This Service Agreement sets out the basis on which Build Spider Ltd will provide our Service to you in accordance with the BuildSpider Construction Administration Platform Terms and Conditions. Your access to and use of our Service constitutes your acceptance of the terms of this Agreement and the terms and conditions pertaining to of any external service provider to Build Spider Ltd supporting provision of our Service. Our Service is the provision of the online construction administration programme called BuildSpider.
Build Spider Ltd is committed to providing you with:
- 1. The highest levels of availability of our Service. We recognise that you need to have our Services available whenever you want or need to do business, and we strive to consistently exceed our service level commitments.
- 2. The highest possible security for your data. We recognise that you need to have total trust in the security provisions that we have made and we strive to continuously improve our security provisions. The appropriate system performance to ensure that our Service is usable at all times by your Users.
- 3. We continuously upgrade our infrastructure to ensure that the system performance meets your current and future business needs.
- 1. Build Spider Ltd warrants that the Service will be available to you at all reasonable times.
- 2. We will apply monitoring tools to our systems to continuously check the service availability and periodically we will look at our availability patterns over time to identify improvement opportunities. We will report significant service issues via email or Facebook as is deemed necessary (you can check on this at https://facebook.com/buildspider).
- 3. Availability of the Service does not include any scheduled down time. We operate a policy of continuous enhancements to our applications and services which may add significant new features to our Service. Periodic major releases can take several hours. We will notify you of any planned downtime. Under normal circumstances, we will initiate these maintenance activities during the non-peak hours to minimize interruption to your service.
- 4. Service availability does not include any time lost due to outages caused by you.
- 5. Service availability does not include time lost through events that are beyond our reasonable control including, but not limited to, failures of networks, equipment and circuits not operated by Build Spider Ltd.
- 6. It is your responsibility to ensure that you have a reliable connection to the Internet for your Users. Any failure or performance degradation of your connection to the Internet is outside of the scope of this service offer.
- 1. We will take reasonable steps to usual industry standards to ensure the security of your data and activity.
- 2. All of our staff and those of our service providers are professionals trained in providing an on-line service and any of your data that they require access to in order to provide our Service to you is protected under their Terms and Conditions of employment.
- 3. Your system administrators have control for granting and denying access to the applications provided within our service. It is entirely your responsibility to manage application access by your Users. We will control unauthorised use of the Service.
- 4. Your applications are all provided with a sophisticated security model that enables your Users to grant or deny access to data that they manage. It is entirely your Users’ responsibility to manage access to data stored within the Service. Other than to control unauthorised use of the Service, we will not change any existing User access settings without your permission. New settings added as part of service releases or new enhancements will have default settings applied at the discretion of BuildSpider.
- 1. Your applications will be hosted by our servers at our data-centres. We monitor the performance of the Service to ensure that it meets your on-going business needs.
- 2. Our hosting environments are scalable to meet your current and future needs. We monitor server capacity on an on-going basis without your intervention as you add new users and applications into your community.
- 3. Client-side factors affecting the performance of BuildSpider remain the responsibility of the customer and include using PCs of sufficient capacity with appropriate anti-virus protection and network bandwidth.
- 4. Build Spider Ltd reserves the right to archive transactional data older than 3 years where it is impacting performance or affecting reliability or the duration of the maintenance window.
The BuildSpider service includes automatic updates with enhancements to function from time to time;
- Users will receive the software update upon login (with a download enforced for desktop users);
- Updates will be in operation with pilot customers for an appropriate period before being circulated to the general community;
- Build Spider Ltd will where practical try to ensure backwards compatibility i.e. you can choose whether to turn on any new features or not using site settings;
- Details of the new features in an update will be available via email and/or “Notifications Centre” menu option.
In the event that the Service becomes unavailable or system performance becomes unacceptable because of an application or system software problem, we may perform emergency patches and/or upgrades to restore the Service. We will perform this wherever possible during non-peak hours. Wherever possible we will keep you fully informed of progress via email if necessary.
- 1. We provide you with an email based support service monitored by NZ based teams working normal office hours. The support email is email@example.com.
- 2. We have a target initial response time of 24 working hours for all non-urgent requests and 4 working hours for urgent requests that concern system availability, critical function or performance issues.
At any time prior to the termination of this agreement providing all outstanding charges have been settled, you may request and will be provided with a copy of your data held by the Service in a Microsoft Access MDB file. The data and file will be provided on a time and materials basis at the ad-hoc consulting rate. The file will include summary booking data including payment details and/or summary maintenance schedule data including inventory for engineering. You may also export information yourself using the Service.
You agree with Build Spider Ltd that these further terms and conditions apply to the provision of our Service to you and you agree to be bound by these further terms and conditions.
- 1. Provide your authorised users using authorised devices for authorised purposes with a non-exclusive and non-transferrable BuildSpider licence granting the right to use the Service for the term of the Agreement;
- 2. Provide you with access to the Service via website addresses that are specific to your users’ use of the Service;
- 3. Provide the Service as defined in the BuildSpider Service Agreement at https://buildspider.co.nz/terms;
- 4. Invoice you monthly in advance for the Charges incurred through the use of the Service by your users and payment services will be handled on our behalf by Stripe.com payment services;
- 5. Regularly update the Service;
- 6. Comply with and be bound by the Agreement and these Further Terms and Conditions.
- 1. Pay on demand the Charges by Visa, Mastercard or electronic transfer to a nominated bank account;
- 2. comply with and be bound by the Agreement and these Terms and Conditions;
- 3. ensure that no access or use of the service is made available to any person who is not an authorised User and to implement an agreement with your users that ensures compliance with and takes incorporates the terms of the Build Spider Ltd service agreement;
- 4. be responsible for interoperability between your users’ equipment and the Service;
- 5. ensure that your users adhere to the terms of your agreement with them;
- 6. not damage, interfere with or harm the Website or Services, or any network, or system underlying or connected to them, or attempt to do so;
- 7. not use a robot, spider, scraper or other unauthorized automated means to access the Website or information featured on it for any purpose;
- 8. not enter into BuildSpider or use BuildSpider for anything that is illegal, offensive (including anything of a defamatory, pornographic, or racially or ethnically objectionable nature), stolen, or unsafe, anything which infringes copyright or other intellectual property rights, or any information which is prohibited by, or violates any law. You are responsible for ensuring that any use of BuildSpider by you does not breach this clause C(8). You agree that BuildSpider may disclose your personal information, including your name and contact details, to the relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) if we consider that you are in breach of this clause C(8) at any time;
- 9. ensure the regular automated updates to the BuildSpider desktop client are not blocked by your firewall(s) or security settings on client PCs. Blocking these updates compromises the security of the overall BuildSpider service and will result in the service being suspended to one or more client PCs in the interests of security, stability and safety;
- 10. ensure your client PCs are loaded with the pre-requisite version of Microsoft Framework and update that version on all PCs upon request in a timely manner in the interests of security, stability and safety;
- 11. ensure your firewall(s) whitelist and allow full port 443 access to all website and web-service URLs supplied by BuildSpider.
- All intellectual property rights in all software and content supplied to you remains the property of Build Spider Ltd. You will comply with the terms of any agreement required by the owner of intellectual property rights in all software and content supplied to you as notified to you.
- 1. You agree that neither Build Spider Ltd nor its Service partners shall, under any circumstances, be held responsible or liable for situations where the data stored or communicated through the Service are accessed by third parties through illegal or illicit means beyond Build Spiders Ltd’s or its Service Partner’s (as applicable) reasonable control. Electronic communications as provided within the Service are private, and only under situations where explicitly imposed by law will such communications be accessed, intercepted, disclosed, or used without the consent of at least one of the parties to the communication. Such access, interception, disclosure or use will, to the extent admissible under the applicable laws, be reported to the affected user(s) and to you, allowing the affected user(s) to seek any available protection measures in advance.
- 2. Although we will not systematically monitor the content that is submitted to, stored on or disseminated via the Service, we reserve the right, at our sole discretion, to edit or delete any information or other content that evidently violates the standards for content laid out in the Agreement.
- 1. All information and material submitted by you or your users and accepted by us via the Service by way of any contribution to the Service shall be deemed to be and shall remain the property of you and your users providing all outstanding Charges are settled. Providing all outstanding Charges are settled, you can download your information at any time and for any reason via the Service, without any assistance from BuildSpider.
- 2. You hereby grant us the rights to copy and distribute such submitted information and material solely to the extent necessary to allow us to make the same available via the Service and at all times under the terms of the Agreement.
- 3. You hereby grant us the right to amend such submitted information at your request solely to the extent necessary to rectify faults.
- 1. We do not warrant that the Service provided will be uninterrupted or error free, nor do we make any warranty as to the results to be obtained from your use of our Service.
- 2. You agree that your access to and use of our Service is on the basis that all warranties, descriptions, representations and conditions as to fitness, suitability for any purpose or otherwise, whether of a like nature or not, and whether expressed or implied by law, trade custom or otherwise, are expressly excluded from this Agreement to the extent permitted by law.
- 3. Build Spider Ltd may facilitate payment by credit card through Stripe (stripe.com) or other facilitator appointed by Build Spider Ltd (“facilitator”) and you agree to be bound by any facilitator’s terms and conditions.
- 4. While Build Spider Ltd has systems in place to reduce the risk of credit card fraud, it is not responsible for protecting you from credit card fraud. Build Spider Ltd’s fraud protection systems may from time to time block legitimate credit card payments. In these cases, payment will need to be made by other means.
- 1. We are not liable to you (whether as a result of breach of the Agreement, under this Service Agreement, negligence or other tort or otherwise) for any indirect, incidental, special or consequential damages or losses arising out of access to or use of the Service or inability to access or use the Service or out of any breach of any warranty including, without limitation, damages or losses not directly resulting from acts of god or events of similar case or the consequences of viruses received by you via the Service, even if we are advised of the possibility of such damages or losses.
- 2. In any event our liability to you for direct damages and losses (whether as a result of breach of this Service Agreement, negligence or other tort or otherwise) is limited to the fees you have paid to us under this Service Agreement during the one (1) immediate month prior to the event that triggered our duty to compensate you hereunder.
- 1. You will indemnify and hold harmless Build Spider Ltd and its Service partners from and against any and all direct losses, liabilities, damages, costs, expenses, actions and claims of whatever nature or kind arising out of or in connection with your access to and use of the Service. Both parties expressly exclude any indirect or consequential, punitive damages, costs, expenses or other claims for consequential compensation whatsoever, for any pure economic loss which arises out of or in connection with this Agreement.
- 1. We reserve the right at our absolute discretion at any time and without prior notice to remove, amend or vary any of the software or content supplied in connection with our Service, provided such alteration or amendment does not require any material change to this Service Agreement. We will notify these changes to you as soon as practicable.
- 2. We reserve the right at our discretion and at any time and without notice to change the hosting data centre, provided such alteration or amendment does not require any material change to this Agreement.
- 3. You can elect to change the pricing plan option selected by you at any time and in that case then the new pricing takes effect immediately from the next billing date. If you elect to reduce the plan there will be no refund for any unused portion of the charges. If you elect to increase the plan then Build Spider Ltd has the right to make additional charges for the period from the date of implementation of the change of plan to the end of the current billing period.
- 4. We reserve the right at our absolute discretion at any time to alter and/or amend this Service Agreement upon giving you reasonable notice in advance of any such amendment taking effect.
- 5. If, upon receiving any such notice, you do not wish to continue with our Service, you may terminate the Service Agreement on 30 days written notice to us (relevant period of notice) and the amendments will not be applicable to you during the 30 days’ notice period.
- 6. You will be deemed to have accepted any alteration and/or amendment to the Agreement and/or the Service if you continue to use the Service after the relevant period of notice has expired.
- 1. You agree that the use of our Service by anyone from your organisation or any of your users, in any way, will be chargeable to you in accordance with the provisions of this Service Agreement and the pricing plan which you select at sign up subject to any variation resulting from a change of pricing plan.
- 2. In the event that we do not receive payment of the Charges due on the due date, we reserve the right, at our sole discretion and without notice to you, to undertake any or all of the following actions:
- i) turn on a late payment reminder at login;
- ii) charge 2% compounding interest per month on the outstanding amount;
- iii) turn off non-essential services that incur costs to the Service e.g. updating the Disaster Recovery facility;
- iv) suspend our performance under this Service Agreement until payment is received. Build Spider Ltd reserves the right to disable operation of the online website, or reporting functionality, or all services;
- 3. You agree to refund to us the actual cost of collecting outstanding payments owed or charges incurred (including costs on a Solicitor/Client basis) due to any breach of this Service Agreement by you;
- 4. In the absence of a fixed term agreement, we reserve the right to increase or decrease monthly Charges from time to time. Details of any such change will be communicated to you by post or email. We will notify you of price changes 90 days in advance of the change taking effect;
- 5. The first 60 days of use shall be free of charge (“the trial period”). At the end of the trial period charges will calculated from the last day of the trial period payable monthly ion advance and charged and payable monthly in advance thereafter.
- 1. The Agreement will run for the term specified in the Service Agreement or where no term is specified, from the time your Service site is operational and will continue thereafter unless and until terminated by either of us in accordance with this Clause (xi).
- 2. Where no term has been specified, this Service Agreement may be terminated by either party giving the other party on 30 days written notice for any reason.
- 3. We may terminate the Agreement or suspend the performance of the Service to you, at our sole discretion, immediately and without notice (unless otherwise stated in the sub-clauses below) if:
- i) you breach this Service Agreement (subject to 7 days notification of the other party without remedy); or
- ii) bankruptcy or other insolvency proceedings are brought against you; or
- iii) you are no longer able lawfully to receive the Service; or
- iv) we do not receive payment of the Charges due.
- 5. You may also terminate the Agreement at your sole discretion, immediately and without notice (unless otherwise stated in the sub-clauses below) if:
- i) we breach this Agreement (subject to 7 days notification of the other party without remedy); or
- ii) bankruptcy or other insolvency proceedings are brought against us; or
- iii) we are no longer able lawfully to provide the Service.
- 6. If we suspend the Service, either pursuant to Clause (2) above, or under this Clause xi, you must continue paying the minimum Monthly Service Fee unless and until the Service is terminated or the term expires.
- 7. In the event of termination of this Agreement you will remain responsible for all Charges you have incurred prior to the date of termination.
- 8. In the event of termination of this Agreement we will remain responsible for providing the Service to you and your users up to the date of termination.
- 9. We reserve the right after the termination date to delete any email and application data that has been created through the use of the Service.
- 10. Termination of this Agreement does not affect any obligations that have arisen on either party prior to termination, except as otherwise indicate under the Agreement;
- 11. In the event of default or bankruptcy by you, use of and access to the Service is prohibited pending payment of outstanding charges. In this scenario, users (including any appointed custodians in the event of receivership) are not authorized to use the Service or access information held in the Service without prior written agreement by Build Spider Ltd. This information will be provided once outstanding charges have been settled.
- 12. If the term of this Agreement has been specified in any other agreement and that term has expired and the Services are still being provided then this Agreement will continue to apply and the provisions of clause xi2) shall apply.
- 1. Unless otherwise provided in this Agreement, any notices shall be sent by e-mail or post.
- 2. In the case of notices sent by email, such notices shall be deemed to be received when capable of being accessed by the recipient. In the case of notices sent to us by post, such notices shall be deemed to be received on the seventh business day after posting.
- 3. In the case of notices to you, we will use the postal or email address you have given us in your registration details or to any other address provided to us subsequently.
4. In the case of notices to us, the following details are to be used:
In writing sent by first class post to:
Build Spider Ltd
PO Box 411
Or by email to:
- 1. If any dispute arises out of this Service Agreement the parties will attempt to settle it by negotiation.
- 2. If the parties are unable to settle any dispute by negotiation within 21 days, then any party may invite the chairperson of the Arbitrators and Mediators Institute of NZ to appoint a mediator to enable the parties to mediate and settle the dispute. All discussions in the mediation will be without prejudice and will not be referred to in any later proceedings.
- 3. If the dispute is not resolved within a further 30 days after the appointment of a mediator, any party may then require the dispute to be referred to arbitration. If this clause is invoked the dispute will be referred to arbitration by a sole arbitrator in accordance with the Arbitration Act 1996 and the arbitration will take place in Auckland, New Zealand. The award in the arbitration will be final and binding on the parties.
- 4. Both parties will share the cost of mediation and/or arbitration equally.
- 1. If any part of this Service Agreement is deemed unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of these conditions will not be affected.
- 2. This Service Agreement shall be governed by and interpreted in accordance with the laws of New Zealand.
- 3. This Service Agreement together with the sign-up page details and pricing plans set out the whole of the parties’ agreement relating to our supply of our Service. They cannot be varied except as provided herein or as agreed in writing by both parties. In particular nothing said by any employee on behalf of Build Spider Ltd should be understood as a variation of this Service Agreement or an authorized representation about the Service or the nature and quality of items displayed thereon. We shall have no liability for any such representation being untrue or misleading.