in this document:
(a) ACN means Australian Company Number.
(b) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item O of the Important Terms.
(c) Corporations Act means the Corporations Act 2001 (Cth).
(d) Fees mean the fees and charges as set out in the Important Terms.
(e) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(f) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(g) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(h) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(i) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(j) Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(k) Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(l) Privacy Act means the Privacy Act 1989 (Cth).
(m) Solution means the Construct You solution described in the Important Terms.
(n) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(o) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(p) User Content means data that is uploaded or input into Construct You by the User or that forms part of the User’s Intellectual Property.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this Agreement.
(d) A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
3 APPLICATION OF THIS AGREEMENT
3.1 This Agreement applies to use of and access to Construct You.
3.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using Construct You.
3.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Construct You at the User’s next login after the User receives written notice of the update(s).
4 THE CONSTRUCT YOU PRODUCT
4.1 Construct You is the product described in the Important Terms.
4.2 Construct You is only accessible to the User for the term set out in the Important Terms.
4.3 The User agrees and accepts that Construct You is:
(a) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
(b) Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Construct You is available to the User unless expressly agreed in writing.
4.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter Construct You.
4.5 The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Construct You to the User, other than in accordance with the terms of this Agreement.
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Construct You for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6.1 The User agrees that it shall only use Construct You for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
7 UTHORISED USERS
7.1 The User shall authorise users to access Construct You in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username and password for access to Construct You.
7.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Construct You account.
8 USER CONTENT
8.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 Despite clause 8.1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clause 10.
8.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Construct You).
9.3 The Company makes no warranty as to the suitability of Construct You in regards to the Business’s privacy obligations at law or contract, and it is the Business’s responsibility to determine whether Construct You is appropriate for the Business’s circumstances.
10 INVOICING & PAYMENTS
10.1 The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
10.2 The terms of payment set out in the Fees shall apply.
10.3 Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
11.1 Security. The Company takes the security of Construct You and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
11.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
11.3 Storage. The Company may limit the amount of data that the User stores in Construct You, and shall advise the User of such. Data that is stored with Construct You shall be stored according to accepted industry standards.
11.4 Backup. The Company shall perform backups of Construct You in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
12.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to Construct You to the best of its abilities, however:
(a) Access to Construct You may be prevented by issues outside of its control; and
(b) It accepts no responsibility for ongoing access to Construct You.
13 INTELLECTUAL PROPERTY
13.1 Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
13.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Construct You.
13.3 The Construct You Application. The User agrees and accepts that Construct You is the Intellectual Property of the Company and the User further warrants that by using Construct You the User will not:
(a) Copy Construct You or the services that it provides for the User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Construct You or any documentation associated with it.
13.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Construct You.
14 LIABILITY & INDEMNITY
14.1 The User agrees that it uses Construct You at its own risk.
14.2 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
14.3 The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
14.4 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Construct You, including any breach by the User of these Terms.
14.5 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Construct You or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
14.6 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
15.1 Expiry or termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
15.2 The rights and obligations under the relevant provisions of clauses 7, 9, 10, 13, 14, 15, 16, 17 and 17.6 survive termination of this Agreement.
16.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
16.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 16.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
17 ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
17.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
17.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
17.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
17.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
17.5 Notices must be sent to the parties’ most recent known contact details.
17.6 The User may not assign or otherwise create an interest in this Agreement.
17.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
18.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
18.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
18.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
18.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
18.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
18.6 Governing Law. This Agreement is governed by the laws of the state set out in item O of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
18.7 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END GENERAL CONDITIONS