PlanRadar Pty Ltd (ACN 656 108 575) Level 44, 600 Bourke Street, Melbourne VIC 3000, Australia, (hereinafter referred to as “PlanRadar”), sells and manages software for construction documentation and defect management.
These General Terms and Conditions govern the rights and obligations between PlanRadar and PlanRadar’s customers. PlanRadar’s services are only offered to customers who are business owners/entrepreneurs (b2b).
In these General Terms and Conditions, unless the context otherwise requires, the following words mean:
Agreement means this agreement and which embodies the Offer, the Special Terms and the General Terms and Conditions for PlanRadar.
Business Day means Monday to Friday of each week, except where such days are Australia wide public holidays.
Confidential Information means the information of a party that is not in the public domain which relates to the subject matter of this Agreement and includes, but is not limited to, information relating to:
the design, specification and content of the Software;
the personnel, policies or business strategies of PlanRadar and its agents; and
the terms upon which the Software has been supplied, installed and maintained pursuant to this Agreement.
Insolvency Event means the happening of one or more of the following events:
a) an application (other than one that is dismissed within 10 Business Days) is made to a court for an order, or an order is made, that a party be wound up;
b) an application (other than one that is dismissed within 10 Business Days) is made to a court for an order appointing a liquidator, provisional liquidator, receiver or other administrator in respect of a party, or one of them is appointed whether or not under an order;
c) a resolution is passed to appoint an insolvency administrator in respect of a party;
d) a party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
e) a party resolves to appoint an administrator to itself, wind itself up, or otherwise dissolves itself, or gives notice of intention to do so, or is otherwise wound up or dissolved;
f) a party is, or states that it is, unable to pay its debts as and when they fall due; and
g) a party takes any step to obtain protection or is granted protection, from its creditors under any applicable legislation.
Intellectual Property Rights means all rights resulting from intellectual activity whether capable of protection by statute, common law or in equity and including content, copyright, discoveries, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and plant varieties and all rights and interests of a like nature including but not limited to methods and techniques, together with any documentation relating to such rights and interests.
Software means the product described in the Offer which is provided to the user by PlanRadar.
The recipient of the Offer may be described herein as User, user, users, beneficiary or customer.
2.1 These General Terms and Conditions govern the business relationship between PlanRadar and PlanRadar’s customers, whether for payment or not (e.g. during trial phases). PlanRadar provides services exclusively based on these General Terms and Conditions. Any use of PlanRadar services by the customer shall have the effect that these General Terms and Conditions will form the basis of such business relationship.
3.2 In addition to these General Terms and Conditions, the current PlanRadar price lists (see www.planradar.com), as well as any other contract terms to the extent that these have been individually agreed in writing, shall apply.
3.3 If the customer has its own terms and conditions, by using any services of PlanRadar, the customer agrees and confirms that only PlanRadar’s General Terms and Conditions shall apply to the contractual relationship between PlanRadar and the customer to the exclusion of any terms and conditions of the customer. Any terms and conditions of the customer will only apply if PlanRadar expressly confirms this in writing.
3.4 Individual agreements must be made in writing (and must be signed by the parties). Any informal statements and declarations made by PlanRadar (including those made by email) are not binding.
3.5 PlanRadar is entitled to unilaterally change these General Terms and Conditions at any time. The customer will be notified of such changes via email at least two months before they will take effect. The customer will be entitled to object to such change in writing within four weeks from receipt of the email. The change will be deemed accepted and binding, if either the customer has consented to the change or if the user has not objected to this change within the four-week period. PlanRadar will separately point out these legal consequences and the option to object in the notification e-mail. In the event of an objection, PlanRadar is entitled to terminate the contracts concluded with the customer under the General Terms and Conditions for good cause, subject to a one-month notice period. If PlanRadar does not terminate one or more such contracts in the event of an objection, the General Terms and Conditions shall continue to apply to such contract or contracts.
4.1 PlanRadar provides the customer with the Software which is a system (potentially) consisting of several modules for construction documentation and defect management as software-as-a-service (“SaaS”) in the respective current version for use via the Internet, an app as client software as well as the possibility to store data.
4.2 Additional services, such as adapting the Software to the individual requirements of the customer, require a separate agreement.
4.3 PlanRadar reserves the right to further develop and change the Software and all specifications of the Software at any time (e.g. by using newer or different technologies, systems, processes or standards). The customer benefits from such ongoing Software development and accordingly acknowledges in return, that there may be times when temporary maintenance takes place in connection with any updates and upgrades. PlanRadar will notify the customer in good time if there will be any significant changes in service performance. If the customer experiences unacceptable disadvantages as a result of the service changes, the customer will be entitled to terminate the contract within 14 days of receipt of the notification of the service changes with such termination taking effect on the date on which the changes will become effective.
4.4 The customer has the option of using the Software free of charge for a period of 30 days after registration (test phase). Before the end of this free trial phase, PlanRadar will contact the customer and inform the customer of the option to take out a contract in return for payment to continue to use the Software. If the customer does not take up this option, the customer’s user account will be locked and then deleted after 30 days at the earliest.
4.5 PlanRadar is only responsible for the services that PlanRadar itself provides. The customer may not raise any claims against PlanRadar for any Software malfunctions caused by the customer or a third party intervention.
4.6 The place of PlanRadar’s service provision is the router exit to the Internet located at the data centre used by PlanRadar. The customer’s end devices and the Internet connection are not part of PlanRadar’s service.
4.1 The customer undertakes to only use the Software according to these General Terms and Conditions as well as according to any individual agreements. The customer must ensure that all of its users (employees or other third parties attributable to the customer) also comply with the relevant terms. The customer is liable to PlanRadar for all damages resulting from the violation of the customer’s or its user’s obligations, in particular in the case of any illegal use of the Software.
5.2 The customer shall only use the software for its intended purpose and shall not misuse it, in particular not use it to store or distribute unlawful content. The customer further undertakes not to use any technical equipment, software systems or other data that could impair the Software or systems of PlanRadar.
5.3 The customer is not permitted to make changes to the Software or to have such changes carried out by third parties.
5.4 The customer must maintain the IT infrastructure that is required to use the Software at its own expense and own risk.
5.5 The customer must take appropriate technical steps to secure its system and must regularly backup its data.
5.6 The customer must secure its login details to the Software and not make them accessible to third parties.
5.7 PlanRadar may block the customer’s access to the Software in the event of a breach of these General Terms and Conditions or of any individual agreements, particularly if the customer defaults on payment. This does not affect the customer’s duty to continue paying the contractual fee for use. In addition, the customer must reimburse PlanRadar for any costs incurred in connection with the blocking of the customer’s access.
5.8 The customer agrees that PlanRadar may name it as reference customer in its public appearance. PlanRadar will agree with the customer the use of customer logos, project data, etc. before publication.
6.1 All rights to the Software belong to PlanRadar. The customer is only granted the non-exclusive, non-transferable and non-sublicensable right to use the software to the agreed extent during the contract period. In particular, the customer may only duplicate the Software to the extent necessary for the intended use of the Software (e.g. loading into the main memory of the various terminals). The customer is not permitted to reproduce, sell, rent or lend the Software or parts of it in any other way or to transfer it to third parties or to grant them sublicenses. The customer is allowed to temporarily assign subcontractor access in accordance with the product description of the Software.
6.2 Unless otherwise agreed, no further rights to the Software are granted to the customer. In particular, the customer shall not acquire any rights whatsoever in the Software, and in particular no copyright, no trademark, patent, or other intellectual property rights.
6.3 For third-party software products provided to the customer by PlanRadar, the respective license terms of the manufacturer of these software products shall take precedence over the provisions of this section 5. With regard to the license terms of the third-party software products used within the scope of the software, we expressly refer to point 13.
6.4 The Customer is not entitled to reverse engineer, decompile or disassemble the Software unless (and only to the extent that) applicable law expressly and compulsorily permits it, notwithstanding this limitation.
6.5 Points 5.1 and 5.2 apply mutatis mutandis to all documents provided by PlanRadar to the customer, in particular, to the Software documentation.
6.6 The rights conferred upon the user in this Agreement do not create or confer upon the user proprietary interest in or over the Software or include any rights other than those granted by this Agreement or to which the user is otherwise entitled to by law.
6.7 PlanRadar is under no obligation to provide support, maintenance or assistance to the user where in relation to an error or defect for which support & maintenance is required which is caused by:
a) modification of the Software by anyone other than PlanRadar or as a result of the negligent use, abuse or misuse of the Software by the user;
b) the alteration of the Software without the prior written consent of PlanRadar;
c) the use of software with the Software, other than that recommended by PlanRadar; or
d) the user does not install any solution or correction of a fault in the Software within the requisite time; or
e) delay caused solely by the user.
6.8 The user will use its best endeavours to ensure that its employees, agents and subcontractors at all times protect and preserve the confidential nature and continued secrecy of any confidential information of PlanRadar and the Software.
6.9 The user must not:
a) reproduce, adapt, alter, modify, decompile, disassemble or reverse engineer the Software or any part thereof or attempt to do so or directly or indirectly allow or cause a third party to reproduce, adapt, alter, modify, decompile, disassemble or reverse engineer the Software or any part thereof; or
b) sub-license, assign, transfer or in any manner make available the Software to a third party without the prior written consent of PlanRadar.
6.10 Any unauthorised sub-licence, assignment, transfer, use, reproduction, adaptation, alteration, modification, de-compilation, disassembly, reverse engineering, publication, disclosure or transfer of the Software or any part thereof by the user or a third party who has been given the opportunity thereto by the user will, in addition to its other right, entitle PlanRadar to equitable relief against the user, including injunctive relief.
6.11 The user acknowledges that all intellectual property rights in the software belong to PlanRadar.
6.12 The grant of the licence to use the Software does not constitute an assignment by PlanRadar of any intellectual property rights, which subsist or may at any time, subsist in the Software.
6.13 The user must not alter or remove any notice on the Software relating to its ownership and its use.
6.14 The user must promptly advise PlanRadar of any infringement or threatened infringement, unauthorised use, attack or threatened attack on the validity of any intellectual property rights in the Software, which may come to the user’s attention.
7.1 PlanRadar provides the Software to the customer according to principles of “reasonable best efforts”. PlanRadar will therefore make every economically reasonable effort to ensure that the use of the Software is as uninterrupted as possible and will correct software errors that restrict the use of the software.
7.2 PlanRadar assumes no warranty or liability for the permanent availability of the Software or that the Software will be free from errors. The customer expressly acknowledges that, according to the current state of technology, it is not possible to completely exclude all errors from the Software. Connection errors or necessary maintenance work by PlanRadar can also result in temporary malfunctions. Insofar as for individual cases the liability cannot be effectively excluded, improvement shall take priority over a price reduction or cancellation of the contract.
7.3 PlanRadar shall not be liable for any direct or indirect damage to the customer or third parties caused by malfunctions or for damage to the customer’s end devices. Compensation for consequential damage such as loss of earnings or lost profits is excluded, as is liability for damages to the customer due to project delays. Likewise, PlanRadar is not liable for any loss of savings or for damages resulting from third-party claims.
7.4 PlanRadar is only liable in the event of intent and gross negligence. In addition, PlanRadar’s liability for each damage causing event, even if there are multiple injured parties, is limited to a total of AUD$10,000. If the total damage is higher, claims for damages by the individual injured parties will be reduced proportionately.
7.5 PlanRadar cannot exclude the possibility of data loss or other impairments, in particular due to impairments in the customer’s internet connections in the course of synchronization processes. PlanRadar assumes no liability for this either.
7.6 PlanRadar is not liable for damage and defects that are due to improper operation, changed operating system components, interfaces and parameters, changes to the necessary system settings, use of unsuitable organisational means or simple application errors. Likewise, PlanRadar is not liable for disruptions in the public communication networks or inadequate system requirements for the customer (current system requirements for using the software can be found at www.planradar.com.)
7.7 The customer will immediately inform PlanRadar of any malfunctions and, if possible, with a comprehensible description of the error so a correction can be made as soon as possible. The customer will free of charge assist PlanRadar to remedy any malfunctions. Any rectification of malfunctions by PlanRadar requires in any case that the customer has fully met its payment obligations.
7.8 High-risk environments: The software may contain components that react negatively to errors or in which contained errors are only detected later and corrected in the course of the usual patches. The software is not designed to be used in a hazardous environment that requires fail-safe (fault-tolerant) performance or in any other application where failure of the Software could directly result in death, injury, serious property damage or environmental damage.
7.9 To the extent and as far as obligations relating to the Software are affected due to force majeure, including war, terrorism, natural disasters, fire, strike, lockout, embargo, governmental intervention, epidemic or pandemic, power supply failure, transport failure, telecommunication network or data lines, or legislative changes effected after conclusion of the contract or other unavailability of the Software cannot be rectified on time or not in a proper manner, this does not constitute a breach of contract and does not entitle the customer to any claims against PlanRadar.
7.10 The user covenants, acknowledges and agrees that:
a) subject to the completion of the 30 day trial period, it is satisfied with, and has approved and has accepted the Software on an “as is” basis after making its own investigations and enquiries and relying on its own skill and judgement; and
b) the proper operation of the Software is dependent upon the user’s compliance with minimum system requirements and the user complies with, and will continue to comply with, those minimum system requirements.
7.11 To the extent permitted by law, other than those expressly given in this Agreement, PlanRadar makes no representations, and gives no warranty of any kind, whether express or implied, in respect of the Software.
7.12 Under no circumstances whatsoever or howsoever arising will PlanRadar be liable for any special, indirect or consequential losses incurred by the user or any third party arising from the use of the Software including without limitation, loss of opportunity, loss of profit or loss of reputation or goodwill.
7.13 Without limiting any other right or protection of PlanRadar under this agreement, PlanRadar will, under no circumstances whatsoever, be liable for any loss or damage caused to the user or any third party as a result of the user’s use of the software where the loss or damage is caused by the manner in which the software has been customised where the customisation has been approved by the user, or the software having been customised without the consent of PlanRadar, or the user failing to maintain the applicable minimum system requirements.
7.14 To the extent permitted by law, the user will indemnify and keep indemnified PlanRadar from any against any claim, loss, liability or expense (including consequential and indirect loss or damage and legal expenses on a solicitor/own client basis) arising out of or connected with this agreement and the Software.
7.15 The right of PlanRadar to be indemnified under this agreement is in addition to and not exclusive of, any other right, power or remedy provided by law.
8.1 As a user of the software, the customer is the person responsible for data protection, PlanRadar is merely a processor. For this purpose, a separate contract for processing will be concluded; in the absence of an individually agreed contract for processing, the standard contract for processing by PlanRadar will apply.
8.2 As the person responsible, the customer is in charge of compliance with any applicable legislation with respect to collection transmission and storage of data. Insofar as the customer processes personal data when using the software (e.g. enters, processes, stores or transmits personal data to PlanRadar), it guarantees that it is entitled to do so in accordance with the applicable data protection regulations.
9.1 The customer and PlanRadar mutually undertake to treat all business and trade secrets of the respective other party obtained in connection with this contract and its execution as such as confidential and not to make them accessible to third parties, unless they are generally known, or were already known to the recipient beforehand without an obligation to secrecy, or are communicated or provided to the recipient by a third party without an obligation to secrecy, or have demonstrably been developed independently by the recipient, or are to be disclosed due to a legally binding official or judicial decision. This obligation shall apply for an unlimited period of time after the end of the contractual relationship.
9.2 Subcontractors engaged by PlanRadar for the fulfilment of the contract are not considered third parties if they are subject to a confidentiality obligation corresponding to this point.
10.1 The term of the contract is specified in the individual agreement with the customer; if there is no such stipulation, contracts are concluded for an indefinite period.
10.2 Both PlanRadar and the customer can terminate unlimited contracts at the end of the respective accounting period (12 months, unless expressly agreed otherwise) by giving one month’s notice. Also, the deletion of the account by the customer shall be considered as termination at the end of the respective accounting period, and the deletion must be made at least one month before the end of the respective accounting period.
10.3 Fixed-term contracts may be terminated by either contracting party by giving one month’s notice before the end of the respective contract period. If they are not terminated, they are automatically extended by a further year in each case. Deletion of an account by the customer shall also be deemed to be a termination of the contract at the end of the respective contract period, and the deletion must take place at the latest one month before the end of the respective contract period.
10.4 Termination must take place in writing or via the PlanRadar platform by an administrator appointed and authorised by the customer.
10.5 An extraordinary termination by PlanRadar with immediate effect is possible in particular under the following conditions:
a) If the customer provides incomplete or incorrect information or fails to provide required proofs.
b) If the customer is in default of payment during 30 days; the granting of a grace period is not required; or
c) If there is reasonable suspicion that the Software is being misused.
10.6 The customer is responsible for backing up its data in good time before termination of the contract. 30 days after the expiry of the contract, the customer can no longer access its data.
10.7 If a party is subject to an insolvency event, the other party may, by notice in writing, terminate this Agreement with immediate effect.
10.8 Upon termination of this Agreement, the user:
a) will cease to have any right to, and must not thereafter, use the Software;
b) must, at its expense, deliver or destroy all Software in its possession or control; and
c) must erase the Software from any and all operating systems on which the Software has been installed.
10.9 Upon a party giving the other party written notice of termination of this Agreement, each party shall at its own expense return or destroy all confidential information of the other party that is in its power, custody or possession.
10.10 The termination of this Agreement will not prejudice the right of action of a party in respect of any breach of this Agreement which occurred prior to termination or any obligation created by this Agreement that is intended by its term, nature or effect to survive termination.
11.1 The customer must immediately inform PlanRadar of any changes in its address. If the customer has failed to do so, PlanRadar’s notices are deemed to have been delivered if delivery was made to the last valid address provided by the customer for communication.
11.2 All notices and other communications provided for or permitted by this Agreement will be sent by prepaid mail, by hand delivery or email to the addresses of the parties as specified in the Offer or to such other address or person as any party may specify by notice in writing to the other party, and may be sent by an agent of the party sending the notice.
11.3 Each notice or communication will be deemed to have been duly received:
a) Not later than two business days after being deposited in the mail with postage prepaid;
b) When delivered by hand; or
c) If sent by email upon production of a delivery confirmation report received by the sender which records the time the email was delivered unless the sender received a delivery failure notification.
12.1 All amounts (unless otherwise stated) are exclusive of the currently applicable sales tax and other charges. A cash discount is not provided or granted.
12.2 User fees are generally charged in advance for the accounting period in question.
12.3 When ordering via the PlanRadar website, payment claims are due in accordance with the conditions of the payment provider Fastspring (http://www.fastspring.com/) – unless stated otherwise.
12.4 The customer shall bear all bank charges and other expenses associated with the transfer.
12.5 In the event of late payments, the customer will be charged interest on arrears calculated at 10% per annum on the outstanding amount, plus reasonable reminder fees. The customer will also pay all costs on an indemnity basis associated with the recovery of the late payments, including but not limited to legal fees and disbursements and collection agency costs.
12.6 Payments by the customer are initially offset against any costs or interest on arrears. Then, they are offset against the oldest debt.
11.7 PlanRadar is entitled to unilaterally increase the prices of the Software and will notify the customer in good time, at least 1 month in advance. For an unlimited contract, the price change takes effect at the beginning of the next accounting period, in the case of a fixed-term contract at the beginning of the next contract year.
12.8 Invoices are considered to be accepted if no objection has been raised in writing within 3 months after the invoice has been issued.
12.9 The customer cannot offset its own claims against PlanRadar’s claims. The customer’s right of retention is also excluded.
12.10 For the purposes of this Agreement:
a) GST means any tax imposed by authority of any GST law and includes GST within the meaning of a GST act;
b) GST Act means the A New Tax System Goods and Services Tax) Act 1999 (as amended); and
c) GST law means GST law as defined in the GST Act and includes any Act of Parliament of Australia that imposes or deals with GST.
12.11 Except where express provision is made to the contrary all amounts or other consideration payable by any party under this agreement represent the value of any taxable supply for which payment is to be made.
12.12 If a party makes a taxable supply in connection with this Agreement for a consideration which represents its value then the recipient of the taxable supply must also pay at the same time, and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
12.13 A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient.
13.1 Should one or more provisions of these General Terms and Conditions be or become ineffective or unenforceable in full or in part, the validity of the remaining provisions will not be affected. The ineffective or unenforceable provision is to be replaced by a corresponding valid regulation as close as possible to the economic purpose of the ineffective or unenforceable clause.
13.2 The right to claim a reduction by more than half (laesio enormis) is excluded.
13.3 Any transfer by the customer of the rights or obligations based on the contract requires the prior written consent of PlanRadar. However, PlanRadar is entitled to transfer the contract to a third party in full or in part without the customer’s consent.
13.4 PlanRadar is entitled to use third parties in full or in part to fulfil its obligations.
13.5 This Agreement will extend to bind the parties and their respective heirs, executors, successors, assigns, administrators and legal personal representatives and any reference to any party will where the context so admit include their respective heirs, executors, successors, assigns, administrators and legal personal representatives.
13.6 In the case of each party that consists of more than one person (including in that expression any corporation) each of those persons covenants, agrees and declares that all of the covenants, agreements, declarations and consents contained in this Agreement and made and given by that party have been entered into, made and given and are binding upon that person both severally and also jointly with the other person or persons constituting that party.
13.7 Each party to this Agreement agrees to at any time execute all documents and do all things that are reasonably necessary to carry out and give effect to the terms and conditions of this Agreement.
13.8 No termination or attempted waiver of any of the provisions of this Agreement will be binding on a party unless in writing and signed by a duly authorised officer of that party or by that party.
13.9 This Agreement may not be amended modified or supplemented except by written agreement by the parties or persons duly authorised on behalf of the parties.
13.10 No waiver by any party of any default in the strict and literal performance of or compliance with any provision condition or requirement in this Agreement will be deemed to be a waiver of strict and literal performance of and compliance with any other provision, condition or requirement of this Agreement nor to be a waiver of or in any way release any party from compliance with any provision condition or requirement in the future nor will any delay or omission of any party to exercise any right under this agreement in any manner impair the exercise of such right accruing to it thereafter.
13.11 The law of Victoria, Australia applies exclusively, even if the software is used outside Australia or there is any other international connection.
13.12 Any disputes shall be subject to the exclusive jurisdiction of the competent court in Melbourne, Victoria, Australia. The place of performance is also Melbourne, Victoria, Australia.