Terms of Use – SpectaCalc

1 Acceptance of Terms of Use

1.1

This website, platform and any service offered under the name "SpectaCalc" ("Platform") is operated and owned by Spectacalc Pty Ltd (ACN 677 614 845) and its related entities or body corporates ("us", "we" and "our").

1.2

By using the Platform, you agree to these terms of use as supplemented by our Privacy Policy, your Subscription Plan and any other policy displayed on the Platform, all of which constitute a part of these terms of use (this Agreement). This Agreement constitutes a binding legal agreement between you and us, and your continued use of the Platform constitutes your acceptance and acknowledgement of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Platform.

1.3

We may initiate amendments or modifications to the Platform, the Terms of Use and/or the Privacy Policy by providing you with 14 days' notice. You will have an opportunity to agree or reject the amendments. If you do not agree to the amendments, then you must notify us within that time frame, otherwise, you will be deemed to accept the amended version of the Platform, the Terms of Use and/or the Privacy Policy, as relevant. Your continued use of the Platform indicates your continued acceptance of the amended Platform, Terms of Use and/or Privacy Policy, as relevant.

1.4

This Agreement will prevail over any other terms or agreement between you and us.

2 Preconditions to use

2.1

Your use of the Platform is conditional on you being over 18, or if you are a Minor then you represent that you have reviewed this Agreement with your parent or legal guardian to make sure that you and your parent or legal guardian understand this Agreement.

2.2

If you are a parent or guardian permitting a Minor to create an account, you agree to exercise supervision over the Minor's use of our website and account and assume all risks associated with the Minor's use of our website and their account, including the transmission of content or information to and from third parties via the Internet.

2.3

By visiting, registering, or using the Platform in any way, you warrant to us that you meet the requirements above. If the above requirements are not met, please cease using the Platform immediately.

3 Right to Access and Use the Platform

3.1

You will be able to view product specifications and shared calculations without registering an account on the Platform. You will be required to register and create a Specifier Account or a Manufacturer Account to access certain features of the Platform.

3.2

When you register as a Specifier or a Manufacturer, you will provide us with Personal Information. Please ensure that all Personal Information is accurate and current. We will handle all Personal Information we collect in accordance with our Privacy Policy.

3.3

You will be required to log in either via an acceptable social media platform, or by choosing a username and password (Account Login). You are responsible for keeping your Account Login secure and are responsible for all use and activity carried out under your Account Login. You must not share your Account Login credentials with any third party. We do not authorise anyone to use the service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your Account.

4 Licence

4.1

In exchange for you complying with all terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal, and revocable licence to access and use the Platform for the Permitted Purpose.

4.2

You must not:

(a)

use the Platform for any purpose other than the Permitted Purpose;

(b)

use the Platform in any way which is in breach of any applicable laws or which infringes any person's rights, including Intellectual Property Rights; or

(c)

do anything which may compromise or interfere with the supply of the Service or our systems, including without limitation introducing malicious programs such as viruses, worms, trojan horses, and email bombs.

5 Manufacturer Subscription Accounts

5.1

This clause applies only to Manufacturers with a Manufacturer Subscription Agreement.

5.2

Your Subscription starts on the date agreed between you and us and continues for the Subscription Term.

5.3

During the Subscription Term, you will be entitled to the inclusions as specified in this Agreement and in your Manufacturer Subscription Agreement, or as listed on the Platform from time to time.

5.4

At the end of each Subscription Term, your Manufacturer Subscription Agreement will automatically renew for another Subscription Term unless you notify us in accordance with clause 12.1. Please ensure you contact us if you want to cancel your Subscription.

5.5

Your Subscription Fee depends on the number of Product Listings and the number of affiliated Brands under which the products are listed, as specified in your Manufacturer Subscription Agreement. If the number of Product Listings or affiliated Brands that you wish to display becomes greater than the parameters of your current Manufacturer Subscription Agreement, you may upgrade your Manufacturer Subscription Agreement to include more Product Listings or affiliated Brands at any time during the Subscription Term. If you wish to reduce the number of Product Listings or affiliated Brands in your Manufacturer Subscription Agreement, you may do so only in relation to your next Subscription Term.

5.6

You can create multiple Users under one Manufacturer Subscription Agreement provided that any Product Listings must be owned and provided by the same Manufacturer and using the same Manufacturer Marks, unless otherwise agreed by us.

5.7

You agree and acknowledge that we may cancel your Manufacturer Subscription Agreement at any time and for any reason. If the cancellation is not due to your breach of this Agreement, we will provide you with a pro-rata refund of the then-current Subscription Fees paid by you.

6 Your Warranties

6.1

You warrant and agree that:

(a)

there are no legal restrictions preventing you from agreeing to this Agreement;

(b)

you are not Insolvent;

(c)

in using the Platform, you must:

(i)

deal with us politely and with respect;

(ii)

strictly comply with this Agreement (including any policy);

(iii)

obey any reasonable direction issued by us;

(iv)

obey all laws whatsoever (including international law) which may apply in respect of your use of the Platform;

(v)

not take any action that is likely to impose upon the Platform or our (or its third-party service providers) a disproportionately large load;

(vi)

not interfere with the proper working of the Platform or any activities conducted via the Platform, including by using any automated or manual software or process to "crawl", "spider" or engage in similar conduct in relation to the Platform;

(vii)

except to the extent the Copyright Act allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Platform;

(viii)

obtain and maintain any consents, licences, authorities, and permissions required for you to make use of the Platform (and you will provide evidence of this to us upon request);

(ix)

ensure that all information and documentation (including User Data) that you provide to us or upload onto the Platform in connection with this Agreement is true, correct, and complete;

(x)

yourself establish and maintain (at your sole cost) any Operating Environment necessary to use and obtain the benefit of the Platform.

6.2

If you breach this clause, we reserve the right to delete your account immediately and without refund of Fees.

7 Our Warranties

7.1

We warrant and agree that:

(a)

the Platform will perform materially in accordance with the Specifications;

(b)

the Platform will not infringe on the Intellectual Property Rights of any person;

(c)

we will maintain sufficient and appropriately qualified and experienced personnel to operate and provide the Platform in accordance with the Agreement.

8 User Data

8.1

Where the Platform allows you to upload any content to the Platform, you:

(a)

agree that your User Data will be stored on our servers and, in respect of Personal Information, in accordance with our Privacy Policy;

(b)

to the fullest extent permitted by law, grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use your User Data in any way (including, without limitation, by reproducing, modifying, and communicating your User Data to the public) and permit us to authorise any other person to do the same thing;

(c)

to the fullest extent permitted by law, consent to any act or omission by us which would otherwise constitute an infringement of your moral rights under the Copyright Act in relation to your User Data; and

(d)

acknowledge and agree that we may delete, modify, or otherwise exploit in any manner contemplated by the Copyright Act any of your User Data submitted to or via the Platform by you.

8.2

In each instance when you upload your User Data to or via the Platform, you agree to not add any of your User Data:

(a)

unless you hold all necessary rights, licences and consents to do so;

(b)

that may result in you or us breaching any law, regulation, rule, code or other legal obligation;

(c)

that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;

(d)

that would bring us or the Platform into disrepute;

(e)

that infringes the rights of any person;

(f)

that you know (or ought reasonably to suspect) is fraudulent, false, misleading, untruthful or inaccurate;

(g)

that contains unsolicited or unauthorised advertising (including junk mail or spam); or

(h)

that contains computer or software viruses, files or programs that are designed to interfere with the ordinary functionality of the Platform, or obtain unauthorised access to any system, information, security device belonging to us or any third party.

8.3

You agree and acknowledge that all content on the Platform (including your User Data) may be created, modified, flagged and deleted by us or other Users.

8.4

If you are a Manufacturer:

(a)

you grant to us a non-exclusive, non-transferable, royalty-free license for the Subscription Term to use your Manufacturer Marks and links to your website in accordance with this Agreement.

(b)

We acknowledge that we will not gain any right, title or interest in any Manufacturer Marks or associated goodwill, which will remain with you, and we must not make any use of them except in accordance with the terms of this Agreement.

(c)

You agree to indemnify us against any and all amounts finally awarded against us (including legal fees and costs) in connection with any third-party claim that the Manufacturer Materials or the Manufacturer Marks infringe any trademark, copyright, or trade secret, or libel, defame, or invade the rights of publicity or privacy of any third party or otherwise breach any law.

9 Support Services

9.1

We will provide you with the Support Services, provided that:

(a)

you are not in breach of any term of the Agreement and you are using the Platform as intended under this Agreement;

(b)

your Operating Environment meets the minimum requirements set out in the Specifications; and

(c)

you have provided all information requested by us in relation to Support Services.

10 Fees and Payment

10.1

Holders of Manufacturer Subscription Accounts may be required to pay for certain features of the Platform, in accordance with the terms of their Manufacturer Subscription Plan.

10.2

If you hold a Manufacturer Subscription Account you must pay the Fees to us without counterclaim or deduction, in accordance with your Manufacturer Subscription Plan.

10.3

Unless expressly stated otherwise, all amounts stated in or in relation to this Agreement are expressed exclusive of any applicable Tax, which will be added to those amounts and payable by you to us.

10.4

We may require one or more payment processors as a way to facilitate payment of the Fees. You must make payment by way of one of the payment processors offered (which we may modify from time to time at our sole discretion). You agree that:

(a)

any cost, fee, or other charges charged by such processor must be paid by you in addition to the Fees;

(b)

you must comply with the terms and conditions of the relevant processor.

10.5

You agree that we may change our prices, fees, payment service provider (including, without limitation, implementing new fees or costs, increasing existing fees, or requiring that you bear any associated third-party costs or charges) at any time, except that if you are already subscribed to a Manufacturer Subscription, any change to a Manufacturer Subscription will only take effect after the end of the current Manufacturer Subscription Term.

10.6

To the extent permitted by law, any Fees paid to us are non-refundable, and we do not provide refunds or credits should you cancel your Manufacturer Account during its current Manufacturer Subscription Term.

10.7

If you dispute a portion of any invoice, you must still pay all undisputed portions of the invoice.

10.8

In addition to any other right we have, if you fail to fully pay any amount owed to us for a period of 14 days or more, we may do any of the following at our sole discretion:

(a)

suspend access to the Platform until all amounts are fully paid (and without providing any refund or extension of the Manufacturer Subscription Term afterwards); and

(b)

charge you interest at the rate equivalent to 1% per month on any amounts owing to us.

11 Updates

11.1

We may implement (at our absolute discretion) Updates to the Platform from time to time. We will endeavour to provide you with reasonable prior written notice of any scheduled Update that is likely to affect the availability of the Platform or is likely to have a material negative impact on you, but we accept no liability for any downtime due to an Update.

12 Termination

12.1

If you are a Specifier:

(a)

you may close your Specifier Account at any time; or

(b)

we may terminate your use of the Platform and close your Specifier Account on notice to you if:

(i)

you breach any provision of this Agreement which cannot be remedied; or

(ii)

where the breach is capable of being remedied, you fail to remedy the breach within 14 days after receiving written notice from us requiring you to do so.

12.2

If you are a Manufacturer:

(a)

you may terminate your Manufacturer Subscription Agreement and close your Manufacturer Account provided that you notify us in writing at least 30 days before the end of your current Subscription Term. Such termination will then only take effect at the end of your current Subscription Term.

(b)

we may terminate your Manufacturer Subscription Agreement at any time provided we notify you in writing. Such termination will then only take effect at the end of the current Subscription Term.

(c)

Either party may terminate a Manufacturer Subscription Agreement with immediate effect by giving written notice to the other party at any time if:

(i)

the other party is Insolvent; or

(ii)

the other party breaches any provision of this Agreement which cannot be remedied, or where the breach is capable of being remedied, fails to remedy the breach within 14 days after receiving written notice from the cancelling party requiring it to do so.

12.3

This Agreement terminates automatically if we cease to operate the Platform for any reason (although any clauses which are reasonably intended to survive termination survive).

13 Effects of termination

13.1

On closure of a Specifier Account or termination of a Manufacturer Subscription for any reason:

(a)

you must immediately stop using the Platform, and we may take any action necessary to disable or terminate your access to the Platform;

(b)

each party must promptly return (where possible) or delete or destroy (where not possible to return), the other party's Confidential Information and intellectual property, and/or documents containing or relating to the other party's Confidential Information unless required by law or regulatory requirements to retain such information;

(c)

we may remove or delete all User Data after one month has passed from the day of termination;

(d)

you must, within 5 Business Days of termination, pay to us all Fees incurred and/or owing under this Agreement up to and including the date of termination or expiry. To the extent permitted by law, and except where expressly stated in this Agreement, a Manufacturer will not be entitled to a refund of Fees that have already been billed or paid; and

(e)

all of the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 13 (Effects of termination), 14 (Intellectual Property), 15 (User Data), 16 (Data Storage and Security), 17 (Confidentiality), 20 (Disclaimer and Limitation of Liability) and 21 (Release and Indemnity), and any other provision that is intended to operate after termination.

14 Intellectual Property

14.1

We own all Intellectual Property Rights in the Service, the Support Services, any associated documentation, and all improvements, modifications, customisations and derivative works, whether made by us or by you, and nothing in this Agreement transfers any of those Intellectual Property Rights to you in any way.

14.2

If you provide us with comments or suggestions relating to the Service, then all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), is assigned to us, and we may use the feedback for any purpose.

14.3

You must not, without our prior written consent:

(a)

copy or use, in whole or in part, any of our Intellectual Property Rights, including engaging in any form of automated data collection, extraction, or scraping (Data Scraping) of any content or data from the Platform. This prohibition includes the use of software, bots, spiders, crawlers, or any other automated means, as well as manual scraping or copying;

(b)

reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of our Intellectual Property Rights to any third party;

(c)

reverse assemble, reverse engineer, reverse compile or enhance the Service;

(d)

breach any Intellectual Property Rights connected with us or the Service, including altering or modifying any of our Intellectual Property Rights;

(e)

cause any of our Intellectual Property Rights to be framed or embedded in another digital asset,

(f)

create derivative works or reproductions of any of our Intellectual Property Rights or the Service;

(g)

resell, assign, transfer, distribute or make available the Service to third parties;

(h)

"frame", "mirror" or serve any of the Service on any web server or other computer server over the Internet or any other network;

(i)

alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers, or any other means of identification used on or in relation to the Service;

14.4

You acknowledge that we will suffer real and substantial damage due to a breach of this clause 14 and may seek injunctive relief for any actual or perceived breach, and damages alone are not an adequate remedy.

15 User Data

15.1

Except as otherwise stated in this Agreement, as between you and us, you own all Intellectual Property Rights in all User Data.

15.2

Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Service in an aggregated and anonymised format (Analytics). We and our licensors own all Intellectual Property Rights in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics. You agree that we may make such Analytics publicly available, provided that it:

(a)

does not contain identifying information; and

(b)

is not compiled using a sample size small enough to make the underlying User Data identifiable.

15.3

You grant us an irrevocable, perpetual licence (and consent) to use, process, copy, transmit, store and backup or otherwise access the User Data whilst you hold an Account with us, solely to:

(a)

enable you and your personnel to access and use the Platform;

(b)

diagnose problems with the Platform;

(c)

Update or otherwise modify or maintain the Platform;

(d)

train our staff; and

(e)

develop, test, market and offer other services.

15.4

In relation to any User Data which you provide to us or upload to the Platform, you represent and warrant that:

(a)

you are solely responsible for the User Data and the consequences of using, disclosing, storing or transmitting it;

(b)

you have obtained all necessary rights, releases and permissions to provide all your User Data to us and to grant the rights granted to us in this Agreement;

(c)

the User Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

(d)

any use, collection and disclosure authorised in this Agreement are not inconsistent with the terms of any applicable privacy policies.

16 Data Storage and Security

16.1

We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

16.2

We will use our best efforts to create scheduled backups of User Data stored on the Platform at regular intervals. If User Data is lost due to a system failure, we will attempt to restore the User Data from the latest available backup. However, we cannot guarantee that any backup will be free from errors or defects.

16.3

To the maximum extent permitted by law, we reserve the right to delete all User Data within 30 days of the closure of an Account.

17 Confidentiality

17.1

Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:

(a)

where permitted by this Agreement;

(b)

with the prior written consent of the Discloser;

(c)

where the Confidential Information is received from a third party, except where there has been a breach of confidence;

(d)

on a confidential, "needs to know" basis to the Recipient's personnel, auditors, insurers, agents, and professional advisors; or

(e)

where the Recipient is compelled to do so by applicable law, provided that it gives the other party written notice prior to disclosure.

17.2

The Recipient must only use the Confidential Information of the Discloser for the disclosed purpose and in connection with this Agreement.

18 Cookies

18.1

If you are a registered User of our Platform we will use "cookies" or similar technologies in order to ensure that you are able to stay logged into our Platform. Cookies help you personalise your online experience. A cookie is a text file that is placed on your hard disk by a web server. Cookies are not used to run programs or deliver viruses to your computer. Cookies are uniquely assigned to you, and can only be read by a web server in the domain that issued the cookie to you. One of the primary purposes of cookies is to provide a convenience feature to save you time. The purpose of a cookie is to tell the web server that you have returned to a specific page. For example, if you personalise/create pages on the Platform, a cookie helps us to recall your specific information on subsequent visits. When you return to the same page of the Platform, the information you previously provided can be retrieved, so you can easily use the customised features.

18.2

Usually you can manage cookie preferences and opt-out of having cookies and other data collection technologies used by adjusting the settings on your browser. If you choose to decline cookies, you may not be able to fully experience the interactive features of the SpectaCalc Platform.

19 Third Party Platforms

19.1

The Platform may contain links to websites that are owned and operated by third parties. We have no control over these external websites, which are governed by terms and conditions and privacy policies independent of us.

19.2

You acknowledge and agree that when you access a third-party website available via a link contained on the Platform:

(a)

you do so at your own risk and understand that you should review the privacy policy and terms and conditions of that website;

(b)

we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and

(c)

you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Platform.

19.3

The Platform may utilise, incorporate or depend on other third-party services (including, without limitation, hosting services) and you agree that to the extent permitted by law, we will not be responsible or in any way liable for any defect or interruption to the availability of the Platform or our services resulting from the failure of such third-party services.

20 Disclaimer and Limitation of Liability

20.1

To the maximum extent permitted by law, we exclude all liability and all Warranties of any kind, whether express or implied, statutory or otherwise, other than those set out in this Agreement.

20.2

Please be advised that some of the information, specifications, and calculations (Information) available on the Platform may have been submitted by other Users. While we strive to provide a reliable and informative Platform, we cannot guarantee the accuracy, currency, or completeness of any Information. The Platform is intended to serve as a supplementary resource only, and should not be used as the sole basis for making decisions. Users are strongly encouraged to consult directly with manufacturers' instructions, specifications, and official documentation before relying on any Information provided on the Platform. Before making any decision or taking any action that might affect your personal safety or the safety of others, it is paramount that you consult with a professional or specialist who can provide advice tailored to your situation. Use of the Platform and any reliance on the Information contained within is solely at the User's own risk. We disclaim all liability for any errors or omissions in the Information and for any actions taken based on reliance on such Information.

20.3

To the extent that any applicable law restricts our right to exclude Warranties, this Agreement must be read subject to those provisions and nothing in this Agreement is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, then, to the extent that we are entitled to do so, we limit our liability under such provisions to (at our discretion):

(a)

in the case of services, the resupply of the services or the payment of the cost of resupply; and

(b)

in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.

20.4

You acknowledge that complex software, hardware and applications are never wholly free from defects, errors, bugs and harmful components, and subject to the other provisions of this Agreement, we give no Warranty that the Platform will be wholly free from defects, errors, bugs and harmful components. We provide the Platform on an "as is" and on an "as available" basis without any Warranties arising out of any course of dealing or usage of trade. We make no Warranties that the Platform, our goods or services or any User Data will be available continuously, uninterruptedly, secure or not otherwise malfunctioning, lost or altered, as applicable. You acknowledge that we may suspend our services, access to the Platform, use of our equipment and/or display of any advertisement temporarily if we have reason to do so (including but not limited to maintenance, updates, or upgrades).

20.5

To the maximum extent permitted by applicable law and subject to clause 20.7, neither party will have any liability in connection with this Agreement for any indirect, consequential, special, incidental, or punitive damages, or any lost revenues, profits, savings, or goodwill.

20.6

Subject to clause 20.7, each party's maximum aggregate liability for damages in connection with this Agreement is limited to the Fees paid by you during the 12-month period before the event giving rise to liability, and if no Fees are paid by you, to $100.

20.7

Nothing in the Agreement excludes or limits either party's liability for:

(a)

its fraud or fraudulent misrepresentation;

(b)

its obligations under clause 21;

(c)

its infringement of the other party's Intellectual Property Rights;

(d)

its payment obligations under the Terms of Use; or

(e)

matters for which liability cannot be excluded or limited under applicable law.

20.8

All of the above subclauses are cumulative to one another.

21 Release and Indemnity

21.1

Each party agrees to indemnify (and defend and hold harmless) the Released Parties from all Claims and/or Loss arising in connection with:

(a)

the indemnifying party's failure to comply with any applicable laws; or

(b)

the indemnifying party's gross negligence or wilful misconduct.

21.2

We agree to indemnify (and defend and hold harmless) you and your Released Parties from any Loss finally awarded as a result of a Claim brought by a third-party alleging that your use of the Platform as contemplated in this Agreement directly infringes the Intellectual Property Rights of a third party, except to the extent any such infringement is caused or contributed to by your act or omission (IP Claim). If an allegation concerning a possible IP Claim is made, you must permit us to do one of the following (at our sole discretion):

(a)

modify, alter or substitute the Platform until the Platform no longer infringes the Intellectual Property Rights alleged in the relevant IP Claim. Such modification will be at our cost; or

(b)

terminate this Agreement or your access to the Platform.

21.3

You agree to indemnify (and defend and hold harmless) us and our Released Parties from any Loss or Claims in connection with:

(a)

any damage to person, property, personal injury or death;

(b)

your breach of any of clauses 4, 11, 19; or

(c)

your User Data.

21.4

As conditions to indemnification under this clause 21, the indemnified party must:

(a)

notify the indemnifying party promptly in writing of the Claim for which the indemnified party is seeking indemnification;

(b)

grant the indemnifying party sole control over the defence and settlement of each Claim;

(c)

provide the indemnifying party with reasonable cooperation in response to such party's requests for assistance (including all relevant information or materials);

(d)

not admit any fact, or settle or compromise a Claim, without the prior written consent of the indemnified party if such settlement includes an admission of liability on the part of the indemnified party; and

(e)

use its best endeavours to mitigate any Loss the indemnified party suffers as a result of the Claim.

21.5

In this clause:

(a)

Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

(b)

Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

(c)

Released Parties means a party and its officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, sponsors, and other third-party partners.

22 Unexpected Event

22.1

Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Unexpected Event, this Agreement will continue and remain in effect, but the Affected Party will not be in breach of this Agreement for that reason only for so long as the Unexpected Event persists.

22.2

The Affected Party must promptly after becoming aware of an Unexpected Event, give written notice to the other party of the nature of the Unexpected Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Unexpected Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

23 General

23.1

All notices must be in writing and must be made through the Platform or by email. Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a business day in the State, in which case they are deemed to be received on the next business day in the State.

23.2

Where there is a contradiction or conflict between different parts of this Agreement, the parts override one another (to the extent of the contradiction or conflict) in the following order:

(a)

the Manufacturer Subscription Plan (if applicable);

(b)

the Privacy Policy; and

(c)

these terms of use.

23.3

You must not assign, sublicense or otherwise deal in any other way with any of your rights under this Agreement. We may assign our rights under this Agreement at our sole discretion.

23.4

No breach of any provision of this Agreement can be waived except with the express written consent of the party not in breach.

23.5

If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions unless this would materially change the intended effect of this Agreement.

23.6

With the exception of clause 21, this Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.

23.7

The contents of this Agreement constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement, whether orally or in writing.

23.8

This Agreement is governed by the laws of the State and each party submits to the exclusive jurisdiction of the courts of the State and all courts of appeal from there.

24 Definitions

In this Agreement:

24.1

Agreement means these terms of use and also includes any relevant Manufacturer Subscription Agreement, Privacy Policy and all policies displayed on the Platform.

24.2

Business Day means a day on which banks are open for business in the State other than on a Saturday or Sunday or a public holiday.

24.3

Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement, but excluding information which:

(a)

is or becomes a matter of public knowledge through no fault, action, or omission of the Recipient or its personnel;

(b)

is rightfully received by the Recipient from a third party without a duty of confidentiality;

(c)

was already known to the Recipient at the time the disclosing party first made it available to the Recipient, except as a result of disclosure known by the Recipient to be made in violation of an obligation of confidence; or

(d)

was independently developed by the Recipient without reference to the information of the disclosing party.

Without limitation, our Confidential Information includes all know-how, trade secrets, technical information, specifications, data, Intellectual Property Rights, marketing procedures, enablement procedures, documentation, pricing information, client and client records, as well as business, corporate, or trade information.

24.4

24.5

Insolvent, in relation to a party, means when:

(a)

a party ceases, suspends, or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;

(b)

a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend the payment of all or a class of its debts;

(c)

a party becomes or is (including under legislation) deemed or presumed to be insolvent;

(d)

a party has a receiver, manager, administrator, administrative receiver, or similar officer appointed in respect of it or the whole or any part of its assets or business;

(e)

any composition or arrangement is made with any one or more classes of a party's creditors;

(f)

except for the purpose of solvent amalgamation or reconstruction, an order, application, or resolution is made, proposed, or passed for a party's winding up, dissolution, administration, or liquidation;

(g)

a party enters into liquidation whether compulsorily or voluntarily; or

(h)

any analogous or comparable event takes place in any jurisdiction in relation to a party.

24.6

Intellectual Property Rights mean all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these intellectual property rights include copyright and related rights, database rights, Confidential Information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs).

24.7

Manufacturer means any person or entity which manufactures products as specified on the Platform and holds a Manufacturer Account.

24.8

Manufacturer Account means an account which includes a subscription package or plan for the Platform that is applicable to a Manufacturer, as set out in a Manufacturer Subscription Agreement.

24.9

Manufacturer Marks means a Manufacturer's trademarks, service marks and logos used in the Manufacturer Materials.

24.10

Manufacturer Materials means any content or materials whatsoever (including but not limited to any Personal Information, information, data, text, graphics, photos, designs, trademarks, or any other artwork) that a Manufacturer uploads or inputs to the Platform, that is generated by a Manufacturer using the Platform or that it otherwise provides to us.

24.11

Manufacturer Subscription Agreement means any additional terms of use as agreed between a Manufacturer and us which are specific to that Manufacturer's use of the Platform during the Subscription Term. Such additional terms shall be deemed to be incorporated into this Agreement and shall be binding upon the parties in accordance with their respective terms.

24.12

Operating Environment means your operating environment, websites, facilities, systems, networks, devices, equipment, hardware, software, telecommunications, and connections (and includes your own Shopify store or other online shop).

24.13

Permitted Purpose means for your ordinary personal and business use.

24.14

Personal Information has the same meaning as in the Privacy Laws.

24.15

Platform means this website, platform and any service offered under the name "SpectaCalc."

24.16

24.17

Specifications mean the specifications of the Service as set out in the Website or the Subscription Plan.

24.18

Specifier means a user of the Platform who has registered a Specifier Account and is authorised by us to create and/or share calculations using the Platform.

24.19

Specifier Account means an account registered by a Specifier user of the Platform, which allows the Specifier to create and upload calculations to the Platform, and save calculation inputs, as set out in the relevant information page or pages on the Platform, or otherwise provided to you.

24.20

State means Western Australia.

24.21

Subscription Fees means the fees set out in a Manufacturer Subscription Agreement.

24.22

Subscription Term the period of time specified in a Manufacturer Subscription Agreement, and any renewal term in accordance with clause 5.4 (as the context requires).

24.23

Support Services means:

(a)

If you are a User or a Specifier, access to a general helpdesk during regular business hours on Business Days via email and/or a ticket system to assist you in resolving technical issues or answering questions related to the Service; or

(b)

If you are a Manufacturer, the Support Services listed in your Subscription Plan, and if none are listed, then as for a User or Specifier.

Any additional support services required by you (including any set up, implementation, customisation, integration or other development or professional services) may be provided at our sole discretion and may be subject to additional fees and our availability.

24.24

Tax includes a tax, levy, duty, or charge (and associated penalty or interest) imposed by a public authority. It includes income, withholding, stamp, and transaction taxes (including any goods and services tax or value-added tax, however named) and duties.

24.25

24.26

Third-Party Platforms means services or devices offered by other third parties which you may use in combination with or in integration with the Platform (including but not limited to, carriers, operating systems, mobile devices, software, hardware, applications, APIs etc.).

24.27

Unexpected Event means and includes such events, beyond the reasonable control of a party, that hinder, prevent or delay performance, in whole or in part, of any obligation under this Agreement including without limitation, fire, flood, casualty, earthquake, war, lockout, strike, epidemic, pandemics, riot, destruction of facilities, insurrection, material unavailability, telecommunications or internet failures, regulations or restrictions imposed by law, acts of the government or governmental requirements.

24.28

Update means any updates, modifications, changes or enhancements to the Service, including the adding or removing of any features or functionality, improvements, bug fixes and patches.

24.29

User means any user of this Platform.

24.30

User Data means any content or materials whatsoever (including but not limited to any Personal Information, information, data, text, graphics, photos, designs, trademarks, or any other artwork) which you upload or input onto the Platform, or that is generated by you using the Service.

24.31

Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.

24.32

We, us, our means Spectacalc Pty Ltd (ACN 677 614 845) and its related entities or body corporates.

24.33

You or your means any person who uses the Platform.

Last Modified: 2024-09-19