Terms &
Conditions

1. Definitions

The following definitions apply to the terms and conditions set out below that govern the contract of services between you and us.

"we", "us", "our" and "BuilderShield" means Builder Shield Pty Ltd ACN 672 146 860 trading as BuilderShield, its related bodies corporate (as this term is defined in the Corporations Act 2001 (Cth)) and its employees, agents and independent contractors;

"you", "your" and "the Customer" means the party contracting with us as the sender or consignor;

"the parties" means the Customer and BuilderShield collectively.

"OHS" means Occupational Health and Safety.

"services" means all services that are performed by us in the course of scheduling and facilitating and otherwise providing a convenient web based platform for OHS record keeping to assist customers with their safety obligations.

"platform" means the online portal we provide you with access to in order to deliver our services.

"OHS Law" or "OHS Act" means the legislation constituted The Occupational Health and Safety Act 2004 (Vic) and The Occupational Health and Safety Regulations 2017 (Vic) or such other legislation as may be enacted by a State or Territory Government for the purpose of giving effect to relevant matters contemplated by the services.

"Relevant authority" means WorkSafe Victoria or such other body delegated the authority by a State or Territory Government in relation to any OHS matter that may arise in the building industry or under any situation that may relate to these terms and conditions.

"loss" means damage, loss, cost, expense or liability (whether actual or contingent);

"Non-Excludable Condition" means any conditions, warranties and guarantees provided or implied by any State, Territory or Commonwealth law, including but not limited to the statutory consumer guarantees described in the Competition and Consumer Act 2010 (Cth) and the provisions of any State or Territory legislation which cannot be lawfully excluded.

"Privacy Policy" means the endorsed privacy policy accessible through the BuilderShield website at buildershield.com.au/privacy-policy subject to change from time to time.

2. Agreement

This Agreement is made between BuilderShield and the Customer for the provision of an online record keeping tool for OHS data relevant to the building and construction industry.

a) The Customer agrees to pay financial consideration on a subscription basis in exchange for BuilderShield providing access to their online platform for OHS data management.

b) You agree and acknowledge that our services act as a complementary tool to aid customers and building practitioners to maintain OHS records in a convenient and cost effective way which in no way shall be construed to offer, monitor, assure or otherwise guarantee adherence to OHS Law. Any such adherence shall remain solely the responsibility of the Customer with respect to its statutory and other obligations to the relevant authority.

c) In providing our services to you we make no representations on your behalf to any relevant authority as to the accuracy or validity of the information recorded through our platform.

d) By accessing the platform and inputting data you accept these terms and conditions and our Privacy Policy on behalf of yourself and/or anyone else who has an interest in the data.

e) The services use third‑party suppliers (including for application hosting, database, auth and file storage as described generally in our Privacy Policy, transactional email or SMS, billing or payments processing, bookkeeping and website analytics such as tags or measurement tools). Those suppliers may operate or hold data outside Australia. Your use of our services acknowledges that disclosures required to run the platform occur as set out in the Privacy Policy.

f) The parties acknowledge and agree that the BuilderShield is an independent contractor of the Customer and nothing in this Agreement constitutes any relationship of employer and employee, principal and agent, joint venture, or partnership between the parties.

g) BuilderShield may, at any time, alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by BuilderShield to the Customer.

If you do not understand any of the terms of this Agreement, please contact us before using the Services.

3. Term

Unless otherwise agreed in writing this Agreement as represented in the information specified in the Contract Particulars:

a) Commences on the date of execution of this agreement (commencement date);

b) Shall continue for the Initial Term specified in Items 5 and 6 of the Contract details, or in the absence of any details for one (1) year unless terminated earlier in accordance with this Agreement or otherwise agreed in writing; and

c) Shall be automatically renewed at the end of the initial term for a further term as specified at item 6 of the Contract details, or in the absence of any details for a further 12 months each subsequent year.

d) If either party seeks to amend the terms of this agreement prior to a renewal of a further term they must give the other party notice at least 30 days prior to the anniversary of the commencement date.

4. Pricing

a) The Customer must place all orders for the services with BuilderShield via the BuilderShield website, in writing or by any other method agreed between BuilderShield and the Customer from time to time.

b) BuilderShield will offer the services to the Customer at the prices listed at the time the Customer subscribes or makes an order, referred to or described in Item 7 of the Contract Details.

c) The prices are fixed and are not subject to adjustment unless stated otherwise in Item 8 of the Contract Details or otherwise agreed in writing between the parties.

d) Unless otherwise stated, the prices are in the currency specified in Item 7 of the Contract Details and are exclusive of GST.

e) BuilderShield reserves the right to amend its pricing from time to time by providing the Customer within 30 days notice of the renewal of a further term.

f) The Customer may object to any change in price by providing its objection in writing on or before the date a further term may commence. If the Customer fails to provide notification of its objection or otherwise terminate this Agreement in accordance with these terms and conditions, the Customer shall be deemed to have accepted to change in price for the duration of the further term.

5. Payment terms

a) The Customer is required to make payment within 14 days of the date of any invoice.

b) If the client fails to make payment in accordance with clauses 5 a) BuilderShield shall be entitled to:

(i) Suspend provision of all services to the customer including but not limited to user access to the platform, QR code functionality, document generation and delivery of any signage or other orders;

(ii) Charge default interest at the rate of a rate of two and a half percent (2.5%) per calendar month before any judgment (including late payment charges and amounts other than the contract sum) compounding monthly, calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment;

(iii) Claim from the Customer all costs relating to any action taken by BuilderShield to recover moneys or goods due from the Client including, but not limited to, any legal costs and disbursements on a solicitor-client/indemnity basis;

(iv) Exercise a general and a particular lien on all the Customer's historical OHS records, documents and other data in the possession of BuilderShield.

6. Our rights and obligations

a) BuilderShield reserves the right to refuse provision of its services to any party at its sole and absolute discretion.

b) BuilderShield is committed to ensuring as far as is reasonably practicable that the records it creates for the Customer are up to date and sufficient to comply with the obligations imposed by OHS law on building practitioners however BuilderShield in no way warrants or guarantees adherence to OHS law in anyway with respect to the services it provides to the Customer.

c) BuilderShield will not comply with any instruction by the Customer that BuilderShield reasonably believes might have the effect of undermining or jeopardising its relationship with any relevant authority or breaching the OHS Law or preventing BuilderShield from taking all steps that it considers to be necessary to prevent any breach any of its obligations under the OHS law or to any relevant authority.

d) BuilderShield may immediately cease the provision of any further services in the event of a breach of these terms and conditions by the Customer. In such circumstances BuilderShield shall not be liable for any loss incurred by the Customer.

e) The Customer agrees that BuilderShield may treat or otherwise deal with the records or data as directed or required by the relevant authority and/or any other Government Authorities in relation to any OHS risks or audits.

7. Your warranties and obligations

The Customer, warrants, represents and guarantees to BuilderShield that:

a) It has authority to contract for BuilderShield's services under this Agreement;

b) It will maintain appropriate insurances and will not do anything which might void any insurance policy held by the Customer or BuilderShield;

c) It acknowledges that its OHS and other legislative obligations are its own and cannot be subrogated to BuilderShield under any circumstances;

d) It does not rely on any material, resource or information provided by BuilderShield as being capable of completely discharging any reporting or regulatory obligation the Customer may have to any authority or other entity;

e) It owns and has the rights to any imagery, trademark or other intellectual property that it may from time to time upload, provide or otherwise transfer to BuilderShield to be reproduced in the provision of BuilderShield's services including but not limited to the republication of such intellectual property on the internet or in any software and hard copy printing on site boards or other medium to be placed on public display;

f) The information it provides to BuilderShield at the time of contracting is accurate and reflective of the requirements of the Customer's needs and usage of the Services and that it shall notify BuilderShield of any change in such requirements within 14 days of occurring.

d) The price offered to the Customer is reflective of the information referred to in paragraph 7(f) and is subject to review at the time of any increase in such requirements with such review at to take effect from the date of the change.

7. Indemnity

The Customer agrees to indemnify and hold BuilderShield harmless from any losses, liabilities, costs, fees, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) arising out of:

a) Any of the Customer's breach of this Agreement or to any negligent, wilful or unlawful acts or omissions of the Customer, its employees, officers, agents, subcontractors, dealers or representatives;

b) This clause survives termination of this Agreement.

Exclusion of liability

a) BuilderShield gives no warranty in relation to the services save for warranties which cannot be contracted out of in accordance with the Australian Consumer Law.

b) BuilderShield shall not be liable for any indirect, special, exemplary, incidental or consequential loss or damage or for any lost profits, lost savings, loss of revenues, loss of agreements or contracts, loss of business opportunity, loss of or damage to goodwill or loss of reputation suffered by the Customer arising from or in any way connected with this Agreement or the provision of the services.

Termination

Either party may terminate this Agreement:

a) Immediately by BuilderShield if the Customer makes any default in making the payment to BuilderShield;

b) Immediately by either party on notice of any breach by the other party of any term of this agreement;

c) Immediately, upon the dissolution, insolvency or any adjudication in bankruptcy of, or any assignment for the benefit of creditors by, either party or if a party ceases to conduct business in the ordinary or normal course.

d) In the event this Agreement is terminated:

(i) All outstanding balances owed by the Customer to BuilderShield shall become immediately due and payable to BuilderShield;

(ii) BuilderShield may cease providing access to the Customer's platform and exercise a lien over any records, information or data it stores on behalf of the Customer under the terms of this agreement;

(iii) BuilderShield may call on any security it has pursuant to this agreement to discharge any debt to BuilderShield calculated in accordance with these terms.

11. Director's/personal guarantee

a) BuilderShield reserves the right to require a Director of a Customer or other individual to provide a personal guarantee in respect any amount owing or as security for future dealings in the course of providing its services.

b) Such a guarantee may include a charging clause over real property that would entitle BuilderShield to lodge a caveat to protect its interests under this Agreement.

c) If the Customer refused to provide such security upon request BuilderShield shall be entitled to immediately cease provision of its services and exercise its rights under this agreement to recover any amount owing including damages, costs and interests.

12. General

a) If any clause or part thereof of these Terms and Conditions is invalid or not enforceable in accordance with its terms, all other terms or parts thereof which are self-sustained and capable of separate enforcement without regard to the invalid or unenforceable clause or part thereof is and will continue to be valid and enforceable in accordance with its term.

b) The Customer agrees that these Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria and the Customer and BuilderShield submits to the non-exclusive jurisdiction of the Courts of the State of Victoria.

c) BuilderShield may assign all or any part of its rights and obligations without the Client's consent.

d) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;

e) References to a party are intended to bind their heirs, executors, administrators, successors, and assigns; and

f) Obligations under this agreement affecting more than one party bind them jointly and each of them severally.