- 1.1. www.buildadvisor.com.au (Site) is a website that is owned, operated and maintained by BuildAdvisor Pty Ltd (ACN 164 027 927) (we, us or our).
- 1.3. Please read this Agreement carefully before you start to use the Site. By using, browsing or accessing the Site you indicate that you have read, understood and accept this Agreement and that you agree to abide by it. If you do not agree to this Agreement, you may not access or otherwise use the Site.
2. Accessing the site
- 2.1. The Site is a platform for displaying information about Builders in Victoria (including, but not limited to, builder reviews, tips and advice, questions, comments, suggestions, ideas or the like (for example, answers to questions, star ratings, tips and advice)(Consumer Generated Content), and the information contained therein is based on content provided by persons (via the ‘Rate a Builder’ form or the ‘Tips & Advice’ buttons on the Site) who have contracted or engaged a Builder to build, construct, repair or renovate their domestic or commercial property (Consumer).
- 2.2. Builders may publish or display their own information on the Site (including Advertising Materials) (Builder Generated Content). Consumer Generated Content is not commingled with Builder Generated Content and no priority is given to Builder Generated Content over Consumer Generated Content.
- 2.3. The Site is a portal or conduit providing you with access to and use of the Consumer Generated Content and Builder Generated Content (Third Party Content).
- 2.4. We do not recommend or endorse any goods, services, Consumer Generated Content or Builder Generated Content appearing on, or via, the Site. We disclaim all liability and responsibility arising from any reliance placed on such Consumer Generated Content and Builder Generated Content, and any products and services provided therefrom, by any visitor to the Site, or by anyone who may be informed of any of its contents, and we make no representations or warranties that use of such Consumer Generated Content or Builder Generated Content will not infringe intellectual property rights of any third parties.
- 2.5. Builders, Consumers and other users of the Site (and not us) are responsible for the accuracy of all representations made in any Consumer Generated Content and Builder Generated Content displayed, advertised or listed on the Site. We may, but are under no obligation to, monitor the Consumer Generated Content and Builder Generated Content. To the extent permitted by applicable law, we do not warrant that the products or service, Consumer Generated Content or Builder Generated Content available, displayed or offered on the Site are accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any of the products, services, Consumer Generated Content or Builder Generated Content offered on, or via, the Site. You agree to make your own enquiries to verify information provided and to assess the suitability of products or services before you purchase. If you choose to purchase a product or service advertised or listed by a Builder on, or via, the Site, or recommended or endorsed by a Consumer on, or via, the Site, you do so at your own risk. You are encouraged to seek professional advice before entering into any transaction with a Builder based on the information contained on the Site.
- 2.6. Any opinions, advice, statements, services, offers, or other information, Consumer Generated Content or Builder Generated Content expressed or made available by a Builder or Consumer are those of the respective author or distributor (and not us). We reserve the right (but we are under no obligation) to modify or remove any Consumer Generated Content or Builder Generated Content at any time.
3. Site changes
We reserve the right to change any provision of this Agreement in any way and we may, in our absolute discretion, add or remove any products and services provided in connection with the Site by providing reasonable notice to you in writing or by otherwise posting it on our Site. If you do not agree to these changes, you may terminate this Agreement in writing no later than 14 days after the date you received written notice of the changes or the changes were posted on our Site.
4. Your account and BuildAdvisor profile
- 4.1. You do not need to register or log-in to the Site in order to view the content and information on the Site, including Consumer Generated Content or Builder Generated Content.
- 4.2. Publishing, registering and displaying Third Party Content on the Site is free (except for Advertising Materials). We will charge a Builder to upload, display or publish Advertising Materials on the Site at our prevailing rates at the time.
- 4.4. You undertake not to disclose your password to any third party and take all reasonable measures to prevent disclosure of your password to any third parties. The owner of the Account is solely responsible for the activity conducted on the Account. Please notify us immediately if you become aware that your email address and password is being used without authorisation or any other security breach relating to your Account.
- 4.5. When access and using the Site, we may permit you to store data, preferences set by you, Third Party Content or other information for your convenience, but we are under no obligation to retain any such data, preferences, Third Party Content or other information.
- 4.6. You acknowledge and agree that any Third Party Content uploaded, displayed or listed by you on the Site may be viewed by others visitors or users of the Site, and therefore we are under no obligation to keep such Third Party Content confidential or private.
- 4.7. We may provide you with the ability to communicate with us and users of the Site through agreements, online forms, emails, IVR, electronic requests and enquires, bulletin boards, blogs, competition entries, online forums, inbound phone number services and other forms of electronic messaging (Communications Services). You acknowledge that Communications Services may be public and not private communications. Furthermore, you acknowledge that Communication Services should not be considered reviewed, screened, or approved by us.
5. Accessing and using the site
- 5.1. We will not be liable if for any reason the Site is unavailable (wholly or partly) at any time or for any period.
- 5.2. Access to the Site is permitted on a temporary basis, and we reserve the right, without notice, to:
- 5.2.1. withdraw or amend the products, services and the content we provide on the Site; and/or
- 5.2.2. charge you a fee to access or use certain features of the Site (for example, we may charge Builders a fee to publish, list or display Advertising Materials and Builder Generated Content).
- 5.3. From time to time, we may restrict access to some parts of the Site (wholly or partly).
- 5.4. You are responsible for making all arrangements necessary for you to have access to the Site. You are also responsible for ensuring that all persons who access the Site through your internet connection or mobile telephone are aware of this Agreement, and that they comply with them.
- 5.5. Our Site allows Consumers to publish and display Consumer Generated Content which is made available and accessible to other users or visitors to the Site. We protect your Personal Information by allowing a Consumer to select the anonymous function on the Site when submitting a building review (in which case the letters ‘Anon’ will appear alongside the Consumer’s building review). If the Consumer does not select the anonymous function on the Site then their first name will be displayed alongside their building review on the Site.
- 5.6. When accessing and using the Site, you must:
- 5.6.1. not attempt to undermine the security or integrity of our computing systems or networks or, where the Site is hosted by a third party, that third party’s computing systems and networks;
- 5.6.2. not use, or misuse, the Site in any way which may impair the functionality of the Site, or other systems used in the course of delivering the Site, or impair the ability of any other user to use the Site;
- 5.6.3. not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Site is hosted;
- 5.6.4. not transmit, or input into the Site, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law; or
- 5.6.5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Site.
- 5.7. By publishing Third Party Content on, or via, the Site, you agree only to publish content:
- 5.7.1. for which you hold all necessary rights, licences and consents to publish on, or via, the Site;
- 5.7.2. that is factually accurate and up-to-date;
- 5.7.3. if an opinion, that is a genuinely-held opinion; and
- 5.7.4. that complies with all applicable laws, regulations, rules, codes or other legal obligations having effect in the state of Victoria, Australia and the Commonwealth of Australia, and any relevant international laws.
- 5.8. By publishing Third Party Content on, or via, the Site, you also agree not to publish any Third Party Content that:
- 5.8.1. is in a language other than English;
- 5.8.2. is confidential information;
- 5.8.3. is, or is likely to be considered to be, vulgar, offensive, indecent or obscene, pornographic or sexually explicit, harassing, threatening or abusive, inflammatory, hateful or disparaging, seditious, blasphemous, is or may be a breach of another person’s privacy (such as by disclosing personal or identifying details of another person without authorisation) or otherwise objectionable according to the dictates of good taste and social acceptability (including by promoting, advocating or seeking to incite discrimination based on race, sex, disability, age, religion, nationality, sexual orientation or an unlawful or illegal act);
- 5.8.4. is inaccurate, deceptive, misleading or fraudulent, including, but not limited to, as a result of you having impersonated another person or misrepresented your identity;
- 5.8.5. is defamatory or harms or intends to harm someone in any way, including by causing unreasonable embarrassment, annoyance, distress or alarm to another individual, including us or our employees;
- 5.8.6. is illegal or unlawful or infringes the intellectual property of another person;
- 5.8.7. contains Malicious Code;
- 5.8.8. is unauthorised, unsolicited or undisclosed advertising or promotional material, including Third Party Content which makes excessive commercial references;
- 5.8.9. is designed to give the impression that the Third Party Content originates from us; or
- 5.8.10. is aimed at disparaging or damaging the reputation or goodwill of our business, the Site or any of our offices, employees or Related Bodies Corporate.
6. Your warranties
- 6.1. You warrant that:
- 6.1.1. you are 18 years of age or older;
- 6.1.2. you will not attempt any of the acts set out in clause 5 or engage or permit another person to do any of the acts set out in clause 5;
- 6.1.3. all Third Party Content provided by you to us through the Site or otherwise is true, accurate, complete and up to date at the time and you agree to maintain the currency of that information by updating us as soon as practicable after you become aware of any change;
- 6.1.4. you own or have the necessary licences, rights, permissions, and consents to use and authorise us to use any and all Third Party content submitted by you to us in accordance with the licences granted in this Agreement;
- 6.1.5. your use of the Site has not been made on the basis of any representations made by us regarding future features or functionality of the Site; and
- 6.1.6. you have the full power and authority to enter into this Agreement and perform your obligations contemplated by this Agreement.
- 6.2. You acknowledge and agree that:
- 6.2.1. you are solely responsible for maintaining the security of Third Party Content, registration details, your own personal and business information and computer systems, and you (and not us) will be responsible for any loss or damages arising (directly or indirectly) as a result of your failure to do so;
- 6.2.2. you are responsible for ensuring that your connection and the device you are using to connect to the Site are secure and free of Malicious Code;
- 6.2.3. we may publish the existence (but not the terms) of the relationship contemplated under this Agreement as part of our promotional and marketing activities from time to time; and
- 6.2.4. you will ensure that all people who use the Site with your permission or consent comply with the terms of this Agreement.
7. Third party content
- 7.1. If you are a Consumer, you warrant that:
- 7.1.1. you have not been offered any incentive or payment by a Builder, building developer or real estate agent to publish and display Customer Generated Content;
- 7.1.2. you will only publish and display Customer Generated Content if:
- (a) you are the person that commissioned the construction, repair or renovation of the property subject of the building review;
- (b) you are not the Builder or property developer subject of the review;
- (c) the Builder you review is the Builder contracted to build or renovate your property; and
- (d) the content or materials published and displayed by you on the Site does not breach the Intellectual Property Rights of a third party.
- 7.2. Builders, property developers and real estate agents are not permitted to review their own building projects or property developments on the Site.
- 7.3. A Builder may only publish and display Builder Generated Content (including advertising materials) on, or via, the Site. A Builder may publish and display Consumer Generated Content through the Site only if:
- 7.3.1. the Builder did not construct, repair or renovate the property subject of the review; and
- 7.3.2. the property was commissioned for their personal, household or domestic use.
- 7.4. Property developers, real estate agents and unregistered building practitioners, tradespersons or building contractors are not permitted to publish and display Third Party Content on the Site.
8. Our obligations
- 8.1. We shall provide you with access and use of the Site substantially in accordance with this Agreement.
- 8.2. In the event that we fail to provide you with access and use of the Site in accordance with clause 8.1, we will use commercially reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 8.1.
9. Disclaimer of warranties
- 9.1. To the maximum extent permitted by law, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision, or use of, the Site.
- 9.2. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
- 9.3. You acknowledge and agree that, to the extent permitted by law, we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Site (or any goods or services provided, listed, displayed or published in connection with the Site). We will not be liable if the Site is unavailable for any reason, including directly or indirectly as a result of:
- 9.3.1. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
- 9.3.2. negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
- 9.3.3. maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Site;
- 9.3.4. services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
- 9.3.5. a Force Majeure Event.
10. Limitations and indemnity
- 10.1. To the fullest extent permitted by law, we will not be liable to you or any third party for:
- 10.1.1. indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
- 10.1.2. loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of opportunity or expectation loss or loss of production; or
- 10.1.3. loss of or damage to any property or any personal injury or death to you or any third person, arising out of, relating to or connected to the provision or use of the Site and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
- 10.2. Under no circumstances will our aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the sum of $1.
- 10.3. You agree to defend, indemnify and hold us, our Related Bodies Corporate and our Personnel (the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
- 10.3.1. the use by you or any third party of the Site;
- 10.3.2. any breach of any third party’s Intellectual Property Rights or other rights caused by you; or
- 10.3.3. any breach by you or your Personnel of this Agreement.
11. Intellectual property rights
- 11.1. Using the Site does not give you (or anyone else) ownership of, or any right, title or interest in, the Site (or any Intellectual Property Rights contained therein) or any information, Third Party Content or technology that may be provided to, or accessed by, you in connection with your use of the Site, all of which is, and will remain, owned by us or our licensors (BuildAdviser IP).
- 11.2. All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Site or the Third Party Content will automatically vest in, and are assigned to, us (Developed IP).
- 11.3. Subject to clauses 11.1 and 11.2, Builders will remain the owner of their advertising materials, provided the Builder grants us (and our Related Bodies Corporate) a royalty-free, transferable, worldwide and perpetual licence to use and sub-license any advertising materials.
- 11.4. By giving any feedback to us, including making suggestions or requesting enhancements, you grant to us a royalty-free, worldwide, transferable, irrevocable, perpetual and sub-licensable licence to use or incorporate any aspect of your feedback into the Site.
Save as required by law, all information supplied by us in relation to our business, any fees, the Site or any terms of this Agreement is confidential and must not be disclosed by you to a third party (except your professional advisors) without our written consent. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including during any conversations with you). Upon the expiry or termination of this Agreement, such confidential information must either be destroyed or returned to us, as directed by us.
13. Third party websites
- 13.1. The Site or any Third Party Content may link to other websites, services, products or resources on the Internet, and other websites, services, products or resources may contain links to the Site. These websites are not under our control and are not maintained by us. We are not responsible for the content of those websites, resources, products or services, and accept no responsibility for them or for any loss or damage that may arise from your use of them (notwithstanding anything else contained herein). We only provide links to third party websites for your information and convenience.
- 13.2. Links, references or other connections to these websites, resources, products or services do not imply any endorsement of them or any association with their owners, operators or advertising material (as the context permits).
- 13.3. Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-Site pages and other websites or third party suppliers that you visit or transact with.
14. Dispute resolution
The parties may, before resorting to court proceedings (except interlocutory or interim relief), initially refer any dispute between the parties under or relating to this Agreement to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.
15. Suspension and termination
- 15.1. You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate your access to the Site, products and services, and/or your registration, or suspend or block your access to the Site, products and services.
- 15.2. Cause for such suspension or termination shall include, but not be limited to:
- 15.2.2. requests by law enforcement or other government agencies;
- 15.2.3. discontinuance of the Site (or any part thereof):
- 15.2.4. unexpected technical or security issues or problems; or
- 15.2.5. your failure to make any required payments or fees. Access will only be reinstated if you pay all monies due and owing to us under this Agreement (or any other agreement entered into between the parties). If your Account has been closed, you may then have to open a new Account as all your data may have been deleted, archived, or lost.
- 15.3. You agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you or any third party for any such suspension or termination.
16. Force majeure
We will have no liability to you (or anyone else) if we are prevented from or delayed in performing our obligations to you under this agreement (or otherwise), by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disaster, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of suppliers or sub-contractors, or shortage of suppliers, equipment or materials (Force Majeure Event).
- 17.1. Subject to clause 17.2, any notice to be given under this Agreement by us will be sent by email to the email address you provide for registration (or otherwise as notified to us in writing), and you must direct any written notices to us to Our postal address below.
- 17.2. Where a provision of this Agreement expressly requires “written notification” to be given, that notice must be given by post, and not by email.
- 17.3. A notice delivered by post will be conclusively taken to be duly given or made 2 Business Days after the date of posting (if posted to an address in the same country) or 7 Business Days after the date of posting (if posted to an address in another country).
- 17.4. A notice delivered by email will be conclusively taken to be duly given or made at the earlier of:
- 17.4.1. the time that the sender receives an automated message from the intended recipient’s information system confirming delivery of the email; and
- 17.4.2. the time that the email is first opened or read by the intended recipient, or an employee or officer of the intended recipient.
- 18.1. Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, except that we may assign, sell or transfer its rights or obligations under this Agreement to a Related Bodies Corporate or bona fide third party purchaser of our business.
- 18.2. Failure by either party to exercise or enforce any term of this Agreement will not be deemed a waiver of enforcement of that term or any other term. Other than as stated in this Agreement, the remedies provided are in addition to any other remedies available to a party at equity or law.
- 18.3. This Agreement and any other documents referred to in it, constitute the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, communications, representations and understandings related to its subject matter.
- 18.4. To the extent of any inconsistency between the provisions in the body of this Agreement and any BuildAdvisor Policy, these Terms and Conditions shall prevail.
- 18.5. Nothing in this Agreement is to be construed as constituting an agency, partnership, joint venture, or any other form of association between the parties in which one party may be liable for the acts or omissions of any other party. No party has the authority to incur any obligation or make any representation or warranty on behalf of, or to pledge the credit of, any other party.
- 18.6. Each party agrees that this Agreement is governed by and will be construed in accordance with the laws of the State of Victoria, Australia, and is subject to the exclusive jurisdiction of the courts of Victoria.
- 18.7. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- 18.8. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- 18.9. Clauses 4.4, 4.5, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17 and 18 survive termination or expiration of this Agreement.
19. Contact us
If you have any questions about this Agreement, please contact us via:
- 19.1. email: support@BuildAdvisor.com.au; or
- 19.2. Post: PO Box 19, Carlton South, Victoria, 3053.
In this Agreement:
- 20.1. Account has the meaning in clause 4.3;
- 20.2. Advertising Materials means a Builder’s business information, contact details, images of the Builder’s building or construction works and may include third party advertising;
- 20.3. BuildAdviser IP has the meaning in clause 11.1;
- 20.4. Builder means a building practitioner or building contractor registered or licensed with the applicable licensing authority in the State or Territory in which the building, construction, renovation or repair works are performed;
- 20.5. Builder Generated Content has the meaning in clause 2.2;
- 20.6. Business Day means a day which is not a Saturday, Sunday or a public holiday in Victoria;
- 20.7. Communications Services has the meaning in clause 4.7;
- 20.8. Consumer has the meaning in clause 2.1;
- 20.9. Consumer Generated Content has the meaning in clause 2.1;
- 20.10. Developed IP has the meaning in clause 11.2;
- 20.11. Force Majeure Event has the meaning in clause 16;
- 20.12. Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information, databases or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar rights which subsist or will subsist now or in the future in any part of the world;
- 20.13. Malicious Code means any code which contains a virus, worm, trojan horse or any other harmful or malicious component or program, including, but not limited to, keystroke loggers or other spyware, or similar computer code, files or programs designed to adversely affect in any way the operation of any computer software or hardware or telecommunications equipment;
- 20.14. Personnel means any director, officer, employee, agent, contractor, sub-contractor, consultant or volunteer of a party;
- 20.15. Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth);
- 20.16. Third Party Content has the meaning in clause 2.3; and
- 20.17. you means person or organisation accessing, using or relying upon the Site and may include Builders, Consumers, visitors and users (as the context permits).