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Marketing Terms

Welcome to BuiltGrid. These terms and conditions (the “Marketing Terms”) govern the use of the BuiltGrid

BuiltGrid and the Partner as collectively referred to as the Parties.

BACKGROUND

These Marketing Terms include and incorporate the Marketing Agreement signed by BuiltGrid’s Partners, which incorporates Intent, Statement of Work, and Commercial Terms. The Agreement contains, among other things, warranty disclaimers, liability limitations, use limitations and the responsibilities of the Parties. Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless in writing and signed by the Parties.

OPERATIVE PROVISIONS

1. Definitions and interpretation

In this Agreement, unless otherwise indicated by the context, the following definitions apply;

  1. Agreement means this Marketing Agreement.
  2. BuiltGrid Search means the services operating at search.builtgrid.com, the only B2B public market network designed for trades, materials and services in the residential construction industry.
  3. BuiltGrid Software means BuiltGrid software operated at app.builtgrid.com that home builders use to manage their construction businesses, where the Partner will be featured in agreed job categories and regions (local government areas).
  4. Business means the Marketing carried out by the Parties pursuant to this Agreement.
  5. Implementation Services means training, sales and business management services, not including Services, that BuiltGrid will use commercially reasonable efforts to provide in accordance with the Statement of Work.
  6. Parties means BuiltGrid and Partner.
  7. Partner Data means any document or data that has been added by the Partner, whether by human input or integrated via Application Programming Interface (API).
  8. Services means the use of, and support directly related to the operation of BuiltGrid Software, for which the Terms of Service is available and maintained at BuiltGrid website, https://builtgrid.com/terms (BuiltGrid Terms).
  9. Systems Integration means the use of Application Programming Interface (API) to streamline the sharing of data and documents between BuiltGrid and Partner computer systems.

2. Interpretation

  1. The singular includes the plural and vice versa.
  2. A reference to one gender includes a reference to all other genders.
  3. Headings to clauses are included for the sake of convenience only and do not affect the interpretation of the clauses to which they relate.
  4. References to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute.
  5. This Agreement binds the Parties legal personal representatives, successors and assigns.

3. Business Development

The Parties agree to make commercially reasonable efforts to support the Intent and complete the Statement of Work.

4. Statement of Work

BuiltGrid will use commercially reasonable efforts to provide the Partner with the Services described in this Statement of Work. The Partner agrees to make commercially reasonable efforts to support BuiltGrid in performing the tasks in the Statement of Work. Any additional Implementation Services required of the Partner from BuiltGrid will use the process stated in Commercial Terms.

5. Implementation Services

  1. In the interest of efficiency, cost management and preserving our environment, all Implementation Services will be conducted remotely, including the use of video conferencing. From time to time, the Parties may, due to timing and resource location, choose to have a face-to-face meeting.
  2. Implementation Services that are not included in the Statement of Work are billable. BuiltGrid will share a quote and the Partner will review and approve Services.
  3. Out-of-Pocket Expenses: The Partner will need to approve out-of-pocket expenses that aren’t mentioned in Implementation Services quotes from BuiltGrid. These may include flights, accommodation, meals, meeting expenses, etc.
  4. Implementation Services are performed for BuiltGrid by GrowthGrid Pty Ltd. Its Terms of Service are available to review and maintained at https://growthgrid.co/terms

6. Payment of Fees

  1. The Partner will pay BuiltGrid the applicable fees described in Commercial Terms, and in accordance with this Agreement (Fees).
  2. The Partner will settle payment of Fees according to the Commercial Terms.
  3. Thirty (30) days prior to the expiry of the Service Term, BuiltGrid reserves the right to change the Commercial Terms and institute new charges and Fees. Notice will be sent by email to the Partner.
  4. Goods and services tax is payable in respect of this Agreement. Any other taxes, duties or levies will be paid by the Partner at the then-prevailing rate.
  5. Unpaid amounts are subject to an interest charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.

7. Term and Termination

  1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Commercial Terms, and shall be automatically renewed for additional periods of the same duration as the Service Term (collectively, Term), unless either party requests termination at least thirty (30) days prior to the end of the then-current Service Term.
  2. In addition to any other remedies it may have, BuiltGrid may terminate this Agreement without notice if the Partner materially breaches any of the terms or conditions of this Agreement, or in the case of non-payment of Fees. The Partner will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, BuiltGrid will make Partner Data available to the Partner in a form BuiltGrid deems appropriate for a period of sixty (60) days, but thereafter BuiltGrid may, but is not obligated to, delete stored Partner Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment of Fees, confidentiality obligations, warranty disclaimers, and limitations of liability.

8. Restrictions and Responsibilities

  1. Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by BuiltGrid, the Partner must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Services, Implementation Services or any Software, documentation or data related to the Services.
  2. The Partner represents, covenants, and warrants that the Partner will use the Services only in compliance with BuiltGrid’s standard published terms, conditions, policies then in effect (Policy) and all applicable laws and regulations.
  3. The Partner hereby agrees to indemnify and hold harmless BuiltGrid against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Partner’s use of Services. Although BuiltGrid has no obligation to monitor the Partner’s use of the Services, BuiltGrid may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
  4. The Partner shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment). The Partner shall also be responsible for maintaining the security of the Equipment, the Partner account and all user passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Partner account or the Equipment with or without the Partner’s knowledge or consent.

9. Confidentiality and Proprietary Rights

  1. Each party (Receiving Party) understands that the other party (Disclosing Party) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (referred to as Proprietary Information of the Disclosing Party).
  2. Proprietary Information of BuiltGrid includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of the Partner includes non-public data provided by the Partner in Australia, to BuiltGrid to enable the provision of the Services (Partner Data).
  3. The Receiving Party agrees:
    1. to take reasonable precautions to protect such Proprietary Information, and
    2. not to use (except in the performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
  4. The Partner shall own all rights, titles and interests in and to the Partner Data, as well as any data that is based on or derived from the Partner Data and provided to the Partner as part of the Services. BuiltGrid shall own and retain all rights, titles and interests in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, and (c) all intellectual property rights related to any of the foregoing.
  5. Notwithstanding anything to the contrary, BuiltGrid shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services, Implementation Services and related systems and technologies (including, without limitation, information concerning Partner Data and data derived therefrom), and BuiltGrid can be used (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, Implementation Services and other BuiltGrid offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
  6. The Parties agree to promptly destroy any Proprietary Information of the other Party that is within their possession when this Agreement is terminated.
  7. No rights or licenses are granted except as expressly set out in this Agreement.

10. Warranty and Disclaimer

BuiltGrid shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimises errors and interruptions in the Services and according to BuiltGrid Terms. Services shall be performed by BuiltGrid in a professional and proper manner.

11. Indemnity

The Partner will at all times indemnify and hold harmless BuiltGrid and its officers, employees and agents in respect of any third-party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:

  1. a breach by the Partner of its obligations under this Agreement;
  2. any wilful, unlawful or negligent act or omission of the Partner.

12. Limitation on Liability

  1. Except in the case of death or personal injury caused by BuiltGrid’s negligence, the liability of BuiltGrid under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Partner to BuiltGrid for the Services under this Agreement in the twelve (12) months prior to the act that gave rise to the liability, in each case, whether or not BuiltGrid has been advised of the possibility of such damages.
  2. Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

13. Dispute Resolution and Mediation

  1. If a dispute arises out of or relates to the terms of this Agreement, neither Party may commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
  2. A Party to this Agreement claiming a dispute (Dispute) has arisen under the terms of this Agreement, must give written notice to the other Party detailing the nature of the Dispute, the desired outcome, and the action required to settle the Dispute (Dispute Notice).
  3. On receipt of the Dispute Notice by the other Party, the Parties to this Agreement must within seven days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
  4. If for any reason whatsoever, twenty-one (21) days after the date of the Dispute Notice, the Dispute has not been resolved the Parties must either agree upon the selection of a mediator or request that an appropriate mediator be appointed by the Law Society of Victoria or an independent third party that is agreeable to the Parties.
  5. It is agreed that mediation will be held in Victoria, Australia.
  6. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
  7. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” communications.
  8. If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
  9. In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

14. General

  1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
  2. This Agreement is not assignable, transferable or sublicensable by the Partner except with BuiltGrid’s prior written consent. BuiltGrid may transfer and assign any of its rights and obligations under this Agreement without consent.
  3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by the Parties, except as otherwise provided in this Agreement.
  4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Partner does not have any authority of any kind to bind BuiltGrid in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.
  5. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or email; the day after it is sent if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  6. This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.

15. Entire Agreement

This Agreement represents the entire agreement between the Parties and supersedes all other agreements, arrangements and representations made between the Parties relating to the same subject matter.

Last updated: 2nd January, 2025