Terms of License

  1. Terms of Licence
    1. Wunderbuild grants you a non-exclusive, non-transferable, non-sublicensable right for each Authorised User to access and use the Solution solely for your internal business purposes (Subscription) and solely during the term of the Subscription, subject to this Agreement.
    2. The features included in your subscription are outlined in the subscription level you have chosen in the Order Document. You may change the subscription level at any time. Any downgrade in the subscription level will take effect at the start of the next monthly cycle.
    3. Subject to the terms and conditions of this Agreement, to the extent the Solution contains a downloadable software component (Software), Wunderbuild hereby grants you a non-exclusive, non-transferable, non-sublicensable right and license, during the term of this Agreement, for each Authorised User to install Software on a single device controlled by an Authorised User and to operate the Software in accordance with the Documentation and restrictions set forth in this Agreement.
    4. Wunderbuild will use commercially reasonable efforts to provide Basic Support to you during Wunderbuild’s standard business hours, however Wunderbuild is not under any obligation to provide any further maintenance or support for the Solution. Wunderbuild may provide further maintenance or support for the Solution in Wunderbuild’s sole discretion.
    5. Wunderbuild may from time to time make changes to the functionality of the Solution, for example to make improvements to the Solution or to address a security threat. Wunderbuild will notify you of material changes via your nominated email address.
    6. You acknowledge and agree that your purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Wunderbuild regarding potential future functionality or features.
  2. Accounts and your Responsibilities
    1. In order to use and access the Solution, you must complete the registration process with Wunderbuild and create an Account. When you register for an Account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information.
    2. You must ensure that you and your Authorised Users:
      1. provide us with accurate information and that you will keep your information accurate and up to date at all times;
      2. maintain the security and the confidentiality of your login credentials. Wunderbuild will not be responsible for any issues or disputes that arise as a result of your failure to maintain the security of your login credentials.
      3. must notify us immediately if you become aware that your account or login credentials is being used without authorisation;
      4. must immediately notify Wunderbuild if you suspect any unauthorised use of your account or any other breach of security;
      5. ensure that you exit from your account at the end of each session; and
      6. do not allow any Authorised User’s username or password to be used by more than one individual Authorised User.
    3. You acknowledge, understand and agree that you are fully responsible and liable for:
      1. maintaining the confidentiality of your Account, username and password, and ensure confidentiality and complexity of your secure password. Wunderbuild is not responsible for any loss or damage arising from the theft or misappropriation of your username and password or any access provided by you directly or indirectly through use of your login credentials.
      2. all activities that occur under your username and password, including the purchase of the Solution or any other paid features;
      3. the acts and omissions of all Authorised Users relating to this Agreement, all activities that occur under your account and ensuring that all Authorised Users use the Solution is in compliance with this Agreement;
      4. preventing unauthorised access to, or use of, your Account and the Solution, and notifying Wunderbuild promptly if you become aware of any such unauthorised access or use; and
      5. the accuracy, quality and legality of all Your Data, including without limitation providing all relevant notices to individuals, companies, and other entities and obtaining all relevant consents as required by applicable Laws, complying with individuals’ requests under applicable privacy laws in respect of Your Data, and deleting Your Data when it is no longer needed in connection with the Solution.
    4. If any password has been provided to any individual who is not an Authorised User, then without prejudice to any other rights we have, we may promptly disable such passwords and we reserve the right to refuse issuance of a new password to any such individual.
    5. You agree to indemnify us against any Claim, loss or damages that occur as a result of your breach of the obligation in this clause 2.
    6. If you believe that your account is no longer secure, then you must immediately notify us at support@Wunderbuild.com.
  3. Use restrictions
    1. By using the Solution and creating an Account, you agree that:
      1. you will comply with the code of conduct attached at the end of this Agreement and agree to any consequences of breach of the Code of Conduct;
      2. you will not allow use of the Solution for the benefit of any third parties other than an Authorised User;
      3. you agree that you are directly responsible and liable to Wunderbuild for any act or omission of your Authorised Users and of any other person who acts or purports to act with your authority;
      4. you will not use the Solution in a way that unreasonably degrades the performance of the Solution for Wunderbuild or any of our users. If your use is unreasonable, we will notify you and ask you to comply with use of the Solution that Wunderbuild consider to be reasonable;
      5. you will not reverse engineer, decompile, dissemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Solution or any software, documentation or data related to the Solution or Solution;
      6. you will not copy, modify, translate, or create a derivative work of the Solution or Documentation or allow a third party to do the same;
      7. you will not sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the Solution or Documentation without the prior written permission of Wunderbuild;
      8. you will not access the Solution in whole or in part in order to build a competitive product or Solution or to benchmark with a product or Solution not developed or provided by Wunderbuild, or in any way modify, translate, or create derivative works based on the Solution;
      9. you will not access or use the Solution for competitive analysis of the Solution, the development, provision, or use of a competing software Solution or product, or any other purpose that is to Wunderbuild’s detriment or a commercial disadvantage;
      10. you will not use the Solution for any fraudulent or illegal purpose, in violation of law or to promote dangerous or illegal activities;
      11. you will not interfere with or disrupt the Solution, or servers or networks connected to the Solution, or disobey any requirements, procedures, policies or regulations of networks connected to the Solution;
      12. you will not circumvent, disable or otherwise interfere with security-related features of the Solution or features that prevent or restrict use or copying of any Documentation or enforce limitations on use of the Solution;
      13. you will not attempt to gain unauthorised access to the Solution, other Accounts, computer systems, or networks connected to the Solution through hacking, password mining, phishing or any other means;
      14. you will not upload, post, email, transmit, distribute or otherwise make available any material that contains viruses, computer code, or any other technologies that may harm Wunderbuild or the interests, information, or property of Wunderbuild or limit the functionality of any software, hardware or other equipment;
      15. you will not remove any proprietary notices from the Solution or Documentation;
      16. you will not use the Solution or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
      17. you will not send or store infringing, obscene, threatening, or otherwise unlawful or tortious material or Malicious Code, including material that violates privacy rights;
      18. you will not interfere with the operation of the Solution or any user’s enjoyment of the Solution, including by:
        1. uploading or otherwise disseminating any virus, adware, spyware, worm, or other Malicious Code;
        2. making any unsolicited offer or advertisement to another user of the Solution;
        3. collecting personal information about another user or third party without consent; or
        4. interfering with or disrupting any network, equipment, or server connected to or used to provide the Solution;
      19. you will not include any Solution in an outsourcing offering;
      20. you will not permit direct or indirect access to or use of the Solution in whole or in part in a way that circumvents the contractual usage limits; and
      21. you will not attempt to do any of the acts described in this clause 3(a) or assist or permit any person in engaging in any of the acts described in this clause 3(a).
    2. You acknowledge and agree that Wunderbuild shall not be liable for any loss or damage resulting from your failure to comply with this clause 3(a).
    3. Wunderbuild is entitled to immediately upon notice, suspend provision of the Solution where Wunderbuild reasonably believes that you or your Authorised Users fail to comply with this clause 3(a) or otherwise threaten the security, integrity or availability of the Solution which may impact any other users of the Solution. To the fullest extent permitted by law, Wunderbuild is not liable for any breach of this Agreement which is caused by the suspension of provision of the Solution as a result of a breach of your obligations under clause 3(a). You shall remain liable for all fees due under this Agreement during the period of any suspension. Following resolution by you of the issues that gave rise to the suspension, Wunderbuild shall as soon as reasonably practicable reinstate provision of the Solution.
  4. Free Trial Period
    1. Wunderbuild may offer you a free, no-obligation 14-day trial period of the Solution (the Trial Period). The Trial Period will commence on the initial date of the access or use of the Solution and will conclude 30 days later, or otherwise sooner:
      1. if the account is upgraded and you commence payment of the Subscription Fees; or
      2. the use of the Solution is terminated in accordance with this Agreement.
    2. You acknowledge and agree that this Agreement is applicable and binding on you during the Trial Period and Wunderbuild does not make any commitments in connection with the Solutions or the Solution during the Trial Period.
  5. Fees and Taxes
    1. The Subscription Fees are outlined in the Order Document delivered to you by Wunderbuild. All Subscription Fees are subject to change upon reasonable notice. You shall pay all Subscription Fees and any other amounts owing under this Agreement when due and you are responsible for providing complete and accurate billing information to Wunderbuild.
    2. If you choose payment to be made by credit card or other electronic means, you authorise Wunderbuild to charge such fees using your selected payment method. Any fees paid are non-refundable unless required by relevant law.
    3. You agree that your Subscription will automatically renew on a monthly basis after the initial Subscription Term (the “Renewal Date”) at the then-current Subscription Fee. If you have an annual Subscription Term, Wunderbuild will endeavour to notify you by email at least thirty (30) days prior to the expiration of the Subscription Term to enquire whether you would like to renew for another annual Subscription Term. You authorise Wunderbuild to automatically charge you for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement.
  6. Cancellation
    1. Subject to this clause 6, you can cancel your Subscription at any time.
    2. You can cancel from the billings section on the Wunderbuild platform.
    3. You must cancel your Subscription prior to the Renewal Date in order to avoid being charged the applicable Subscription Fee for the relevant Subscription Term on the Renewal Date. If you attempt to cancel your Subscription during the Subscription Term, you will not be issued a refund for the most recent Subscription Fee and the Subscription will terminate on the next applicable Renewal Date.
    4. If you wish to reduce the number of Authorised Users in your Subscription, you must do so prior to the Renewal Date.
  7. Payment by credit card
    1. You agree to ensure sufficient funds are available in your nominated credit card to meet any account withdrawals made by us.
    2. If payment is defaulted or not received, you authorise us to debit any outstanding funds (including any dishonour fees or additional charges incurred by us) from your nominated account without need for notification at a future date.
    3. We reserve the right to on-sell or otherwise authorise a debt-collection or other authorised agency to collect any amount not paid by you.
    4. In the event there are any issues with your nominated credit card, we will disable your account immediately and we will contact you via email to resolve the issue.
  8. Termination by Wunderbuild
    1. Wunderbuild may terminate this Agreement immediately by notice in writing if:
      1. you fail to pay any amount due;
      2. you are in Material Breach of this Agreement;
      3. you are in breach of any term of this Agreement and such breach is not remedied within 21 days after we have notified you of the breach;
      4. you breach or violate any laws in connection with your use of your account or our Solution;
      5. Wunderbuild receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Wunderbuild to do so;
      6. we reasonably suspect, at our sole discretion, that you have accessed or used your account or the Solution beyond the scope of the rights granted or for an unauthorised purpose or your use is likely to be involved in any fraudulent, misleading or unlawful activities;
      7. you are a corporation and you become the subject of insolvency proceedings; or
      8. you are an individual and you become the subject of bankruptcy proceedings.
    2. If this Agreement is terminated for any reason, on the date the termination takes effect:
      1. the Subscription and any other licenses granted in accordance with this Agreement will also terminate, and you must cease using the Solution and the Documentation;
      2. access to your Account will simultaneously be terminated;
      3. you must immediately cease accessing and otherwise utilising the Solution;
      4. delete all Software installed on any device; and
      5. if we request, you must return and make no further use of any Documentation and other items (including all copies) belonging to us; and
      6. you shall not be relieved of the obligation to pay any fees accrued or any amounts due and payable to Wunderbuild.
    3. Upon request by you made within 30 (thirty) days after expiration or termination of this Agreement, Wunderbuild will make all Your Data available to you solely for the purpose of you retrieving Your Data, for a period of up to 30 days after such request is received by Wunderbuild, if such data was collected in the first place.
    4. You acknowledge and agree that we will retain Your Data as legally required and we are not required to remove copies of Your Data from our backup media and servers until such time as the backup copies are scheduled to be deleted. However, in all cases Wunderbuild will continue to protect your Data in accordance with this Agreement.
    5. This clause does not limit any of our other rights or remedies, whether at law, in equity, or under this Agreement.
  9. Ownership of the Solution
    1. All right, title and interest in and to the Solution, the Solution and Documentation, including all Intellectual Property Rights are and will remain with Wunderbuild.
    2. Any third-party materials appearing in the Solution, remain the right, title and interest, including all Intellectual Property Rights, in the applicable third-party providers.
  10. Confidentiality
    1. Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party except:
      1. to the party’s personnel and professional advisors that reasonably require the information for the purposes of this Agreement;
      2. with the prior written consent of the party that provided the Confidential Information; and
      3. to the extent reasonably required by applicable Law or by the rules of any stock exchange or regulator, giving reasonable prior notice (unless disclosure is immediately required) and agrees to take reasonable steps to maintain the confidentiality of the Confidential Information (whether requested by the other party or not).
  11. Ownership of Your Data
    1. Your Data that you upload, provide, transfer, process, use or store in your account in connection with the Solution remains your property. Wunderbuild acknowledges that you own all right, title and interest, including all Intellectual Property Rights in Your Data.
    2. You grant to Wunderbuild a non-exclusive, royalty-free, worldwide licence to reproduce, distribute and otherwise use and display Your Data for the sole purpose of providing the Solution. Each party recognises that the unauthorised disclosure of Confidential Information may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and lawyers’ fees.
  12. Intellectual Property
    1. You acknowledge and agree that this Agreement does not transfer to you any Intellectual Property Rights in the Software, Solution, or Documentation. Wunderbuild and its licensors own all right, title and interest in and to the Software, Solution and Documentation (and any Intellectual Property Rights therein), and other Wunderbuild Intellectual Property Rights.
    2. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Solution (“Feedback”), then you hereby grant Wunderbuild an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Solution and createother products and Solution.
    3. Wunderbuild owns the aggregated and statistical data derived from the operation of the Solution and your Data, including, without limitation, the number of records in the Solution, the number and types of transactions, configurations, and reports processed in the Solution and the performance results for the Solution (the “Aggregated Data”). Nothing in this Agreement shall be construed as prohibitig Wunderbuild from creating and using the Aggregated Data for Wunderbuild’s own purposes, such as operating or improving the Solution, developing new solutions and offerings and identifying business trends, improve the performance of the Solution, develop important and necessary updates to our Solution and compile statistics and performance information relating to the Solution. Wunderbuild will never use this information to identify you.
    4. You hereby unconditionally and irrevocably grant Wunderbuild an assignment of all right, title and interest, including Intellectual Property Rights, in and to the Aggregated Data.
  13. Your warranties
    1. You represent and warrant that:
      1. you have the authority to enter into this Agreement;
      2. you have conducted your own due diligence into the Solution to ensure that the functionality provided by the Solution meets your requirements;
      3. you will not, engage in, encourage, or permit prohibited conduct described in clause 3 or any conduct that violates or would violate any Laws, rule, or regulation, or any right of any third party;
      4. you will comply with all applicable Laws related to data privacy, international communications and the transmission of technical data or personal data;
      5. any and all of Your Data is accurate and complete in all respects and does not infringe the Intellectual Property Rights of any third party;
      6. you will only use the Solution and the Solution in a manner consistent with this Agreement and any and all applicable laws. You agree to indemnify and release Wunderbuild from any action that arises as a result of a breach of this warranty;
      7. all information you provide to us to register your Account is true, accurate, current and complete. You agree to maintain and promptly update such information to keep it true, accurate, current and complete;
      8. any and all Data supplied by you or otherwise accessed by Wunderbuild through the provision of the Solution is your sole and exclusive property or you have secured any and all authorisations, licenses, permissions and rights to use the Data;
      9. Your Data does not breach any relevant laws, regulations, or codes;
      10. Your Data does not infringe the Intellectual Property Rights of any third party;
      11. if Your Data contains personally identifiable information or Personal Data, you have obtained the necessary consents, approval and authorisations in order to transfer or permit access to such data in accordance with applicable privacy and data protection laws. You agree to indemnify and release Wunderbuild from any action that arises as a result of a breach of this warranty;
      12. if you are provided with any of our data or any other third-party data, you will not use or copy such data;
      13. you have adequate data risk management systems and emergency recovery procedures in place to minimise any loss of data; and
      14. you are authorised to use the credit card you have nominated in Your account.
  14. Our warranties
    1. We warrant and represent that:
      1. nothing in the Solution does, or will, infringe the rights (including any intellectual property rights) of any third party;
      2. we will provide the Solution:
        1. with reasonable care and skill; and
        2. in accordance with all applicable laws;
    2. However, we do not warrant the Services will be provided without fault or disruption.
    3. We will make all reasonable efforts to ensure the availability of the Solution however, to the fullest extent permitted by law, Wunderbuild does not make any representations or guarantees regarding the uptime or availability of the Solution.
    4. You warrant that you have not relied on any representation made by Wunderbuild which has not been stated expressly in this Agreement or in your account set up or Order Document. You acknowledge that to the extent Wunderbuild has made any representation which is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.
    5. You accept the Solution and all related Documentation on an “as is” basis. You shall at all times, and notwithstanding any assistance, direction or supervision provided by Wunderbuild or its personnel, be and remain entirely responsible for all consequences arising from the Solution, including responsibility for the use, operation, processing and/or manipulation of any software and Your Data.
    6. You acknowledge and agree that we have not made any warranty or given any guarantee of any nature in respect of the Solution or satisfactory use of the Solution with respect to the economic, financial or other results which you may experience as a result of your use of the Solution. You acknowledge and agree that you have independently assessed the suitability of the Solution for your purposes.
    7. To the fullest extent permitted by law, you understand, acknowledge and agree that Wunderbuild will not be liable for any loss of use, lost data, failure of security mechanisms, failure to detect Malicious Code, or interruption of business except as a result of our gross negligence.
    8. We do not warrant that the Solution, documentation or any materials available on or through the Solution or through Wunderbuild will be accurate, current, error-free, virus free, reliable or appropriate for any particular use to which you or any third party may choose to use them, and that the system is or will be available on an uninterrupted and error-free basis, or that defects will be corrected.
    9. You acknowledge and agree that Wunderbuild is not the provider of, and makes no warranties with respect to, any third-party applications that may be linked to Wunderbuild nor any materials or activities associated with the use of the Solution.
  15. Indemnity
    1. You shall at all times indemnify and hold harmless Wunderbuild and its officers, employees and agents (those indemnified) from and against any Claim, loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such Claim, loss or liability was caused by or arising from:
      1. your use or access to the Solution or Solution;
      2. your breach of this Agreement and any other agreement or arrangement you may have with Wunderbuild;
      3. your violation of any term of this Agreement;
      4. any actual or claim of infringement of any person’s intellectual property rights;
      5. your violation of any third party right; and
      6. any of your wilful, unlawful or negligent acts or omission.
    2. If Wunderbuild elects to have you defend Wunderbuild in any Claim contemplated by this clause 15, you must not settle any Claim unless you:
      1. unconditionally release Wunderbuild of all liability; and
      2. Wunderbuild is limited to payment of money damages, which you agree to pay.
  16. Limitation of Liability
    1. To the fullest extent permitted by law, in no event will Wunderbuild be liable to you for any indirect, incidental, special, consequential, reliance or punitive damages (including damages for loss of profits, goodwill, or any other intangible loss) arising out of or relating to your access to or use of, or your inability to access or use, the Solution or software or content on the Solution, as well as any loss or damage of data (including Your Data) and information, whether arising in contract, tort or otherwise, even if a party has been advised of the possibility of such loss or damage, whether based on warranty, contract, tort (including negligence), statute, equity or any other legal principle, and whether or not any Wunderbuild entity has been informed of the possibility of damage.
    2. Nothing in this Agreement will exclude, limit or restrict either party’s liability for 16(a) death or personal injury resulting from the negligence of that party or its officers, agents, employees or subcontractors; 16(b) fraud or fraudulent misrepresentation, or (c) any other matter in respect of which liability cannot by applicable law be limited.
    3. Our liability to pay any damages to you will be reduced proportionately to the extent that any such damages relate to the provision of information to us by you (in accordance with this Agreement), or your failure to provide information to us either punctually or at all, or any fraudulent act, misrepresentation or wilful default on your part and any Force Majeure event.
  17. Implied Term
    1. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.
    2. If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any goods or services supplied by us in connection with this Agreement and our liability for failing to comply with that guarantee cannot be excluded but may be limited, then our liability for such failure is limited to (at our election):
      1. in the case of a supply of goods, we will replace the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
      2. In the case of a supply of services, we will supply the services again or pay the cost of having the services supplied again.
  18. Complaints or disputes
    1. You agree that, in the event of any complaint, dispute or claim arising out from your use of our website, our Solution or the Solution, the claim shall be resolved in accordance with the following procedure:
      1. you and Wunderbuild will attempt in good faith to negotiate a written resolution of the matter directly between the parties; and
      2. if the parties are unable to resolve the dispute, then they shall be free to pursue their respective remedies in accordance with applicable law or this Agreement.
  19. Third-Party Web Sites and Content
    1. The Solution may contain links to third-party websites or Solution that you may use and that are not owned or controlled by Wunderbuild (Third-Party Materials). You acknowledge and agree that Wunderbuild has no control over and assumes no responsibility for the Third-Party Materials and that Wunderbuild makes no warranties regarding Third-Party Materials and will not be liable for any loss or damage caused by Your use of or reliance on such Third-Party Materials.
  20. Competitors
    1. If you are in the business of providing similar solutions for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Wunderbuild. Competitors are not permitted to use or access any information or content on our Solution. If you breach this provision, Wunderbuild will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
  21. Miscellaneous
    1. Changes to this Agreement: We may amend the terms of this Agreement from time to time. Any such changes will become effective when posted on our website. We will send you an email to your nominated email address notifying you of the changes. If you object to any such changes, your sole recourse will be to cease using the Solution and terminate this Agreement. Continued use of the Solution following any changes to the terms of this Agreement and notification to your email will indicate that you acknowledge the changes and you agree to be bound by the revised Agreement, including such changes.
    2. Conflicting Terms: In the event of any inconsistency between this Agreement and any other agreement with Wunderbuild, the terms of this Agreement shall prevail.
    3. Entire Agreement: This Agreement constitutes the entire agreement of the parties and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter hereof. In the event of a conflict, the provisions of any Order Document, subscriptions, or purchases through the Solution shall take precedence over provisions of the body of this Agreement.
    4. No Waiver: The failure to exercise or delay in exercising a right or remedy provided to a party under this Agreement shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision.
    5. Severability: If any provision or part of a provision of this Agreement is found to be unenforceable or invalid in any jurisdiction, that provision or part of the provision (as the case may be) will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Invalidity or unenforceability in one jurisdiction shall not affect validity or enforceability in any other jurisdiction.
    6. Headings: The headings in this Agreement are for ease of reference and are not to be deemed to be part of this Agreement or to be taken into consideration in the interpretation or construction of this Agreement.
    7. Third Parties: No term of this Agreement is intended to confer a benefit on, or be enforceable by, any person who is not a party to the Agreement.
    8. Relationship of the Parties: No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Wunderbuild in any respect whatsoever. Any person, entity or party who is not a party to this Agreement has no right to enforce or to enjoy the benefit of any term of this Agreement.
    9. Publicity: You permit Wunderbuild to use your name and logo in press releases, lists, marketing materials, financial reports and on its website indicating that you are a client of Wunderbuild, and you agree that Wunderbuild may use its name and logo in such a manner.
    10. Non-Solicitation: During the Term and for 12 months thereafter, you will not recruit or employ, either directly or indirectly, a member of Wunderbuild’s staff, except with Wunderbuild’s prior written consent. In the event of your violation of this clause, you must immediately pay Wunderbuild a lump-sum payment equivalent to the hired employee’s compensation for one year (and you agree that such compensation is a genuine pre-estimate of Wunderbuild’s loss for your breach of this clause).
    11. Assignment: You may not assign, novate or otherwise transfer any of your rights or obligations in accordance with this Agreement, whether by operation of law or otherwise, without the prior written consent of Wunderbuild (which will not be unreasonably withheld). Any attempt by you to assign, novate or otherwise transfer its rights or obligations under this Agreement in breach of this clause 21(k) shall be void and of no effect. Wunderbuild may assign, novate or transfer all of its rights or obligations under this Agreement without consent to any of its Affiliates and otherwise in connection with a sale or other transfer of all or substantially all of the business or assets of Wunderbuild to which this Agreement relates, whether by way of sale of stock or assets, operation of the law, or otherwise. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
    12. Consent to Electronic Communications: By using the Solution, you consent to receiving certain electronic communications from us as further described in our privacy policy, available at www.wunderbuild.com. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
    13. Notices: All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by email with electronic confirmation of receipt. Notices to Wunderbuild shall be addressed to ‘The Director’ at support@wunderbuild.com. Notices to the you shall be sent to email address or contact details you have nominated in the Order Document, subscriptions, or purchases through the Solution. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.
  22. Applicable Laws
    1. This Agreement will be governed by and construed according to the laws of Victoria, Australia. You agree to the exclusive jurisdiction of the courts of Victoria, Australia to determine any dispute arising out of this Agreement.
  23. Definitions
    1. In this Agreement, the following defined terms have the following meaning:
      1. Account means an account registered with Wunderbuild for the use of the Solution for each Authorised user.
      2. Agreement means these terms and conditions and includes the Order Documentation and our Privacy Policy.
      3. Applicable Data Protection Law shall mean the Australian Privacy Act 1988 (Cth), EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”), and its national implementations in the European Economic Area (the “EEA”), Switzerland and the United Kingdom (the “UK”) (including the UK version of the GDPR once in force); and all other relevant law that applies to you.
      4. Authorised User means any individual authorised by you to access the Solution on behalf of you for your internal business purposes, through their personalised username and password.
      5. Basic Support means answering emails enquiries and remote support via telephone or email as reasonably required depending on the nature of the issue.
      6. Claims means all court or tribunal proceedings, pre-litigation claims, actions, allegations, demands and proceedings.
      7. Confidential Information of a party means the terms of this Agreement and any information:
        1. relating to the business and affairs of that party;
        2. relating to a party’s clients, employees, contractors, sub-contractors or other persons doing business with that party;
        3. which is by its nature confidential;
        4. which is designated as confidential by that party; or
        5. which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party and includes each party’s Material.
        1. that is in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence; or
        2. information that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
      8. Documentation means any documentation or set of information provided by us to you in accordance with the Solution.
      10. Feedback is as defined in clause 12(a).
      11. Force Majeure Event means an event or cause beyond the reasonable control of a party and which prevents a party from performing, or delays the performance of, any of its’ obligations under this Agreement including, without limitation, Emergency, acts or omissions of third party network operators or suppliers, lightning, storm, flood, fire, earthquake, forces of nature, any act of God, acts of war, terrorism, riot, insurrection, civil disorders, rebellions or revolution, strike, explosion, blockade, lockout, other industrial disturbance or labour difficulty, any action or inaction by an organ of government or government agency or other competent authority.
      12. Intellectual Property Rights means any and all common law, statutory, federal, state and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honoured or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
      13. Job means a job or tender posted on the Solutions as part of tendering for subcontractors for your project(s);
      14. Law(s) means any local, state, federal, national and/or foreign law or laws, treaties, and/or regulations applicable to a respective party.
      15. Leads and Tender Platform means the function of the Solution that:
        1. allows a registered user to post Jobs as a Service Seeker or reply and quote on Jobs as a Service Provider; and
        2. allows Service Seekers and Service Provider to communicate via private messaging.
      16. Malicious Code means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
      17. Material Breach means a breach (including an anticipatory breach) which is serious in the widest sense of having a serious effect on the benefit which the party alleging the Material Breach would otherwise derive from a substantial portion of this Agreement over the term of this Agreement. In deciding whether any breach is material, no regard will be given to whether it occurs by some accident, mishap, mistake or misunderstanding.
      18. Order Document means the:
        1. documentation or information you submit to us to purchase the Solution outlining the terms of your Subscription, including via our website, which may be updated from time to time; and
        2. the email confirmation of your order confirming the details of your Subscription. In the event of any inconsistency between the documentation in clause (xviii)i and the email confirmation in clause (xviii)ii, the terms of the email confirmation in clause (xviii)ii will prevail.
      20. Personal Data any data or information from which a specific individual may be identified, contacted or located or that qualifies as “personal” or “private” information under Applicable Data Protection Law.
      21. Process means any operation or set of operations performed on data or information, whether or not automated, such as collection, recording, structuring, storage, adaptation or alteration, retrieval, consultation, use, handling, disclosure by transmission, dissemination or otherwise making available, alignment or combination, transfer, restriction, erasure or destruction.
      22. Service Provider means a registered user of the Solution that uses the Leads and Tender Platform to provide quotes for Jobs posted by a Service Seeker;
      23. Service Seeker means a registered user of the Solution that used the Leads and Tender Platform to post Jobs seeking quotes from Service Providers;
      24. Solution means the cloud resources management Solution we will provide to You and any Software or other ancillary Solution in accordance with the specifications in Your order and this Agreement.
      25. Solutions means any software, platform or tools provided by Us to You to perform the Solution.
      26. Subscription is a defined to include the features outlined in your chosen subscription pack, as chosen by you in the Ordering Document.
      27. Subscription Fee means the monthly payable Fees for your Subscription as outlined in the Order Document.
      28. Wunderbuild or Us, We, we, our or Our means Employfy Pty Ltd ACN 168 739 384 (trading as Wunderbuild)
      29. Your Data means the electronic data or information submitted by you or Authorised User to the Solution, which may include personal data.
      30. You, you, your and Your means the person, company or other legal entity purchasing the Wunderbuild Solutions and Solution
  24. Leads and Tender Platform
    1. The following terms and conditions apply to the Leads and Tender Platform of the Solution.
    2. You acknowledge and agree that:
      1. you are solely responsible for your interaction with other users of the Leads and Tender Platform and that we are not responsible for the conduct of any user;
      2. We provide a platform that only supports the recruitment process, connecting Service Providers with Service Seekers. We do not guarantee the services of any Service Provider or of the authenticity and financial viability of the Service Seeker, or the accuracy, reliability of information provided by either the Service Provider and the Service Seeker and you must conduct your own due diligence before engaging the other party;
      3. once we provide the introduction to the Service Seeker and Service Provider, it is up to the Service Seeker and Service Provider to enter into a legally enforceable agreement regarding the provision, completion and payment of the services;
      4. in relation to the Service Provider to which you have been introduced:
        1. we provide a means for a Job to be tendered and for a Service Seeker’s selection of a Service Provider, which does not imply an endorsement by Wunderbuild of that business; and
        2. we are not responsible for the actions and services provided by the Service Provider;
      5. you are solely and completely responsible for the selection of the quote and the business transaction, including payment to the Service Provider for work undertaken at your request. Wunderbuild makes no recommendations nor prescribes to you the method of choice of choosing the Service Provider.
    3. To the fullest extent permitted by law, Wunderbuild disclaims any and all warranties, express or implied, regarding:
      1. the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Leads and Tender Platform or of any Service Provider; and
      2. merchantability or fitness for any particular purpose for any service or product contained or referred to on the Leads and Tender Platform or of any Service Provider.
    4. Wunderbuild will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss of profits or damages) which are the consequence of you:
      1. acting, or failing to act, on any information contained on or referred to on the Leads and Tender Platform or of any Service Provider; and
      2. acting, or failing to act, on any information contained on or referred to on the Leads and Tender Platform or of any Service Seeker.
    5. If you are a Service Provider:
      1. you represent and warrant that:
        1. you are authorised to provide the material and/or information and service that you represent;
        2. the material and/or information is not defamatory or a malicious falsehood in relation to any product, service, person or corporation;
        3. the material and/or information is not the “passing off” of any product or service and does not constitute unfair competition;
        4. the material and/or information does not infringe any intellectual property right including, but not limited to, trademarks, service marks or business names (whether registered or unregistered), confidential information and copyright; and
        5. the material and/or information does not infringe any legislation or regulations;
      2. you acknowledge and agree that:
        1. any and all of the terms and conditions pertaining only to the Job constitute a contract between you and the Service Seeker and do not involve or implicate Wunderbuild in any way;
        2. Wunderbuild plays no role, whether active or inactive, in the method of selection by the Service Seeker of the selected quote;
        3. Wunderbuild takes no responsibility for the accuracy, reliability or timeliness of the content provided by a Service Seeker posting a job;
        4. Wunderbuild and its respective officers, employees and agents have no liability for any costs, losses or damages of any kind, which you may incur, arising whether directly or indirectly. This applies in relation to, or in connection with, any material and/or information supplied in respect of advertising or bidding for jobs on this Leads and Tender Platform, and as a consequence of removing any material and/or information from this Leads and Tender Platform; and
        5. you warrant that you will perform all services in accordance with legislative and industry standards and that you have taken out and will maintain any required insurances, approvals and licences as required by the state and federal laws of Australia.
    6. You will at all times indemnify, and keep indemnified, Wunderbuild and its respective officers, employees and agents (referred to as “those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of, in connection with or in respect of any breach of the use of the leads and tender Platform and publication of or distribution of the material and/or information supplied by you.
  25. Code of Conduct
    1. The Wunderbuild Code of Conduct is created to maintain the integrity of our Solution for the benefit of all our users. A breach of the Code of Conduct can result in a warning, suspension of access to the Solution or immediate termination (report on any of the above breaches will be further investigated prior to warning and termination).
    2. All users of the Solution agree as follows:
      1. All users will be courteous and friendly in all interactions and not engage in any discriminatory or offensive behaviour towards Wunderbuild and users.
      2. Service Providers will deliver an excellent service and display professional workmanship at all times.
      3. Service Providers will honour the price quote submitted to the Service Seeker unless there is a change in the size or scope of work.
      4. Service Providers will turn up on time if an appointment has been made with the Service Seeker to inspect the job or complete the agreed work.
      5. Service Providers will not engage in any criminal or unlawful activity, for example taking a deposit and not completing the work.
      6. Users will not threaten or harass Wunderbuild or any users.