ACONEX TERMS OF SERVICE AGREEMENT

(Australia and New Zealand)

All users of Aconex's cloud-based, collaborative project management and document management software platform and associated services (collectively, the "Services") must review and accept this Terms of Service Agreement ("Agreement") prior to using such Services.  As specified in this Agreement, users of the Services are divided into two categories, Paying Organizations and Non-Paying Organizations. A "Paying Organization" is an individual or entity that has executed an Aconex Services Order (defined below) and is responsible for paying fees to Aconex for use of the Services.  A "Non-Paying Organization" is an individual or entity that has been invited by a Paying Organization to use the Services in connection with a collaborative project. This Agreement is separated into two parts that contain provisions applicable to Paying Organizations and Non-Paying Organizations. You and the organization you are representing (hereinafter collectively, "you", "Paying Organization" or "Non-Paying Organization") may not use the Services without first accepting this Agreement. Your organization's acceptance will be deemed to occur on the earlier of the following events: (a) if your organization is a Paying Organization, upon its execution of the applicable Services Order, or (b) by clicking the online "Accept" button below. You should print or save a copy of this Agreement for your records.

The Aconex Bill of Rights

Irrespective of whether an Aconex customer is a Paying Organization or a Non-Paying Organization, Aconex's policy is to provide equal rights and protections with respect to the data that is uploaded or stored by all customers in connection with their use of the Services. 

The following protections are provided by Aconex to users of the Services:

-      Ownership rights do not change when data is uploaded and stored on the Aconex Platform.

-      Aconex will, in all cases, provide prior notice before terminating the Services to allow the individual or organization to preserve continuity of access to the Services, such as to enable a Non-Paying Organization to become a Paying Organization, or by allowing an organization to purchase data archive services or a copy of their data from Aconex.

-      Upon termination of the Services, Aconex will retain an organization's data in stasis for a minimum of 12 calendar months from the date of termination. During this period, the individual or organization may purchase data archive services or a copy of their data from Aconex. 

-      Aconex will use commercially reasonable efforts to limit Platform Downtime to less than sixty-six (66) minutes per calendar month during Business Hours (defined below).

AS SET OUT IN THIS AGREEMENT, THIS BILL OF RIGHTS MAY NOT APPLY WHERE THE PAYING ORGANIZATION ADVISES ACONEX THAT IT, ITS CLIENT OR A PARTICIPANT IN THE PROJECT IS AN AUSTRALIAN GOVERNMENT DEPARTMENT OR STATUTORY AUTHORITY AND SPECIFIC DATA SECURITY PROVISIONS APPLY TO THE PROJECT.

The following provisions operate differently depending whether an Aconex client is a Paying Organization or a Non-Paying Organization. As defined below, a Paying Organization is a client who has executed an Aconex Services Order in connection with a particular Project or enterprise arrangement or similar, or has otherwise committed to paying fees to Aconex for the Services delivered in connection with a Project or enterprise arrangement or similar. Please note that an organization may be a Paying Organization on one project and a Non-Paying Organization on another.

Click here to see the provisions applicable to Paying Organizations.

Click here to see the provisions applicable to Non-Paying Organizations.


 

PROVISIONS APPLICABLE TO PAYING ORGANIZATIONS   

1.              DEFINITIONS

The capitalized terms set forth below shall have the following meanings for the purposes of this Agreement:

1.1.          "Acceptable Use Policy" means the Aconex Acceptable Use Policy applicable to the Services, which policy is available for review and download on the Platform login page and the Aconex corporate web site.

1.2.          "Aconex" means the Aconex-affiliated entity specified on the Services Order or if none, Aconex Limited (ABN 49 091 376 091), a company incorporated in Australia, and, unless expressly included in the Agreement, excludes any Aconex Affiliates.

1.3.          "Aconex Affiliate" means (a) any entity controlling or controlled by Aconex Limited; and (b) any entity under common control with Aconex Limited, for so long as such common control continues to exist, where control means ownership either directly or indirectly of not less than 50% of the voting shares.

1.4.          "Aconex Reseller" means an entity authorized by Aconex to market, sell, offer or deliver some or all of the Services.

1.5.          "AEST" means Australian Eastern Standard Time.

1.6.          "AGD" means an Australian Government Department or Australian statutory authority.

1.7.          "Agreement" means the Terms of Service Agreement together with its Schedules and the Services Order, including any Schedules referenced in the Services Order.

1.8.          "Applicable Laws" mean laws, regulations, statutes, codes, rules, orders, permits, policies, licences, certifications, decrees, standards or interpretations imposed by any governmental authority that apply to this Agreement, including those within the Country where the Services are performed.

1.9.          "Business Day" means a day that is not a Saturday, Sunday or holiday observed by Aconex in Melbourne, Australia.

1.10.        "Client Data" means data related to a Project that the Paying Organization uploads to or transmits via the Platform and includes first level metadata (such as the time, date, distribution parties relating to a specific document or item of correspondence on any Hosted Platform) but excludes secondary metadata (such as the structure of database tables within the Platform code and folder structures established on the Platform).

1.11.        "Commencement Date" means the date stipulated in the Services Order.

1.12.        "Confidential Information" means any non-public information disclosed by either Party to the other Party in writing pursuant to this Agreement, which may be designated as "confidential" or "proprietary" (or with a similar legend) at the time of its disclosure.  If disclosed verbally or in some other manner that makes marking impractical then the parties will make diligent efforts to confirm the confidential nature of the material so disclosed within a reasonable amount of time following disclosure. Even if not so marked or otherwise identified, Client Data, any non-public components of the Platform and Services and the terms of this Agreement (including, without limitation, any Services Order) are Confidential Information.  Confidential Information also includes any Licensed Software provided by Aconex to a Client.

1.13.        "Data Archive" means a service Aconex offers relating to the continued preservation and access to Client Data following termination of a Project or termination of Services, as described in Schedule 2.

1.14.        "Defects and Liability Service" means delivery of Platform License and Hosting Services for a specified period following completion of a project. The term of the Defects and Liability Service shall be 12 months. The Defects and Liability Service does not include Implementation or Training Services. Activity (defined as the number of transactions recorded on the Platform) of the Platform License and Hosting Services during the Defects and Liability Service is limited to less than 20% of the monthly average Activity before the completion of the project(s). In the event that Activity during the Defects and Liability Service exceeds 20% of the monthly Activity, additional Fees shall apply in proportion to the excess.  Defects and Liability Service consists of the delivery of Platform License and Hosting Services for a specified period following completion of a project.

1.15.        "End of Service Date" means the date all Services provided by Aconex in accordance with the Agreement will cease, as noted in the Services Order. 

1.16.        "Fees" means the amounts(s) payable by a Paying Organization to Aconex pursuant to this Agreement for all the Paying Organization's and all Non-Paying Organizations' access to and use of the Services with respect to a Project, as specified in the applicable Services Order and this Agreement.  Fees may be payable on a one time basis (e.g., implementation fees for configuring and deploying the Services or a lump sum payable in advance use of the Services) or on a recurring basis (e.g., monthly or other periodic fees for use of the Services), or any other basis agreed upon in writing by Aconex and the Paying Organization.

1.17.        "Force Majeure Event" means any forces of nature, disruptions to the internet infrastructure, public bandwidth shortages, industrial action, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemics, lock-outs, strikes and action or inaction by a government agency (including any quasi-government agency) which causes a Party to be prevented or delayed in performing its obligations, excluding events caused or contributed to by the negligence, default, act or omission of a Party or its agents, contractors and employees. 

1.18.        "Good Industry Practice" means, in relation to any undertaking and any circumstances, the exercise of the skill, diligence, prudence, foresight and judgment which would be expected from a highly skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances, applying the best standards currently generally applied in Aconex's industry.

1.19.        "Intellectual Property Rights" means patents, copyrights, trademarks, trade secrets, and all other proprietary rights recognized in any jurisdiction worldwide, and all applications and registrations therefore.

1.20.        "Licence Agreement" means the end user license agreement accompanying the Licensed Software which governs the use of that Licensed Software available at http://www.aconex.com/Aconex-Software-Licence-Agreement-V01

1.21.        "Licensed Software" means a software product, in object code form, supplied by Aconex in connection with any of the Services and includes (but is not limited to) Local Copy, Digital & Smart Manuals and Smart Manuals Dynamic & the Mobile application. Licensed Software includes any Documentation included in, or provided for use with, such software or that accompanies the License Agreement.

1.22.        "Materials" means all manuals, data, documents, and information that are prepared, written, made accessible, provided or developed by Aconex or its licensors in connection with the Services, including help desk and technical support documentation.

1.23.        "Monthly Fee" means the monthly Fee(s) for Services as specified in any Services Order. If (a) the Fees for any Services are partly or fully payable up front, or (b) the Fee(s) for any Services are partly or fully payable on a periodic basis other than monthly, then in both cases Monthly Fee means the amount calculated by dividing the total Fees by the number of months covered by the Services Order.

1.24.        "Non-Paying Organization" means any organization that is invited and/or authorized by the Paying Organization to use the Services with respect to a Project by either the Paying Organization any organization that is invited and/or authorized to use the Services and has accepted the standard Terms of Service Agreement (together with its Schedules) on the Platform and is not required under a Services Order to pay Aconex or an Aconex Reseller for access to and use of the Services.

1.25.        "Novation Agreement" means Aconex's standard novation agreement used to novate the rights and liabilities from a Paying Organization to a third party upon request and in accordance with Section 18.5.

1.26.        "Optional Services" means the services specified in Schedule 2.

1.27.        "Party" means either Aconex or the Paying Organization as the context dictates, and "Parties" means Aconex and the Paying Organization, as the context dictates.

1.28.        "Paying Organization" means the entity specified as the contracting party (other than Aconex) in a Services Order, (or similar document).

1.29.        "Personal Information" has the meaning given to that term in the Privacy Legislation.

1.30.        "Platform" means the object code version of the computer software application(s) owned by or licensed to Aconex that is made available by Aconex or its agents to Paying and Non-Paying Organizations in connection with this Agreement, together with any associated Materials. The Platform also includes any upgrades, improvements, bug fixes, new versions and/or derivative works of such software or Materials.

1.31.        "Platform License" means each license to access and use the Platform granted to the Paying Organization under this Agreement.

1.32.        "Price List" means Aconex's standard price list for Services provided directly to its customers, as may be changed from time to time at Aconex's discretion and which is available from Aconex.

1.33.        "Privacy Legislation" means any current and applicable Australian Privacy legislation.

1.34.        "Privacy Policy" means the Aconex Privacy Policy, which is applicable to data received by Aconex from Aconex customers and users of its web sites, and which is available for review and download on the Platform login page and the Aconex corporate web site.

1.35.        "Project(s)" means the collaborative project(s) identified by the Paying Organization in the Services Order, subject to the scope and/or any other limitations specified in such Services Order.

1.36.        "Project Value" means the executed contract value for the scope to be delivered on a project utilising the Services, as further defined in the Services Order or other similar document.

1.37.        "Retention Period" has the meaning given to that term in Section 4.2.

1.38.        "Services Order" means an Aconex-approved order form with respect to a Project that is executed by Aconex or an Aconex Reseller and a Paying Organization that relates to the provision of the Platform and Services by Aconex or its agents to the Paying Organization and all Non-Paying Organizations under this Agreement. Each Services Order is incorporated into this Agreement by this reference.  Notwithstanding the foregoing, the Services Order may also form a separate agreement between a Paying Organization and an Aconex Reseller, e.g., with respect to payment terms, etc. ("Extraneous Terms").  Extraneous Terms are not incorporated into this Agreement.

1.39.        "Services" means the Platform and the associated services described in Schedules 1 and 2.

1.40.        "Standard Services" has the meaning given to that term in Section 3.1.

1.41.        "Term" means the period defined in Section 2.

1.42.        "Variation" means a written variation to any aspect of this Agreement complying with Section 18.7.

2.              TERM

2.1            Term. The term of the Agreement commences on the Commencement Date and concludes on the End of Service Date unless terminated earlier. Notwithstanding the foregoing, in the event that Client purchases an Online Data Archive described in Schedule 2, then the term of this Agreement (for the purpose of the Online Data Archive Service) shall be extended for the duration of the period of the Online Data Archive as specified in the Services Order.

3.              SERVICES

3.1.          Standard Services.   In consideration of the Paying Organization's timely payment of all applicable Fees and compliance with the terms and conditions of this Agreement, Aconex will, during the applicable service term, provide the Paying Organization and all Non-Paying Organizations with the Services ("Standard Services") as are specified in the Services Order and Schedule 1 of this Agreement, pursuant to the terms and conditions of this Agreement. Aconex will use commercially reasonable efforts to provide the Services according to any schedule referenced in the Services Order.  

3.2.          Optional Services, as described in Schedule 2 (and including any new Optional Services offered by Aconex in the future) may also be requested by the Paying Organization from Aconex, which if accepted by Aconex, will be subject to the payment of additional Fees and may be subject to execution of a separate Services Order, at Aconex's discretion.

3.3.          Other Services.  Any products or services, other than the Services specified in this Section, that Aconex makes available to its customers for a Fee.

3.4.         PLATFORM USE OBLIGATIONS

3.4.1.      Confidentiality of Username and Password. The Paying Organization is responsible for maintaining the confidentiality of the access credentials (e.g., username and password) used by it and/or its end users to access the Services and agrees that it will not share access credentials among users or disclose those credentials to any third party.

3.4.2.      Use of Data. The Paying Organization acknowledges that by transmitting and receiving data to and from the Platform, the Paying Organization is making information available for the use of Non-Paying Organizations and the retraction of such information may negatively affect those Non-Paying Organizations. Aconex may, as a condition to complying with any request to retract or delete data from the Platform, require the Paying Organization to execute a consent letter (in addition to obtaining a consent from other users that, at that time, have received or are permitted to view the proposed retracted or deleted documentation) prior to deleting or retracting the relevant data.  Where a document is uploaded to the Platform in manifest error and has not, at the time of the Paying Organization's request to retract or delete such document, been viewed by any of the relevant Non-Paying Organizations, Aconex will waive the requirement to obtain any consent letters from such third parties.

3.4.3.      Notice to Terminate a Non-Paying Organisation's Access.  The Paying Organization acknowledges that upon written request to Aconex to remove a Non-Paying Organisation from a Project, Aconex will provide the Non-Paying Organization with 14 days' notice before terminating its access to the Project.

3.4.4.      Other Obligations. The Paying Organization understands and acknowledges that Aconex's ability to provide the Services is dependent on the Paying Organization and each Non-Paying Organization undertaking any agreed or necessary obligations required to facilitate the delivery of the Services. The Paying Organization acknowledges that failure to perform any such obligations may result in a failure to receive Services, which shall not relieve the Paying Organization of any obligation to pay Fees.

4.              CLIENT DATA

4.1.          Right to Use. The Paying Organization grants Aconex a nonexclusive license to use Client Data to deliver Services to authorized users of the Platform, solely in connection with the Project(s). The Paying Organization further grants Aconex a nonexclusive, worldwide, perpetual license to use Platform usage data (such as, by way of example and not by way of limitation, numbers of documents uploaded) in an aggregated form that does not identify individual persons or organizations, in order to compile statistics regarding use of the Services and/or to improve the Services.

4.2.          Retention of Data. Upon termination of the Services, Aconex will retain the Paying Organization's data for a minimum of 12 calendar months from the date of termination. Provided that the termination of Services is not attributable to the Paying Organization's material breach, the Paying Organization may, during the Retention Period, purchase a Data Archive, subject to its payment of fees to Aconex at the rates specified in the Services Order (or if no rates are specified in the Services Order, the fees specified in the Price List). Aconex will not be liable for any damages of any kind in connection with its decision to not retain Client Data after the expiration of the Retention Period.

4.3.          Warranty regarding Client Data and Use of the Services. The Paying Organization warrants that (a) it has appropriate and sufficient rights in Client Data to use it in a manner consistent with the applicable terms of this Agreement, and (b) neither Aconex's use, processing and/or storage of Client Data in accordance with this Agreement nor the Paying Organization's use of Client Data as contemplated hereunder will violate applicable laws or this Agreement. Aconex is not obligated to screen Client Data, although Aconex reserves the right to do so and to suspend access to any individual item(s) of Client Data without prior notice should Aconex reasonably consider may breach this Agreement (including the Aconex Privacy Policy and Acceptable Use Policy) or any applicable law. Aconex will notify the Paying Organization as soon as practicable if Aconex suspends access to any individual item(s) of Client Data and will restore access to such Client Data as soon as, in Aconex's reasonable opinion, doing so would not place Aconex at risk of loss or damage. Aconex will not be liable for any damage or loss caused by Aconex's decision to suspend access to any individual item(s) of Client Data. The Paying Organization is entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, usefulness, timeliness and completeness of Client Data. The Paying Organization is responsible for ensuring Client Data is correctly addressed and on-time and does not represent a breach of any obligations to a third party or of law.

5.              PLATFORM SERVICE CREDITS

The credits specified in the table below are, to the extent permitted by law, the Paying Organization's sole and exclusive remedy with respect to any unavailability of the Platform.

Business Hours

Between 8:00 am and 8:00 pm (AEST) Monday to Friday during a calendar month.

 

Downtime During Business Hours (minutes)

 

Credit as a % of the Relevant Monthly Fee

Less than 66

0%

66 to 668

2%

669 to 1337

5%

1338 to 4463

8%

4464 or greater

12%

"Business Hours" means the period between 8:00 am and 8:00 pm (AEST) Monday to Friday.

"Scheduled Downtime" means the period in which the Platform is unavailable (measured in minutes) due to planned downtime for maintenance, systems repair or systems upgrades of the Platform.

"Regular Maintenance Window" means a consistent (same time and day of the week) 120 minute period each week in which Scheduled Downtime is performed. No prior notice is provided to the Paying Organisation for Scheduled Downtime performed in the Regular Maintenance Window. The time and day of this window is defined on the Aconex support site, will be between 8:00 PM to 8:00 AM AEST, and is subject to change with 1 week's prior notice.

Aconex will provide 24 hours' prior notice to the Paying Organisation for any Scheduled Downtime that is required outside the Regular Maintenance Window. For Scheduled Downtime that is anticipated to be longer than 2 hours within a given week, Aconex must provide at least 1 week's prior notice.

"Downtime" means the period in which the Platform is unavailable (measured in minutes) during Business Hours in a calendar month, excluding (i) Scheduled Downtime; (ii) Downtime which is out of Aconex's control due to a Force Majeure Event and the first 30 minutes of any emergency, and; (iii) Downtime required as a result of a critical security breach.

To assess Downtime Aconex will test the Platform uptime every 3 minutes.  The Platform will be deemed unavailable at the time the Platform does not give a valid response to 2 consecutive Aconex tests and continues until, in Aconex's reasonable opinion, the Platform returns a valid response.

Any credit available to a Paying Organization under this Section will be calculated as a proportion of the Monthly Fee and be applied against the Fees payable for the month following the month in which the triggering Downtime occurred. The Paying Organization must claim any credit by sending notice of the same to Aconex within 10 Business Days of the end of the calendar month in which the Downtime occurred. Aconex is not required to provide a credit for Downtime claims that are not presented in writing within 10 Business Days of the end of the calendar month. In the event that Fees are not payable by the Paying Organization, Aconex will provide an equivalent credit note.

6.              FEES, PAYMENT TERMS AND INSPECTION

6.1.          Fees. The Paying Organization shall pay Fees to Aconex for use of the Services in accordance with the following terms of payment: (a) in advance, and in accordance with any payment schedule contained in the Services Order; (b) by the reasonable means and to the bank account stipulated on the invoice; and (c) within 30 calendar days of the issue date specified on Aconex's invoice. Except as expressly specified in a Services Order, all Fees shall be non-refundable. If the Paying Organization fails to pay any amount payable by it under this Agreement, in addition to any other rights, Aconex will be entitled to charge interest on the overdue amount, payable by the Paying Organization immediately on demand, from the due date up to the date of actual payment at the rate of 2% per annum above the prevailing base lending rate quoted by the Commonwealth Bank of Australia (or, if less, the maximum amount permitted by applicable law). Aconex is not entitled to charge such interest on payments disputed and withheld by the Client in accordance with Section 6.2.

6.2.          Disputed Invoices. If the Paying Organization in good faith disputes the whole or any portion of the amount claimed in an invoice submitted by Aconex, the Paying Organization will pay the portion of the amount stated in the invoice which is not in dispute and will notify Aconex in writing on or before 5:00 PM (AEST) on the 10th Business Day following delivery of the invoice, which notice will set forth the reasons for disputing the remainder of the invoice. If the Paying Organization fails to notify Aconex by the foregoing deadline, the Paying Organization is deemed to have accepted the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Paying Organization will pay the amount finally resolved.

6.3.          Change in Scope or Law. Without prejudice to any other rights Aconex may have in the circumstances, if the Paying Organization is, in Aconex's reasonable discretion, using the Services outside of the scope identified in a Services Order or outside the scope of the Project, or if the scope of a Project (including the Project Value) materially increases, or there is a change in the law that materially affects Aconex's cost of delivering the Services, Aconex may charge the Paying Organization additional Fees for use of the Services, which additional Fees shall be proportional to the additional scope of use or the actual amount of any increased cost, as applicable and as determined in Aconex's sole reasonable judgment. If the Paying Organization objects to such increased Fees, then the Paying Organization must discontinue any excess or prohibited use of the Services within five (5) Business Days from Aconex's written notice of the additional fees, failing which the additional Fees will immediately become due and payable.

6.4.          Taxes. Aconex will bear and pay all applicable taxes of any country, including any political subdivision of any of them, if the tax is based on or measured by Aconex's net income, or payment of which is required to maintain a legal existence or a general right to transact business within the taxing jurisdiction, or based on Aconex's payroll or personal property used or consumed in the provision of the Services. Paying Organization agrees to pay all other taxes, including without limitation any value added tax and sales and use tax (including any tax imposed on payments similar to a sales and use tax, including withholding tax) imposed by any foreign, national, state or local taxing authority with respect to Aconex's delivery or Paying Organization's or Non-Paying Organizations' receipt of the Services and or the payment of Fees under this Agreement.  If Aconex is required to collect any value added tax or sales and use tax on behalf of any taxing jurisdiction, Aconex will provide to the Paying Organization invoices which separately state and clearly indicate the amount of tax, and the Paying Organization will remit any such tax to Aconex.

6.5.          Currency. All amounts payable under this Agreement shall be in the currency stipulated in the Services Order.

7.              INSPECTION.

On reasonable notice and not more than once annually, Aconex may request an independent third party selected by Aconex and reasonably acceptable to the Paying Organization verify that the Paying Organization is using the Platform solely in connection with the Project and is not otherwise using the Service in a manner that violates this Agreement (each, an "Inspection"). The Paying Organization shall reasonably cooperate with each Inspection and shall provide access to relevant documentation and records, for the purpose of confirming its compliance with the terms of this Agreement. Any information disclosed by the Paying Organization in connection with an Inspection shall be Confidential Information, except to the limited extent necessary for Aconex to enforce its rights under this Agreement.

8.              ACCEPTABLE USE OF SERVICES

The Paying Organization and its end users shall use the Services solely in accordance with this Agreement, all applicable laws and the Acceptable Use Policy. Aconex may modify the Acceptable Use Policy from time to time and such modifications shall be effective upon their publication on the Platform or Aconex's web site. If there is any conflict between the Acceptable Use Policy and this Agreement, then the Acceptable Use Policy shall take precedence.

9.              CONFIDENTIALITY

9.1.          Obligation. Both Parties acknowledge that Confidential Information disclosed by either Party pursuant to this Agreement may constitute valuable trade secrets of the disclosing Party. Each Party agrees to use the other Party's Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, such Confidential Information to any third party, without the disclosing Party's prior written consent. Each Party shall use strict measures to protect the secrecy and avoid disclosure or unauthorized use of the other Party's Confidential Information. Each Party shall exercise the same degree of care to prevent disclosure of the other Party's Confidential Information as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care.   

9.2.          Exceptions. Notwithstanding the foregoing, neither Party will be in breach of this provision in circumstances where the Party is legally compelled to disclose the other Party's Confidential Information or where the information is already in the public domain through no fault of the receiving Party, or is in the disclosing Party's possession without a duty of confidentiality at the date of disclosure, or where the disclosing Party discloses the terms of this Agreement on a strict "need to know basis" to its professional advisors, financiers, prospective financiers or partners or agents provided they are under a similar obligation of confidentiality as set out in this Section 9.  If a Party discloses the other Party's Confidential Information to any person, such disclosure does not excuse the disclosing Party from complying with its obligations under this Agreement and the disclosing Party is responsible for the acts and omissions of that person in respect of that Confidential Information as though they were the acts and omissions of the disclosing Party itself. 

9.3.          Notification of unauthorised disclosures. Each Party must promptly give notice in writing to the other Party if it becomes aware of any unauthorised or suspected unauthorised disclosure to any third party of any of the other Party's Confidential Information and provide the other Party with all information and assistance reasonably required by the other Party in respect of such unauthorised disclosure.

9.4.          Disclosure of Agreement.  Subject to Section 9.2, neither Party may disclose this Agreement or information in relation to this Agreement (including commercially sensitive information) in either printed or electronic form either generally or to the public or as a result of a specific request. 

10.           PERSONAL INFORMATION AND CLIENT DATA

10.1.        Use of Personal Information. In the course of receiving the Services under this Agreement, the Paying Organization may disclose to Aconex Personal Information in connection about the Paying Organization's employees, directors, officers, customers or suppliers, and/or other users of the Services. Aconex may also otherwise be provided with access to Personal Information in the course of delivering the Services. Where the Paying Organization provides Personal Information to Aconex, the Paying Organization is responsible for confirming that its disclosure and/or provision of Personal Information to Aconex, and Aconex's storage and/or use of such Personal Information in the manner contemplated under this Agreement is permissible under relevant Privacy Legislation. Where Aconex collects Personal Information directly from the relevant individual(s) (such as under Section 11.2), Aconex is solely responsible for ensuring that all acts (including collection, storage, use and disclosure) are in accordance with its Privacy Policy and otherwise permissible under the relevant Privacy Legislation. Aconex will act only as a data processor and will not re-use or re-disclose Personal Information for unrelated purposes outside the provision of the Services. Aconex will use commercially reasonable efforts to protect Personal Information from loss, destruction or unauthorized use or access, utilizing technical, physical and administrative security measures consistent with Good Industry Practice.  For the purpose of this Section 10, Personal Information is not data that is in any way created or extracted from Client Data with respect to a Project or Client Data that a Paying Organization uploads or transmits via the Platform (other than Personal Information provided as part of any registration processes or procedures).

10.2.         Additional purposes under Aconex's Privacy Policy. Aconex may collect Personal Information of the Paying Organization's employees, agents and contractors with whom Aconex has contact in business dealings and, subject to Aconex's compliance with Privacy Legislation, the Paying Organization acknowledges that Aconex may use that information in accordance with Aconex's Privacy Policy in addition to the purpose of performing Services under this Agreement.

10.3.        Transfer and Storage of Personal Information. Due to the global nature of its business, Aconex may, for the purposes contemplated under this Agreement, transfer or store Personal Information to any country in which Aconex operates, subject to its compliance with applicable laws and this Agreement. The Paying Organization agrees to such transfer in its own right and on behalf of those individuals and entities from whom it collected such Personal Information, where such transfer is for the purposes of performing the Services.

10.4.        Location of Client Data.  Aconex will store Client Data in Australia unless the Services Order specifies another location.  Aconex will not disclose or transfer Client Data outside of Australia (where Client Data is hosted on the Australian instance), unless otherwise agreed by the parties in writing.  Nothing in this Section prevents Aconex from changing the location for storing Client Data within Australia. 

10.5.        User Communications. Aconex may communicate with end users of the Services regarding non-Project specific matters relating to system usage, modules and support provided by Aconex.   

11.           INTELLECTUAL PROPERTY RIGHTS

11.1.        Aconex-owned IP.  Aconex and its licensors own all right, title and interest in and to the Platform and Services, including all Intellectual Property Rights therein and thereto, and any Materials or software or other inventions that may be developed or discovered by Aconex in connection with the Services. Except for the Platform License, no transfer of any Intellectual Property Rights will occur in connection with this Agreement. Notwithstanding anything to the contrary in this Agreement, Aconex has and retains the exclusive right to own, use and disclose, in the course of its business, all feedback provided by the Paying Organization with respect to the Services and Platform.

11.2.        Paying Organization-owned IP.  The Paying Organization retains all of its right, title and interest in and to its Client Data, and ownership of such Client Data shall not be transferred to Aconex under this Agreement.

12.           SUSPENSION OF SERVICES

Without affecting any other rights and obligations available to Aconex under this Agreement or at law or equity (including a right of termination and a right to claim damages), Aconex may suspend the Platform License and delivery of any or all of the Services if the Paying Organization continues to fail to pay any overdue amounts owed to Aconex under this Agreement, following communication by Aconex of such delinquency (including by way of a banner on the Platform).  In the event that Services are suspended under this Section, then, as a condition of reinstituting such Services, Aconex may require the Paying Organization to pay a reconnection fee and/or require the payment of all future Fees in advance.  Failure to pay overdue amounts after suspension of services may result in termination of the Agreement by Aconex in accordance with Section 16.1.

13.           LIMITED WARRANTY AND DISCLAIMERS

13.1.        Limited Warranty. Aconex warrants to the Paying Organization that it will use reasonable professional skill and care, consistent with industry standards, in providing all Services.

13.2.        Disclaimers. THE PAYING ORGANIZATION ASSUMES ALL RESPONSIBILITY FOR ITS SELECTION OF THE PLATFORM TO ACHIEVE ITS INTENDED RESULTS, FOR THE USE OF AND RESULTS OBTAINED FROM THE PLATFORM, AND FOR TAKING APPROPRIATE MEASURES TO PREVENT LOSS OF DATA. SUBJECT TO SECTIONS 13.1 AND 13.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACONEX DISCLAIMS ALL WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR STATUTORY GUARANTEES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ACONEX DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL BE AVAILABLE WITHOUT INTERRUPTION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13.3.        Certain legislation, including the Competition and Consumer Act (2010) (Cth), may imply warranties or conditions or impose guarantees or obligations on Aconex which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a certain extent.  This Agreement must be read subject to these statutory provisions.  If these statutory provisions apply, to the extent to which Aconex is entitled to do so, Aconex limits its liability in respect of any claim under those provisions to, in the case of Services, the supplying of Services again.

14.           LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO SECTION 13.3, ACONEX WILL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONSEQUENTIAL LOSS, LOSS OF PROFIT, INTEREST, REVENUE, BUSINESS, GOODWILL, SAVINGS OR ANTICIPATED PROFIT OR ANY LOSS OF OR DAMAGE TO ANY CLIENT DATA, OR LOSS OF OR INTERRUPTION TO CLIENT'S BUSINESS, IN EACH CASE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE PROVISION OF THE PLATFORM OR THE SERVICES INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE CAUSED BY A COMPUTER VIRUS OR OTHER MALWARE, REGARDLESS OF WHETHER ACONEX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF WHETHER A CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, UNDER NO CIRCUMSTANCES WILL ACONEX'S (INCLUDING ITS OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES AND AGENTS): (A) LIABILITY IN ANY MONTH BE GREATER THAN 100% OF THE MONTHLY FEE; AND (B) ACONEX'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE PAYING ORGANIZATION TO ACONEX UNDER THIS AGREEMENT THROUGH THE DATE THE CLAIM AROSE. FOR THE PURPOSES OF THIS SECTION, "LIABILITY" EXPRESSLY INCLUDES ANY AMOUNTS PAYABLE UNDER AN INDEMNITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15.           INDEMNITIES

15.1.        Aconex Indemnity.

15.1.1.    Obligation. Aconex shall defend or at its option settle any third party claim, action or proceeding brought against the Paying Organization alleging that the Platform as delivered to the Paying Organization and used as authorized in this Agreement, infringes any Intellectual Property Right of a third party and Aconex shall pay any final judgments awarded or settlements entered into to resolve such claim, action or proceeding; provided that the Paying Organization provides Aconex with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) all necessary information and assistance (at Aconex's reasonable expense) to defend and/or settle such claim. The Paying Organization may participate in the defense of a claim asserted hereunder after Aconex has assumed the defense or settlement, provided that the Paying Organization shall bear any legal fees and expenses or other costs it incurs in so participating. Aconex shall not be liable for any costs or expenses incurred by the Paying Organization when acting without Aconex's prior written authorization. Aconex may not settle or compromise any claim under this Section that requires the Paying Organization to admit liability or pay any money without the Paying Organization's prior written consent, which consent shall not be unreasonably withheld or delayed.

15.1.2.    Limit on Indemnity. Notwithstanding the foregoing, Aconex will have no liability for infringement claims arising from: (i) combination of the Services with other software or products not provided by Aconex, if the infringement would not have occurred if the Services had not been so combined; (ii) any modification of the Services, in whole or in part, by anyone other than Aconex, if the infringement would not have occurred but for such modification; or (iii) use by the Paying Organization of any specified release of the Platform after Aconex notifies the Paying Organization that continued use may subject the Paying Organization to such claim of infringement, provided Aconex provides the Paying Organization with a replacement release.

15.1.3.    Replacement Services. If any portion of the Services is held, or in Aconex's opinion is likely to be held, to infringe or misappropriate a third party's Intellectual Property Rights, or use of the Services is otherwise enjoined, then Aconex may at its sole option and expense, within a commercially reasonable period of time: (i) procure for the Paying Organization the right to continue using the Services; (ii) replace the Services with a non-infringing solution; or (iii) in the event that neither of the foregoing is reasonably practicable in Aconex's judgment, terminate the Platform License and/or this Agreement and refund any Fees pre-paid by the Paying Organization with respect to future delivery of the terminated portion of the Services.

15.1.4.    Entire Liability. THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF ACONEX, AND THE SOLE AND EXCLUSIVE REMEDY OF THE PAYING ORGANIZATION, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE PAYING ORGANIZATION'S USE OF THE SERVICES.

15.2.        Paying Organization Indemnity. The Paying Organization shall defend or at its option settle any third party claim, action or proceeding brought against Aconex, any Aconex Affiliate alleging that (a) the Paying Organization has breached any law or regulation in its use of the Services, Client Data, or Personal Information, or (b) the Paying Organization has misused any Client Data or Personal Information or infringed any third party's Intellectual Property Rights in its use of the Client Data or Personal Information, and the Paying Organization shall pay any final judgments awarded or settlements entered into to resolve such claim, action or proceeding; provided that Aconex provides the Paying Organization with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) all necessary information and assistance (at the Paying Organization's reasonable expense) to defend and/or settle such claim. Aconex may participate in the defense of a claim asserted hereunder after the Paying Organization has assumed the defense or settlement, provided that Aconex shall bear any legal fees and expenses or other costs it incurs in so participating. The Paying Organization shall not be liable for any costs or expenses incurred by Aconex when acting without the Paying Organization's prior written authorization. The Paying Organization may not settle or compromise any claim under this Section that requires Aconex to admit liability or pay any money without Aconex's prior written consent, which consent shall not be unreasonably withheld or delayed.

16.           TERMINATION

16.1.        Termination for Breach. Either Party may terminate this Agreement in the event that the other party commits a material breach of this Agreement and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other Party. Aconex may also immediately terminate this Agreement if the Paying Organization's access to the Services has been suspended under Section 12 (Suspension of Services) and the Paying Organization has not, in Aconex's sole judgment made a reasonable attempt to promptly resolve the basis for such suspension. Without prejudice to the foregoing, the parties agree a failure by the Paying Organization to pay Fees (other than Fees disputed in good faith in accordance with Section 6.2) when due constitutes a material breach of this Agreement.

16.2.        Termination for Insolvency. Aconex may terminate this Agreement by notice in writing if: (a) the Paying Organization is unable to pay its debts as and when they become due or becomes, threatens or resolves to become or is in jeopardy of becoming insolvent or subject to an order, proceedings or resolution for liquidation or dissolution (unless for the purposes of amalgamation or reconstruction,) or entering into a compromise or arrangement with, or assignment for the benefit of any of its members or creditors; (b) the Paying Organization, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or (c) there is a change of control of the Paying Organization.

16.3.        Termination without cause.  Provided that it has complied with Section 6 (Fees) at the date of termination, the Paying Organization may terminate the Services specified in a Services Order upon 90 days' prior written notice to Aconex, which notice must be delivered to Aconex within the first 90 days of the initiation of such Services.

16.4.        Effect of Termination. On termination of this Agreement, the Paying Organization's Platform License shall automatically terminate and the Paying Organization shall immediately cease using the Platform. The Paying Organization shall also return any Materials and Aconex Confidential Information to Aconex or comply with Aconex's instructions for the destruction of such Materials and Confidential Information. At Aconex's request, the Paying Organization will provide written confirmation certifying that all Materials and Aconex Confidential Information in its possession have been returned or destroyed. The termination of this Agreement shall not relieve the Paying Organization of its obligation to pay any Fees or other amounts owed to Aconex under this Agreement prior to the date of such termination.

16.5.        Survival. Sections 3.4.2, 4, 6.1, 6.4, 7, 9, 10, 11, 13.2, 14, 15, 16.2, 16.4, 17, 18 and 19 of this Agreement shall survive termination, howsoever occurring.

17.           GOVERNING LAW AND DISPUTE RESOLUTION

17.1.        Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of Victoria, Australia and the Parties submit to the exclusive jurisdiction of the state and federal courts located in the State of Victoria, Australia and any court that may hear appeals from any of those courts, for any proceedings initiated or pursued in connection with this Agreement, and waive any right they may have to claim that those courts are an inconvenient forum.

17.2.        Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of this Agreement concerning Confidential Information or Intellectual Property Rights, each Party agrees that the non breaching Party may have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages, in any court having jurisdiction. 

17.3.        DISPUTE RESOLUTION

17.3.1.    Negotiation. If any dispute arises between the Parties in respect of this Agreement, or any related document, a Party must: (a) issue a written notice to the other Party notifying them of the existence of a dispute; and (b) use good faith efforts to resolve the dispute through negotiation.

17.3.2.    Escalation. In the event that negotiations pursuant to Section 17.3.1 do not resolve the dispute within 15 Business Days (or such longer period as may be agreed between the Parties), the dispute will be referred to the respective chief executive officers (or their nominees - external counsel excluded) of each Party for good faith negotiations.

17.3.3.    Filing of Actions. Neither Party may file an action to resolve a dispute prior to 20 Business Days (or such other period as may be agreed between the Parties) after an escalation pursuant to Section 17.3.2.

18.           MISCELLANEOUS

18.1.        Force Majeure. With the exception of any payment obligations, neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent such delay is due to a Force Majeure Event. With the exception of payment obligations, to the extent a delay or failure of a Party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party's obligations will be suspended and neither Party will be liable to the other Party for a failure to perform its obligations as a result of a Force Majeure Event. If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds 3 calendar months, either Party may immediately terminate the Agreement without cause upon written notice to the other Party.

18.2.        No Reliance on Representations. The Paying Organization has not relied on any representation, undertaking, statement or understanding which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including marketing materials produced by Aconex. 

18.3.        Independent Contractors. The Parties are independent contractors. Aconex is not a party to any transactions a Paying Organization enters into with a Non-Paying Organization using the Platform or Services. Under this Agreement, Aconex and its personnel will never be employees, agents or partners of the Paying Organization, and are not engaged in a joint venture with the Paying Organization. Aconex shall have no liability arising out of any transaction or dealings conducted between the Paying Organization and Non-Paying Organizations or any other third parties through use of the Services.  

18.4.        Assignment. The Paying Organization may not assign this Agreement or delegate any of its obligations hereunder without Aconex's prior written consent. Any attempted assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

18.5.        Novation.  Provided there are no outstanding Fees, the Paying Organization may novate this Agreement (including payment of Fees) at any time to a third party, subject to Aconex's prior written approval (not to be unreasonably withheld) and execution of a Novation Agreement.

18.6.        Waiver. Any right of either Party under this Agreement may only be waived in writing, signed by the duly authorized signatory on behalf of the Party giving the waiver, and no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) shall operate as a waiver of the right or otherwise prevent the exercise of the right.

18.7.        Variations. The provisions of this Agreement will not be varied, except by express written instrument that makes explicit reference to this Agreement and is executed by authorized representatives of each of the Parties. Notwithstanding the foregoing, Aconex reserves the right to modify the Services and/or the terms and conditions of this Agreement at any time, but such modifications shall apply to Services Orders executed after the effective date of the change. Aconex will notify the Paying Organization of such modifications, either via email, the Platform, or in a manner deemed commercially reasonable by Aconex. 

18.8.        Severability. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal by any court or tribunal meeting the criteria set forth in Section 17.1, above for any reason, the remainder of this Agreement will remain otherwise in full force apart from such provisions or part provisions which will be deemed deleted or modified to the minimum extent necessary to remove the invalidity, unenforceability or illegality.

18.9.        Client Reference. Subject to the prior written consent of the Client (not to be unreasonably withheld, delayed or conditioned), Aconex may publicly issue a news release, publish a case study or pursue opportunities for joint media coverage regarding the Client's use of the Platform and may use the Client's name and logo and refer to the fact that the Client is a client of Aconex in its public website. Aconex may use the Client's name and logo and refer to the fact that the Client is a client of Aconex in its annual report, list of references or presentations to actual or potential clients without the Client's consent.

18.10.     United States Export Controls. The Services (including the Platform) use software and technology that may be subject to United States export control laws. The Paying Organization shall not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of the Services or any technical information related to the Services to any country for which such export or re-export is restricted by any applicable U.S. regulation or statue ("Restricted Country"), without the prior written consent, if required, of the U.S. government entity that has jurisdiction over such export or re-export. If the Paying Organization uses the Services from a Restricted Country., the Paying Organization is solely responsible for compliance with all applicable laws of such Restricted Country, including without limitation export and import regulations of Restricted Countries. The Paying Organization's failure to comply with this Section shall be a material breach incapable of remedy.

18.11.     No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity any rights, remedies or other benefits as a third party beneficiary. Without limiting the generality of the foregoing, Non-Paying Organizations may not enforce the rights granted to Paying Organizations under this Agreement and vice versa, under any circumstances.

18.12.     Entire Agreement. The documents comprising this Agreement contain the entire agreement between the Parties concerning its subject matter.  Any other document issued to Aconex by the Paying Organization including any additional and/or conflicting terms or conditions shall be inapplicable.

18.13.     Insurance Requirements.  Aconex shall maintain in force at all times during the term of this Agreement, sufficient insurance with a reputable insurance company as follows:

18.13.1. Professional indemnity insurance covering liability for loss or damage due to an act, error, omission or negligence;

18.13.2. Public liability insurance (including product liability); and

18.13.3. Workers compensation insurance as required by law, with insurance limits no less than limits as required by law.

19.           NOTICES

19.1.        Method of Communication. Any notice or consent delivered by either Party under this Agreement shall only be effective if it is: (a) in writing, sent by or on behalf of and at the express instruction of the Party giving it; (b) addressed in accordance with Section 19.3 to the Party to whom it is to be given; and (c) either: (i) sent via overnight delivery service (e.g., FedEx or UPS), or (ii) sent by fax and the machine from which it is sent produces a report that states that it was sent in full and the recipient does not alert the sender to the fact that fax was not received in a legible form by the close of business the next Business Day; or (iii) in the case of notices from Aconex to the Paying Organization, sent via the Platform.

19.2.        Deemed Delivery. A notice, consent or other communication that complies with this Section is deemed given and received: (a) if it is delivered or sent by fax: (i) by 5:00 PM (local time in the place of receipt) on a Business Day - on that day; or (ii) after 5:00 PM (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day - on the next Business Day; (b) if it is sent by mail: (i) within Australia - four Business Days after posting; or (ii) to or from a place outside of Australia - seven Business Days after posting; and (iii) if it is sent via the Platform - by 5:00 PM the next Business Day (local time in the place of receipt). 

19.3.        Addresses. Any notices from Aconex to the Paying Organization under this Agreement shall be addressed to the Paying Organization representative identified in the Services Order and delivered to the address or fax number specified in the Services Order or, if such information is not specified, the Paying Organization's representative will be the organization administrator as recorded in the Paying Organization's Services account, and the Paying Organizations' contact details will be the contact details recorded in the Paying Organization's Services account. Any notices from the Paying Organization to Aconex under this Agreement shall be addressed as follows:

Aconex Limited

Attn:  General Counsel

96 Flinders Street

Melbourne, Victoria 3000

Australia

 


 

SCHEDULE 1: STANDARD SERVICES

 

1.              Platform License. A non-exclusive, non-transferable, restricted Platform License for the term specified in Section 2, to access and use the functionality available within the modules of the Platform expressly included in the Services Order (subject to any restrictions specified in the Services Order) solely in support of the Project, within the scope specified in the Services Order, and in accordance with and subject to any specifications set forth in the Materials.

2.              Hosting Services. Making the Platform available for use via the public Internet, including unlimited data transmission by the Paying Organization and all Non-Paying Organizations to and from the Platform (subject to limitations set out in the Acceptable Use Policy), and unlimited storage of Client Data related to the Project during the applicable term of Services.

3.              Implementation Services. One or more group sessions with key stakeholders (designated by the Paying Organization, acting reasonably and taking into account Aconex's suggestions) who have primary responsibility for the success of the Project, or their designees, to define critical parameters for use of the Services, resulting in the preparation of a "Project Instruction" document which summarizes how the Paying Organization and all Non-Paying Organizations should use the Platform with respect to the Project, and includes guidelines for establishing appropriate Project processes such as document numbering conventions and version control rules.

4.              Training Services. The provision of one-to-many training modules delivered over the Internet or at a designated site, which site must be approved by Aconex in advance. In the event training is requested to be provided at a designated site (other than Aconex's offices) and Aconex agrees, the Paying Organization will reimburse Aconex for its reasonable travel and living expenses actually incurred in delivering such training.

5.              Maintenance and Support Services. Email and telephone help desk support provided to designated Paying Organization personnel, to assist the Paying Organization's end users to access and use the Platform on a 24/7 basis, provided in English and any other languages specified in the Services Order. Also included is access to a web-based support centre (English only) and maintenance updates and improvements to the Platform.

 


 

 

SCHEDULE 2: OPTIONAL SERVICES

1.              Online Data Archive. Following completion of a Project or termination of Services applicable to a Project, provided that such termination was not attributable to the Paying Organization's material breach and that the Paying Organization's account is not in arrears, the Paying Organization may purchase a Platform License to access the Platform and use the functionality available on the Platform with respect to a Project in the manner specified in Section 3.1.1, except that the Paying Organization may not:  (1) instruct Aconex to grant Non-Paying Organizations access to the Platform with respect to such data; (2) add new users; (3) share, transmit or send such data to other organizations; or (4) use the Platform to collaborate with users outside of the Paying Organization's organization, with respect to such Project.

2.              Offline Data Archive. Following completion of a Project or termination of Services applicable to a Project, provided that such termination was not attributable to the Paying Organization's material breach and that the Paying Organization's account is not in arrears, the Paying Organization may purchase a copy of the Client Data from the Project specified on the Services Order, on a digital media and in a format that may be viewed using the software applications that created the files that make up the Client Data.

3.              Local Copy Services. A restricted license to use the Local Copy Licensed Software for one nominated Paying Organization user in accordance with the Licence Agreement accompanying the software.  For the duration of the Project, Local Copy will incrementally transmit a copy of the Paying Organization's Client Data to an accessible network location designated by the Paying Organization.   

4.               Digital & Smart Manuals. The delivery of O&M handover information assembled over the course of a Project in a read-only digital media format, accessible by the Aconex Manuals Licensed Software in accordance with the terms of the accompanying Licence Agreement

5.               Smart Manuals Dynamic & Mobile. The delivery of O&M handover information in an editable format, accessible by Aconex Manuals Licensed Software in accordance with the terms of the accompanying Licence Agreement.

6.               Reporting.  Delivery via the Platform of pre-authored standard reports.

7.               Field and Checklists.  A combined solution to manage structured and ad-hoc inspections. Aconex Field is a cloud-based issues and checklist application that enables the capture, distribution and tracking of defects, safety, quality and other issues in real time, online or offline.

8.               Web Service APIs.  A set of RESTful web services APIs which expose core system functionality available in the application. APIs are made available primarily to enable platform integrations between the Aconex Platform and third party products such as internal document management, cost management and other enterprise systems. Web Service APIs include a Developer Guide, Sandbox test environment and access to Developer Support Forum.

9.               Aconex for Outlook.  A Microsoft Outlook plug-in that allows management of Aconex mail from within Outlook and import emails from Outlook into Aconex.

10.            Professional Services.  Provision of Professional Services to establish best practice collaboration procedures for the Paying Organization.

11.            Connected BIM.  Building Information Modelling that allows sharing, reviewing, mark-up and contribution to multi-dimensional models within Aconex. BIM collaboration provides an audit trail of decisions initiated from the model without requiring specialised software and facilitates the capture of O&M related documents which may remain linked to the model objects at handover.

12.            2 Step Verification (2SV).  A security feature for Platform login requiring username and password and a verification code. 

13.            Single Sign On (SSO).  A security feature that allows single login to multiple independent software systems including the Aconex Platform. 

14.            Security Operations Centre (SOC) Subscription.  Aconex will make available detailed logs and reports of key user activity for download on demand by the Paying Organization for importing into their own security analysis tools.

 


 

PROVISIONS APPLICABLE TO NON-PAYING ORGANIZATIONS

1.              DEFINITIONS  

The capitalized terms set forth below shall have the following meanings for the purposes of this Agreement:

1.1            "Acceptable Use Policy" means the Aconex Acceptable Use Policy applicable to the Services, which policy is available for review and download on the Platform login page and the Aconex corporate web site.

1.2            "Aconex" means Aconex Limited (ABN 49 091 376 091) a company incorporated in Australia and unless expressly included in the Agreement, excludes any Aconex Affiliates.

1.3            "Aconex Affiliate" means (a) any entity controlling or controlled by Aconex Limited; and (b) any entity under common control with Aconex Limited, for so long as such common control continues to exist, where control means ownership either directly or indirectly of not less than 50% of the voting shares.

1.4            "AEST" means Australian Eastern Standard Time.

1.5            "Agreement" means the Terms of Service Agreement together with its Schedules.

1.6            "Applicable Laws" mean laws, regulations, statutes, codes, rules, orders, permits, policies, licences, certifications, decrees, standards or interpretations imposed by any governmental authority that apply to this Agreement, including those within the Country where the Services are performed.

1.7            "Business Day" means a day that is not a Saturday, Sunday or holiday observed by Aconex in Melbourne, Australia.

1.8            "Client Data" means data related to a Project that the Non-Paying Organization uploads to or transmits via the Platform and includes first level metadata (such as the time, date, distribution parties relating to a specific document or item of correspondence on any Hosted Platform) but excludes secondary metadata (such as the structure of database tables within the Platform code and folder structures established on the Platform).

1.9            "Confidential Information" means any non-public information disclosed by either Party to the other Party in writing pursuant to this Agreement, which is designated as "confidential" or "proprietary" (or with a similar legend) at the time of its disclosure.  If disclosed verbally or in some other manner that makes marking impractical then the parties will make diligent efforts to confirm the confidential nature of the material so disclosed within a reasonable amount of time following disclosure. Even if not so marked or otherwise identified, Client Data, any non-public components of the Platform and Services, and the terms of this Agreement (including, without limitation, Services Order) are Confidential Information.

1.10         "Commencement Date" means the date the Non-Paying Organization accepts this Agreement on the Platform.

1.11         "Data Archive" means a service Aconex offers relating to the continued preservation and access to Client Data following termination of a Project or termination of Services, as described in Schedule 2.

1.12         "Defects and Liability Service" means delivery of Platform License and Hosting Services for a specified period following completion of a project. The term of the Defects and Liability Service shall be 12 months. The Defects and Liability Service does not include Implementation or Training Services. Activity (defined as the number of transactions recorded on the Platform) of the Platform License and Hosting Services during the Defects and Liability Service is limited to less than 20% of the monthly average Activity before the completion of the project(s). In the event that Activity during the Defects and Liability Service exceeds 20% of the monthly Activity, additional Fees shall apply in proportion to the excess.  Defects and Liability Service consists of the delivery of Platform License and Hosting Services for a specified period following completion of a project.

1.13         "Force Majeure Event" means any forces of nature, disruptions to the internet infrastructure, public bandwidth shortages, industrial action, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemics, lock-outs, strikes and action or inaction by a government agency (including any quasi-government agency) which causes a Party to be prevented or delayed in performing its obligations, excluding events caused or contributed to by the negligence, default, act or omission of a Party or its agents, contractors and employees. 

1.14         "Good Industry Practice" means, in relation to any undertaking and any circumstances, the exercise of the skill, diligence, prudence, foresight and judgment which would be expected from a highly skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances, applying the best standards currently generally applied in Aconex's industry.

1.15         "Intellectual Property Rights" means patents, copyrights, trademarks, trade secrets, and all other proprietary rights recognized in any jurisdiction worldwide, and all applications and registrations therefore.

1.16         "Materials" means all manuals, data, documents, and information that are prepared, written, made accessible, provided or developed by Aconex or its licensors in connection with the Services, including help desk and technical support documentation.

1.17         "Non-Paying Organization" means any organization that is invited and/or authorized to use the Services with respect to a Project by either the Paying Organization any organization that is invited and/or authorized to use the Services and, has accepted the standard Terms of Service Agreement (together with its Schedules on the Platform) and is not required under a Services Order to pay Aconex or an Aconex Reseller for access to and use of the Services.

1.18         "Optional Services" means discretionary, paid Services (including Data Archives) which, if purchased, will be subject to a Services Order.

1.19         "Party" means either Aconex or the Non-Paying Organization as the context dictates, and "Parties" means Aconex and the Non-Paying Organization, as the context dictates.

1.20         "Paying Organization" means the entity specified as the contracting party (other than Aconex) in a Services Order (or other similar document) that is responsible for paying fees to Aconex for all Non-Paying Organizations' use of the Services, and that has the discretion with respect to all Non-Paying Organizations' right to access and use the Platform and/or Services under this Agreement.

1.21         "Personal Information" has the meaning given to that term in the Privacy Legislation.

1.22         "Platform" means the object code version of the computer software application(s) owned by or licensed to Aconex that is made available by Aconex or its agents to the Non-Paying Organizations in connection with this Agreement, together with any associated Materials. The Platform also includes any upgrades, improvements, bug fixes, new versions and/or derivative works of such software or Materials.

1.23         "Platform License" means each license to access and use the Platform granted to the Non-Paying Organization under this Agreement.

1.24         "Privacy Legislation" means any current and applicable Australian privacy legislation.

1.25         "Privacy Policy" means the Aconex Privacy Policy, which is applicable to data received by Aconex from Aconex customers and users of its web sites, and which is available for review and download on the Platform login page and the Aconex corporate web site.

1.26         "Project(s)" means the collaborative project(s) identified by the Paying Organization in the Paying Organization's Services Order, subject to any Project-scope limitations specified in such Services Order

1.27         "Retention Period" has the meaning given to that term in Section 4.2.

1.28         "Services Order" means an Aconex-approved order form with respect to a Project that is executed by Aconex or an Aconex Reseller and a Paying Organization that relates to the provision of the Platform and Services by Aconex or its agents to the Paying Organization and all Non-Paying Organizations under this Agreement.

1.29         "Services" means the Platform and the associated services described in Schedules 1 and 2.

1.30         "Standard Services" has the meaning given to that term in Section 3.1.

2.              TERM

Subject always to Section 4.4, the term of Services applicable to a Project will be tied to the duration of the agreement with a Paying Organization, commencing once the Non-Paying Organization has been provided with access to the Platform and expiring on the earlier of: (a) the date the agreement expires or is terminated; (b) 14 days after Aconex receives Paying Organization's request to remove the Non-Paying Organization's access rights to the Services; or (c) upon the Non-Paying Organization's request.

3.              SERVICES

3.1.          Standard Services. Subject to the Non-Paying Organization's compliance with the terms and conditions of this Agreement, Aconex will, during the applicable service term, provide the Non-Paying Organization with the Services specified Schedule 1 ("Standard Services"), pursuant to the terms and conditions of this Agreement.

3.2.          Optional Services, as described in Schedule 2 (and including any new Optional Services offered by Aconex in the future) may also be requested from Aconex, which if accepted by Aconex, will be subject to the payment of additional Fees and execution of Services Order.

3.3.          Other Services.  Any products or services, other than the Services specified in this Section, that Aconex makes available to its customers for a Fee.

3.4.         PLATFORM USE OBLIGATIONS

3.4.1.      Confidentiality of Username and Password. The Non-Paying Organization is responsible for maintaining the confidentiality of the access credentials (e.g., username and password) used by it and/or its end users to access the Services and agrees that it will not share access credentials among users or disclose those credentials to any third party.

3.4.2.      Use of Data. The Non-Paying Organization acknowledges that by transmitting and receiving data to and from the Platform, the Non-Paying Organization is making information available for the use of the Paying Organization and other Non-Paying Organizations on Project and the retraction of such information may therefore negatively affect the Paying Organization and other Non-Paying Organizations. Aconex may, as a condition to complying with any the Non-Paying Organization request to retract or delete data from the Platform, require the Non-Paying Organization to execute a consent letter (in addition to obtaining a consent from other users that, at that time, have received or are permitted to view the proposed retracted or deleted documentation) prior to deleting or retracting the relevant data.  Where a document is uploaded to the Platform in manifest error and has not, at the time of the Paying Organization's request to retract or delete such document, been viewed by any of the relevant Non-Paying Organizations, Aconex will waive the requirement to obtain any consent letters from such third parties.

3.4.3.      Other Obligations. The Non-Paying Organization understands and acknowledges that Aconex's ability to provide the Services is dependent on the Non-Paying Organization undertaking any agreed obligations (or such reasonable obligations as may be advised to the Non-Paying Organization by Aconex). The Non-Paying Organization acknowledges that failure to perform any such obligations may result in a failure to receive Services.

4.              CLIENT DATA

4.1.          Right to Use. The Non-Paying Organization grants Aconex a nonexclusive license to use Client Data to deliver Services to authorized users of the Platform, solely in connection with the Project(s). The Non-Paying Organization further grants Aconex a nonexclusive, worldwide, perpetual license to use Platform usage data (such as, by way of example and not by way of limitation, numbers of documents uploaded) in an aggregated form that does not identify individual persons or organizations, in order to compile statistics regarding use of the Services and/or to improve the Services.

4.2.          Retention of Data. Upon termination of the Services, Aconex will retain the Non-Paying Organization's data for a minimum of 12 calendar months from the date of termination. Provided that the termination of Services is not attributable to the Non-Paying Organization's material breach, the Non-Paying Organization may, during the Retention Period), purchase a Data Archive, subject to its payment of fees to Aconex at the rates specified in the Price List. Aconex will not be liable for any damages of any kind in connection with its decision to not retain Client Data after the expiration of the Retention Period.

4.3.          Warranty regarding Client Data and Use of the Services. The Non-Paying Organization warrants that (a) it has appropriate and sufficient rights in Client Data to use it in a manner consistent with the applicable terms of this Agreement, and (b) neither Aconex's use, processing and/or storage of Client Data in accordance with this Agreement nor the Non-Paying Organization's use of Client Data as contemplated hereunder will violate applicable laws or this Agreement. Aconex is not obligated to screen Client Data, although Aconex reserves the right to do so and to suspend access to any individual item(s) of Client Data without prior notice should Aconex reasonably consider may breach this Agreement (including the Aconex Privacy Policy and Acceptable Use Policy) or any applicable law. Aconex will notify the Non-Paying Organization as soon as practicable if Aconex suspends access to any individual item(s) of Client Data and will restore access to such Client Data as soon as, in Aconex's reasonable opinion, doing so would not place Aconex at risk of loss or damage. Aconex will not be liable for any damage or loss caused by Aconex's decision to suspend access to any individual item(s) of Client Data. The Non-Paying Organization is entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, usefulness, timeliness and completeness of Client Data. The Non-Paying Organization is responsible for ensuring Client Data is correctly addressed and on-time and does not represent a breach of any obligations to a third party or of law.

4.4.          AGD Exceptions.  Notwithstanding Sections 2, 4.1-4.3 and 9.2 of these Non-Paying Organization's terms and conditions, if the Paying Organization has advised Aconex that it, its client or a participant of a Project is an AGD, the Non-Paying Organisation:

4.4.1        may not be entitled to retain Client Data (including access to data archive services);

 

4.4.2       may not be entitled to receive 14 days' prior notice that a Project (including any Client Data) is being permanently deleted from the Platform;

 

4.4.3       may not be entitled to receive 14 days' prior notice of removal of access on a Project;

 

4.4.4        may not retain ownership rights of Client Data;

5.              FEES AND INSPECTION

5.1.          Fees.  The Non-Paying Organization has no obligation to pay any Fees in connection with the Services for as long as it remains a Non-Paying Organization. Where the Non-Paying Organization wishes to become a Paying Organization (for example in order to purchase an optional service), then the Non-Paying Organization will be required to enter into a separate agreement with Aconex for the relevant services. 

5.2.          Inspection.  On reasonable notice and not more than once annually, Aconex may request an independent third party selected by Aconex and reasonably acceptable to the Non-Paying Organization verify that the Non-Paying Organization is using the Platform solely in connection with the Project and is not otherwise using the Service in a manner that violates this Agreement (each, an "Inspection"). The Non-Paying Organization shall reasonably cooperate with each Inspection and shall provide access to relevant documentation and records, for the purpose of confirming its compliance with the terms of this Agreement. Any information disclosed by the Non-Paying Organization in connection with an Inspection shall be Confidential Information, except to the limited extent necessary for Aconex to enforce its rights under this Agreement.

6.              ACCEPTABLE USE OF SERVICES

The Non-Paying Organization and its end users shall use the Services solely in accordance with this Agreement, all applicable laws and the Acceptable Use Policy. Aconex may modify the Acceptable Use Policy from time to time and such modifications shall be effective upon their publication on the Platform or Aconex's web site. If there is any conflict between the Acceptable Use Policy and this Agreement, then the Acceptable Use Policy shall take precedence.

7.              CONFIDENTIALITY

7.1.          Obligation. Both Parties acknowledge that Confidential Information disclosed by either Party pursuant to this Agreement may constitute valuable trade secrets of the disclosing Party. Each Party agrees to use the other Party's Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, such Confidential Information to any third party, without the disclosing Party's prior written consent. Each Party shall use strict measures to protect the secrecy and avoid disclosure or unauthorized use of the other Party's Confidential Information. Each Party shall exercise the same degree of care to prevent disclosure of the other Party's Confidential Information as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care.

7.2.          Exceptions. Notwithstanding the foregoing, neither Party will be in breach of this provision in circumstances where the Party is legally compelled to disclose the other Party's Confidential Information or where the information is already in the public domain through no fault of the receiving Party, or is in the disclosing Party's possession without a duty of confidentiality at the date of disclosure, or where the disclosing Party discloses the terms of this Agreement to its professional advisors, financiers, prospective financiers or partners or agents on a strict "need to know basis" provided they are under a similar obligation of confidentiality as set out in this Section 7.  If a Party discloses the other Party's Confidential Information to any person, such disclosure does not excuse the disclosing Party from complying with its obligations under this Agreement and the disclosing Party is responsible for the acts and omissions of that person in respect of that Confidential Information as though they were the acts and omissions of the disclosing Party itself.  Aconex may communicate the existence of this Agreement as required under the rules of the Australian Securities Exchange.

7.3.          Notification of unauthorised disclosures. Each Party must promptly give notice in writing to the other Party if it becomes aware of any unauthorised or suspected unauthorised disclosure to any third party of any of the other Party's Confidential Information and provide the other Party with all information and assistance reasonably required by the other Party in respect of such unauthorised disclosure.

7.4.          Disclosure of Agreement.  Subject to Section 7.2, neither Party may disclose this Agreement or information in relation to this Agreement (including commercially sensitive information) in either printed or electronic form either generally or to the public or as a result of a specific request. 

8.              PERSONAL INFORMATION AND CLIENT DATA

8.1.          Use of Personal Information. In the course of receiving the Services under this Agreement, the Non-Paying Organization may disclose to Aconex Personal Information about the Non-Paying Organization's employees, directors, officers, customers or suppliers, and/or other users of the Services. Aconex may also otherwise be provided with access to Personal Information in the course of delivering the Services. Where the Non-Paying Organization provides Personal Information to Aconex, the Non-Paying Organization is responsible for confirming that its disclosure and/or provision of Personal Information to Aconex, and Aconex's storage and/or use of such Personal Information in the manner contemplated under this Agreement is permissible under relevant Privacy Legislation. Where Aconex collects Personal Information directly from the relevant individual(s) (such as under Section 8.2), Aconex is solely responsible for ensuring that all acts (including collection, storage, use and disclosure) are in accordance with its Privacy Policy and otherwise permissible under the relevant Privacy Legislation. Aconex will act only as a data processor and will not re-use or re-disclose Personal Information for unrelated purposes outside the provision of Services. Aconex will use commercially reasonable efforts to protect Personal Information from loss, destruction or unauthorized use or access, utilizing technical, physical and administrative security measures consistent with Good Industry Practice. For the purpose of this Section 8, Personal Information is not data that is in any way created or extracted from Client Data with respect to a Project or Client Data that a Non-Paying Organization uploads or transmits via the Platform (other than Personal Information provided as part of any registration processes or procedures).

8.2.          Additional purposes under Aconex's Privacy Policy. Aconex may collect Personal Information of the Non- Paying Organization's employees, agents and contractors with whom Aconex has contact in business dealings and, subject to Aconex's compliance with Privacy Legislation, the Non-Paying Organization acknowledges that Aconex may use that information in accordance with Aconex's Privacy Policy in addition to the purpose of performing Services under this Agreement.

8.3.          Transfer and Storage of Personal Information. Due to the global nature of its business, Aconex may, for the purposes contemplated under this Agreement, transfer or store Personal Information in and to any country in which Aconex operates, subject to its compliance with applicable laws and this Agreement. The Non-Paying Organization agrees to such transfer in its own right and on behalf of those individuals and entities from whom it collected such Personal Information where such transfer is for the purposes of performing the Services.

8.4.          Location of Client Data.  Aconex will store Client Data in Australia, unless a Services Order between Aconex and a Paying Organization with respect to a Project specifies another location.  Aconex will not disclose or transfer Client Data outside of Australia (where Client Data is hosted on the Australian instance), unless otherwise agreed by the parties in writing.  Nothing in this Section prevents Aconex from changing the location for storing Client Data within Australia. 

8.5.          User Communications. Aconex may communicate with end users of the Services regarding non-Project specific matters relating to system usage, modules and support provided by Aconex.

9.              INTELLECTUAL PROPERTY RIGHTS

9.1.          Aconex-owned IP.  Aconex and its licensors own all right, title and interest in and to the Platform and Services, including all Intellectual Property Rights therein and thereto, and any Materials or software or other inventions that may be developed or discovered by Aconex in connection with the Services. Except for the Platform License, no transfer of any Intellectual Property Rights will occur in connection with this Agreement. Notwithstanding anything to the contrary in this Agreement, Aconex has and retains the exclusive right to own, use and disclose, in the course of its business, all feedback provided by the Non-Paying Organization with respect to the Services and Platform.

9.2.          Non-Paying Organization-owned IP.  The Non-Paying Organization retains all of its right, title and interest in and to its Client Data, and ownership of such Client Data shall not be transferred to Aconex under this Agreement

10.            SUSPENSION OF SERVICES

The Non-Paying Organization's Platform License and/or right to receive the Services may, at Aconex's sole discretion be suspended, if Paying Organization fails to pay Aconex any fees applicable to the Services under a Services Order when due.

11.            LIMITED WARRANTY AND DISCLAIMERS

11.1.        Limited Warranty. Aconex warrants to the Non-Paying Organization that it will use reasonable professional skill and care, consistent with industry standards, in providing all Services. Aconex's sole liability and the Non-Paying Organization's sole and exclusive remedy for any breach of the warranty specified in this Section will be for Aconex to re-perform such Services.

11.2.        Disclaimers. THE NON-PAYING ORGANIZATION ASSUMES ALL RESPONSIBILITY FOR ITS SELECTION OF THE PLATFORM TO ACHIEVE ITS INTENDED RESULTS, FOR THE USE OF AND RESULTS OBTAINED FROM THE PLATFORM, AND FOR TAKING APPROPRIATE MEASURES TO PREVENT LOSS OF DATA. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11.1 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACONEX DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ACONEX DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL BE AVAILABLE WITHOUT INTERRUPTION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.            LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ACONEX WILL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONSEQUENTIAL LOSS, OR OTHER DAMAGES (INCLUDING LOSS OF PROFIT, INTEREST, REVENUE, BUSINESS, GOODWILL, SAVINGS OR ANTICIPATED PROFIT OR ANY LOSS OF OR DAMAGE TO ANY CLIENT DATA, OR LOSS OF OR INTERRUPTION TO THE NON-PAYING ORGANISATION'S BUSINESS), IN EACH CASE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE PROVISION OF THE PLATFORM OR THE SERVICES INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE CAUSED BY A COMPUTER VIRUS OR OTHER MALWARE OR ANY UNAVAILABLITLY OF THE PLATFORM OR THE SERVICES, AND IN EACH CASE REGARDLESS OF WHETHER ACONEX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF WHETHER A CLAIM ARISES IN CONTRACT, TORT OR OTHER, UNDER NO CIRCUMSTANCES WILL ACONEX'S (INCLUDING ITS OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES AND AGENTS): (A) LIABILITY IN ANY MONTH BE GREATER THAN U.S. $1,000; AND (B) ACONEX'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED U.S. $5,000. FOR THE PURPOSES OF THIS SECTION, "LIABILITY" EXPRESSLY INCLUDES ANY AMOUNTS PAYABLE UNDER AN INDEMNITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13.            INDEMNITIES

13.1.        Aconex Indemnity.

13.1.1.    Obligation. Aconex shall defend or at its option settle any third party claim, action or proceeding brought against the Non-Paying Organization alleging that the Platform as delivered to the Non-Paying Organization and used as authorized in this Agreement, infringes any Intellectual Property Right of a third party and Aconex shall pay any final judgments awarded or settlements entered into to resolve such claim, action or proceeding; provided that the Non-Paying Organization provides Aconex with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) all necessary information and assistance (at Aconex's reasonable expense) to defend and/or settle such claim. The Non-Paying Organization may participate in the defense of a claim asserted hereunder after Aconex has assumed the defense or settlement, provided that the Non-Paying Organization shall bear any legal fees and expenses or other costs it incurs in so participating. Aconex shall not be liable for any costs or expenses incurred by the Non-Paying Organization when acting without Aconex's prior written authorization. Aconex may not settle or compromise any claim under this Section that requires the Non-Paying Organization to admit liability or pay any money without the Non-Paying Organization's prior written consent, which consent shall not be unreasonably withheld or delayed.

13.1.2.    Limit on Indemnity. Notwithstanding the foregoing, Aconex will have no liability for infringement claims arising from: (i) combination of the Services with other software or products not provided by Aconex, if the infringement would not have occurred if the Services had not been so combined; (ii) any modification of the Services, in whole or in part, by anyone other than Aconex, if the infringement would not have occurred but for such modification; or (iii) use by the Non-Paying Organization of any specified release of the Platform after Aconex notifies the Non-Paying Organization that continued use may subject the Non-Paying Organization to such claim of infringement, provided Aconex provides the Non-Paying Organization with a replacement release.

13.1.3.    Replacement Services. If any portion of the Services is held, or in Aconex's opinion is likely to be held, to infringe or misappropriate a third party's Intellectual Property Rights, or use of the Services is otherwise enjoined, then Aconex may at its sole option and expense, within a commercially reasonable period of time: (i) procure for the Non-Paying Organization the right to continue using the Services; (ii) replace the Services with a non-infringing solution; or (iii) terminate the Non-Paying Organization's Platform License and/or this Agreement.

13.1.4.    Entire Liability. THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF ACONEX, AND THE SOLE AND EXCLUSIVE REMEDY OF THE NON-PAYING ORGANIZATION, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE NON-PAYING ORGANIZATION'S USE OF THE SERVICES.

13.2.        Non-Paying Organization Indemnity. The Non-Paying Organization shall defend or at its option settle any third party claim, action or proceeding brought against Aconex, any Aconex Affiliate alleging that (a) the Non-Paying Organization has breached any law or regulation in its use of the Services, Client Data, or Personal Information, or (b) the Non-Paying Organization has misused any Client Data or Personal Information or infringed any third party's Intellectual Property Rights in its use of the Client Data or Personal Information, and the Non-Paying Organization shall pay any final judgments awarded or settlements entered into to resolve such claim, action or proceeding; provided that Aconex provides the Non-Paying Organization with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) all necessary information and assistance (at the Non-Paying Organization's reasonable expense) to defend and/or settle such claim. Aconex may participate in the defense of a claim asserted hereunder after the Non-Paying Organization has assumed the defense or settlement, provided that Aconex shall bear any legal fees and expenses or other costs it incurs in so participating. The Non-Paying Organization shall not be liable for any costs or expenses incurred by Aconex when acting without the Non-Paying Organization's prior written authorization. The Non-Paying Organization may not settle or compromise any claim under this Section that requires Aconex to admit liability or pay any money without Aconex's prior written consent, which consent shall not be unreasonably withheld or delayed.

14.            TERMINATION

14.1.        Termination for Breach. Either Party may terminate this Agreement in the event that the other party commits a material breach of this Agreement and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other Party. Aconex may also terminate this Agreement on not less than 14 days' notice to the Non-Paying Organization if Paying Organization's right to receive the Services under this Agreement has been terminated.

14.2.        Termination for Insolvency. Aconex may terminate this Agreement immediately by notice in writing if: (a) the Non-Paying Organization is unable to pay its debts as and when they become due or becomes, threatens or resolves to become or is in jeopardy of becoming insolvent or subject to an order, proceedings or resolution for liquidation or dissolution (unless for the purposes of amalgamation or reconstruction,) or entering into a compromise or arrangement with, or assignment for the benefit of any of its members or creditors; (b) the Non-Paying Organization, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; (c) the Non-Paying Organization, being a natural person, dies; or (d) there is a change of control of the Non-Paying Organization.

14.3.        Termination without cause.  The Non-Paying Organization may terminate the Services at any time by written notice to Aconex.

14.4.        Termination by Paying OrganizationWhere the Paying Organization is an AGD or the Paying Organization's client or participant of a Project is an AGD, notwithstanding any other term in this Agreement, the Paying Organization may, acting upon instruction by the AGD, terminate the Non Paying Organisation's access to a Project at any time and without prior notice.

14.5.        Effect of Termination. On termination of this Agreement, the Non-Paying Organization's Platform License shall automatically terminate and the Non-Paying Organization shall immediately cease using the Platform. The Non-Paying Organization shall also return any Materials and Aconex Confidential Information to Aconex or comply with Aconex's instructions for the destruction of such Materials and Confidential Information. At Aconex's request, the Non-Paying Organization will provide written confirmation certifying that all Materials and Aconex Confidential Information in its possession have been returned or destroyed.

14.6.        Survival. Sections 1, 3.3, 4, 5.2, 7, 8, 9, 11.2, 12, 13, 14.3, 14.2, 14.4, 15 and 16 shall survive termination of this Agreement, howsoever occurring.

15.            GOVERNING LAW AND DISPUTE RESOLUTION

15.1.        Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of Victoria, Australia and the Parties submit to the exclusive jurisdiction of the state and federal courts located in the State of Victoria, Australia and any court that may hear appeals from any of those courts, for any proceedings initiated or pursued in connection with this Agreement, and waive any right they may have to claim that those courts are an inconvenient forum.

15.2.        Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of this Agreement concerning Confidential Information or Intellectual Property Rights, each Party agrees that the non breaching Party may have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages, in any court having jurisdiction. 

15.3.        DISPUTE RESOLUTION

15.3.1.    Negotiation. If any dispute arises between the Parties in respect of this Agreement, or any related document, a Party must: (a) issue a written notice to the other Party notifying them of the existence of a dispute; and (b) use good faith efforts to resolve the dispute through negotiation.

15.3.2.    Escalation. In the event that negotiations pursuant to Section 15.2.1 do not resolve the dispute within 15 Business Days (or such longer period as may be agreed between the Parties), the dispute will be referred to the respective chief executive officers (or their nominees - external counsel excluded) of each Party for good faith negotiations.

15.3.3.    Filing of Actions. Neither Party may file an action to resolve a dispute prior to 20 Business Days (or such other period as may be agreed between the Parties) after an escalation pursuant to Section 15.2.2.

16.            MISCELLANEOUS

16.1.        Force Majeure. With the exception of any payment obligations, neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent such delay is due to a Force Majeure Event. With the exception of payment obligations, to the extent a delay or failure of a Party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party's obligations will be suspended and neither Party will be liable to the other Party for a failure to perform its obligations as a result of a Force Majeure Event. If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds 3 calendar months, either Party may immediately terminate the Agreement without cause upon written notice to the other Party.

16.2.        No Reliance on Representations. The Non-Paying Organization has not relied on any representation, undertaking, statement or understanding which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including marketing materials produced by Aconex. 

16.3.        Entire Agreement. The documents comprising this Agreement contain the entire agreement between the Parties concerning its subject matter.

16.4.        Independent Contractors. The Parties are independent contractors. Aconex is not a party to any transactions the Non-Paying Organizations enter into with one another using the Platform or Services. Under this Agreement, Aconex and its personnel will never be employees, agents or partners of the Non-Paying Organization, and are not engaged in a joint venture with the Non-Paying Organization. Aconex shall have no liability arising out of any transaction or dealings conducted between the Non-Paying Organization and the Paying Organization and/or third parties through use of the Services.  

16.5.        Assignment. The Non-Paying Organization may not assign this Agreement or delegate any of its obligations hereunder without Aconex's prior written consent. Any attempted assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

16.6.        Waiver. Any right of either Party under this Agreement may only be waived in writing, signed by the Party giving the waiver, and no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) shall operate as a waiver of the right or otherwise prevent the exercise of the right.

16.7.        Variation. The provisions of this Agreement will not be varied, except by express written instrument that makes explicit reference to this Agreement and is executed by authorized representatives of each of the Parties. Notwithstanding the foregoing, Aconex reserves the right to modify the Services and/or the terms and conditions of this Agreement at any time, but such modifications shall apply to Services Orders executed after the effective date of the change. Aconex will notify the Non-Paying Organization of such modifications, either via email, the Platform, or in a manner deemed commercially reasonable by Aconex. 

16.8.        Severability. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal by any court or tribunal meeting the criteria set forth in Section 15.1, above for any reason, the remainder of this Agreement will remain otherwise in full force apart from such provisions or part provisions which will be deemed deleted or modified to the minimum extent necessary to remove the invalidity, unenforceability or illegality.

16.9.        Client Reference. Subject to the prior written consent of the Client (not to be unreasonably withheld, delayed or conditioned), Aconex may publicly issue a news release, publish a case study or pursue opportunities for joint media coverage regarding the Client's use of the Platform and may use the Client's name and logo and refer to the fact that the Client is a client of Aconex in its public website. Aconex may use the Client's name and logo and refer to the fact that the Client is a client of Aconex in its annual report, list of references or presentations to actual or potential clients without the Client's consent.  .

16.10.     United States Export Controls. The Services (including the Platform) use software and technology that may be subject to United States export control laws. the Non-Paying Organization shall not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of the Services or any technical information related to the Services to any country for which such export or re-export is restricted by any applicable U.S. regulation or statue ("Restricted Country"), without the prior written consent, if required, of the U.S. government entity that has jurisdiction over such export or re-export. If the Non-Paying Organization uses the Services from a Restricted Country, the Non-Paying Organization is solely responsible for compliance with all applicable laws of such Restricted Country, including without limitation export and import regulations of other Restricted Countries. The Non-Paying Organization's failure to comply with this Section shall be a material breach incapable of remedy.

16.11.     No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity any rights, remedies or other benefits as a third party beneficiary. Without limiting the generality of the foregoing, Non-Paying Organizations may not enforce the rights granted to Paying Organizations under this Agreement and vice versa, under any circumstances.

17.            NOTICES

17.1.        Method of Communication. Any notice or consent delivered by either Party under this Agreement shall only be effective if it is: (a) in writing, sent by or on behalf of and at the express instruction of the Party giving it; (b) addressed in accordance with Section 17.3 to the Party to whom it is to be given; and (c) either: (i) sent via overnight delivery service (e.g., FedEx or UPS), or (ii) sent by fax and the machine from which it is sent produces a report that states that it was sent in full and the recipient does not alert the sender to the fact that fax was not received in a legible form by the close of business the next Business Day; or (iii) in the case of notices from Aconex to the Non-Paying Organization, sent via the Platform.

17.2.        Deemed Delivery. A notice, consent or other communication that complies with this Section is deemed given and received: (a) if it is delivered or sent by fax: (i) by 5:00 PM (local time in the place of receipt) on a Business Day - on that day; or (ii) after 5:00 PM (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day - on the next Business Day; (b) if it is sent by mail: (i) within Australia - four Business Days after posting; or (ii) to or from a place outside of Australia - seven Business Days after posting; and (iii) if it is sent via the Platform - by 5:00 PM the next Business Day (local time in the place of receipt). 

17.3.        Addresses. Any notices from Aconex to the Non-Paying Organization under this Agreement shall be addressed to the Non-Paying Organization representative identified in the Non-Paying Organization's Services account, and the Non-Paying Organizations' contact details will be the contact details recorded in the Non-Paying Organization's Services account. Any notices from the Non-Paying Organization to Aconex under this Agreement shall be addressed as follows:

Aconex Limited

Attn:  General Counsel

96 Flinders Street

Melbourne, Victoria 3000

Australia

 

 


 

SCHEDULE 1: STANDARD SERVICES

 

1.                  Platform License. A non-exclusive, non-transferable, restricted Platform License for the term specified in Section 2, to access and use the functionality available within the modules of the Platform expressly included in the Services Order (subject to any restrictions specified in the Services Order) solely in support of the Project, within the scope specified in the Services Order, and in accordance with and subject to any specifications set forth in the Materials.

2.              Hosting Services. Making the Platform available for use via the public Internet, including unlimited data transmission by the Paying Organization and all Non-Paying Organizations to and from the Platform (subject to limitations set out in the Acceptable Use Policy), and unlimited storage of Client Data related to the Project during the applicable term of Services.

3.              Training Services. The provision of one-to-many training modules delivered over the Internet or at a designated site, which site must be approved by Aconex in advance. In the event training is requested to be provided at a designated site (other than Aconex's offices) and Aconex agrees, the Paying Organization will reimburse Aconex for its reasonable travel and living expenses actually incurred in delivering such training.

4.              Maintenance and Support Services. Email and telephone help desk support provided to designated Paying Organization personnel, to assist the Paying Organization's end users to access and use the Platform on a 24/7 basis, provided in English and any other languages specified in the Services Order. Also included is access to a web-based support centre (English only) and maintenance updates and improvements to the Platform.

 


 

 

SCHEDULE 2: OPTIONAL SERVICES

1.              Online Data Archive. Following completion of a Project or termination of Services applicable to a Project, provided that such termination was not attributable to the Non-Paying Organization's material breach, the Non-Paying Organization may purchase a Platform License to access the Platform and use the functionality available on the Platform with respect to a Project in the manner specified in Section 3.1.1, except that the Non-Paying Organization may not: (1) instruct Aconex to grant other Non-Paying Organizations access to the Platform with respect to such data; (2) add new users; (3) share, transmit or send such data to other organizations; or (4) use the Platform to collaborate with users outside of the Non-Paying Organization's organization, with respect to such Project.   

Where the Paying Organization advises Aconex that it, its client or a participant to a Project is an AGD, where stipulated by the relevant Paying Organization and notwithstanding this Agreement and section 1 of Schedule 2, a Non-Paying Organisation may not be able to request an Online Data Archive.

2.              Offline Data Archive. Following completion of a Project or termination of Services applicable to a Project, provided that such termination was not attributable to the Non-Paying Organization's material breach, the Non-Paying Organization may purchase a copy of the Client Data from the Project specified on the Services Order, on a digital media and in a format that may be viewed using the software applications that created the files that make up the Client Data.     

Where the Paying Organization advises Aconex that it, its client or a participant to a Project is an AGD, where stipulated by the relevant Paying Organization and notwithstanding this section 2 of Schedule 2, a Non-Paying Organisation may not be able to request an Offline Data Archive.

3.              Local Copy Services. A restricted license to use the Local Copy Licensed Software for one nominated Non-Paying Organization user in accordance with the Licence Agreement accompanying the software.  For the duration of the Project, Local Copy will incrementally transmit a copy of the Non-Paying Organization's Client Data to an accessible network location designated by the Non-Paying Organization.     

Where the Paying Organization advises Aconex that it, its client or a participant to a Project is an AGD, where stipulated by the relevant Paying Organization and notwithstanding this section 4 of Schedule 2, a Non-Paying Organisation may not be able to request Local Copy Services.   

4.               Field and Checklists.  A combined solution to manage structured and ad-hoc inspections. Aconex Field is a cloud-based issues and checklist application that enables the capture, distribution and tracking of defects, safety, quality and other issues in real time, online or offline.

5.               Web Service APIs.  A set of RESTful web services APIs which expose core system functionality available in the application. APIs are made available primarily to enable platform integrations between the Aconex Platform and third party products such as internal document management, cost management and other enterprise systems. Web Service APIs include a Developer Guide, Sandbox test environment and access to Developer Support Forum.

6.               Aconex for Outlook.  A Microsoft Outlook plug-in that allows management of Aconex mail from within Outlook and import emails from Outlook into Aconex.

7.               Professional Services.  Provision of Professional Services to establish best practice collaboration procedures for the Non-Paying Organization.

8.              2 Step Verification (2SV).  A security feature for Platform login requiring username and password and a verification code. 

9.              Single Sign On (SSO).  A security feature that allows single login to multiple independent software systems including the Aconex Platform. 

10.            Security Operations Centre (SOC) Subscription.  Aconex will make available detailed logs and reports of key user activity for download on demand by the Paying Organization for importing into their own security analysis tools.