19 Feb 2024

BeeCastle - Terms of Use

Welcome to the BeeCastle website, software, mobile application and BeeCastle community (BeeCastle) owned and operated by BeeCastle Pty Ltd (herein referred to as ‘BeeCastle’). Copyright © BeeCastle Pty Ltd, Sydney, New South Wales, Australia. All rights reserved.

Our complete terms and conditions are set out below, but some important points for you to know before you become a customer are set out below:

We are a subscription service, and by placing an order with us, you are agreeing to order products from us on an ongoing basis. A minimum term applies to your subscription, as set out in your Account. Your subscription will renew unless you terminate this Agreement in accordance with clause 16 below. There is no obligation on BeeCastle to remind you of an upcoming renewal;
Ordinarily, you must give us 90 days notice to cancel any subscription, unless specified in these terms;
We may need to change the Price from time to time. If we change the price, we will provide you with 30 days notice of the change. After 30 days, we will apply the new Price to your existing payment details for all future billing cycles. If you do not agree with the new Price, you may cancel your subscription in accordance with these terms;
We may amend these Terms at any time by publishing updated terms on our Website; and
We will have no liability for loss of, or damage to, the products, any injury or loss to any person, failure or delay in providing the products or a breach of the Terms or any law, where such loss was caused or contributed to by any event or circumstance beyond our reasonable control or act or omission of you or your related parties.

Nothing in these terms limit your rights under any applicable consumer laws.

1. Introduction

BeeCastle is a cloud-based materials and logistics tracking software specifically designed for the construction industry. It allows every company on a single project to track and share real-time information at every stage including, however not limited to, manufacture, shipping, installation, QA and defects.

2. Definitions

The definitions and interpretation section in this Agreement are set out in clause 20 (Definitions and interpretation).

3. Parties and agreement

3.1 Parties

This Agreement is between you, our customer (referred to as you or your) and BeeCastle Pty Ltd ACN 168 464 060, its successors and assignees (referred to as us, we or our) and each a Party and collectively the Parties. This Agreement is available at www.beecastle.com (Website).

3.2 Agreement

This Agreement forms the agreement under which we provide you with the Services. Please read this Agreement carefully. If you have any questions, please contact us using the contact details before you access the Website.

4. Services

4.1 Services

You have requested the Services. We will supply the Services, whether ourselves or through our Personnel, as set out in this Agreement.

5. Acceptance

5.1 Acceptance

You accept this Agreement by clicking a box indicating your acceptance on the Website.

5.2 Authority

If you are agreeing to this Agreement on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means that Entity and you are binding that Entity to the terms of this Agreement. If you are accepting this Agreement on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so. If the Entity is converting from a free user to a paid user, this Agreement will replace the Free User and Invited User Terms for the Entity. For any individual accepting this Agreement on behalf of the Entity and for all Authorised Users of the Entity’s Account, the invited user portion of the Free User and Invited User Terms will apply.

5.3 This Agreement Term

This Agreement commences on the date you accept this Agreement in accordance with clause 5.1 (Acceptance) and continue on a month-to-month, quarter-to-quarter or year-to-year basis (depending on your chosen billing cycle) until the date on which this Agreement is terminated in accordance with clause 16 (Termination)(Agreement Term).

6. Accounts

6.1 Create Account

We may create an account for you (Account), in order for you and your Authorised Users to access and use the Services. You must ensure that any information you provide to us, or we request from you as part of the creation process is complete and accurate.

6.2 Account Owner

You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account as set out in this Agreement. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account in a form acceptable to us.

6.3 Usernames, passwords and administration of Authorised Users

We or the Website will provide you with certain Account details (such as usernames and passwords) when an Account is created for you. It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account comply with this Agreement. We are not responsible for the management or administration of your Account or your Authorised Users.

7. Licence and restrictions on use

7.1 Licence

In consideration for payment of the Fees, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the Services for the Agreement Term (Licence).

7.2 Licence Restrictions

You must not (and must ensure your Authorised Users do not) access or use the Services except as permitted by the Licence and you must not and must not permit any other person to:

(a) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property rights;

(b) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(d) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;

(e) reveal your Account’s password to others or allow others to use your Account (other than Authorised Users);

(f) use the Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(g) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;

(h) send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(i) use the Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of our members or suppliers.

7.3 You must obtain necessary approvals

For us to provide the Services to you, you must promptly obtain and provide to us any required licences, approvals or consents necessary for our performance of the Services.

8. Authorised Users

8.1 Authorised Users

If set out on the Website or as otherwise agreed between the Parties, you agree that the Licence permits you to access and use the Services in accordance with the number of Authorised Users, as set out on the Website or as otherwise agreed between the Parties. All of your Authorised Users will be required to agree to our Free User and Invited User Terms.

8.2 Increasing Authorised Users

You may, at any time, increase the number of Authorised Users by requesting the increase by email or via your Account and we will apply new Fees (and support fees if relevant) which will be applicable as of the effective date of the increase of the number of Authorised Users.

9. Third Parties

9.1 Third-Party Inputs

You acknowledge and agree that:

(a) the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and

(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third Party Inputs.

9.2 Interoperability with Third-Party Inputs

(a) You acknowledge that the Services include certain optional functionality that may interface or interoperate with third-party software or services.

(b) To the extent that you choose to use such functionality and they are not a part of the Services, you are responsible for:

(i) the purchase of;

(ii) the requirements; and

(iii) the licensing obligations,

related to the applicable third party software and services.

(c) It is your responsibility to ensure these requirements are met in order for you to benefit from the specific functionality made available to you.

10. Setup Services, Data Load, Variation and Support Services

10.1 Setup Services and Data Load

If applicable, we will provide the Setup Service and the Data Load as set out on the Website or as otherwise agreed between the Parties.

10.2 Variation

If you require any changes to the scope, functionality or nature of the Services you may request such changes and at our discretion, we may provide you with written notice in the form of a statement of work, including any variation in fees for us to undertake such changes. We have no obligation to perform any request which is outside the scope of the Services, unless the Parties have signed a statement of work setting out such varied or additional services and any fees. On signing a statement of work, any services set out therein will form part of the Services and any fees set out therein will form part of the Fees, and the statement of work will be incorporated into and governed by this Agreement.

10.3 Support

We will provide you with technical support services as set out on the Website or as otherwise agreed between the Parties.

11. Privacy

11.1 Data Processing Addendum

We will at all times handle Customer Data that contains or is Personal Data in accordance with the Data Processing Addendum attached to and incorporated into this Agreement, and which sets out how we will process Personal Data in accordance with the GDPR and Privacy Act.

11.2 Your obligations

(a) Except as set out in clause 11.1 (Data Processing Addendum), you are responsible for the collection, use, storage and otherwise dealing with Personal Data related to your business and all matters relating to the Customer Data.

(b) You must and must ensure that all of your Personnel and Authorised Users comply, with the requirements of all applicable Privacy Laws in respect of all Personal Data collected, used, stored or otherwise dealt with under or in connection with this Agreement.

(i) notify Authorised Users, Personnel, or other natural persons from whom Personal Data is collected about any matter prescribed by applicable Privacy Laws in relation to the collection, use and storage of their Personal Data;

(ii) ensure that any Personal Data transferred to us is complete, accurate and up to date;

(iii) notify us immediately upon becoming aware of any breach of applicable Privacy Laws that may be related to the use of the Personal Data under this Agreement; and

(iv) ensure any processing of Personal Data by you or instructions provided to us will not cause us to breach applicable Privacy Laws.

(d) Without limiting this clause 11 (Your obligations), you may only disclose Personal Data in your control to us if:

(i) you are authorised by applicable Privacy Laws to collect the Personal Data and to use or disclose it in the manner required by this Agreement; and

(ii) you have informed the individual to whom the Personal Data relates, that it might be necessary for you to disclose their Personal Data to third parties and, if necessary, you have obtained their consent to do so and/or provided them with any required notices.

12. Fees and payment

12.1 Fees

We will invoice you for any Fees and any other amounts payable to us under this Agreement in advance of each billing cycle based on the billing cycle chosen by you and you must pay such invoiced amount within 7 days of the invoice date, unless otherwise agreed between the Parties in writing (the, Payment Terms).

12.2 Failure to pay invoices

If any payment has not been made in accordance with the Payment Terms, we may (in our absolute discretion):

(a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you any additional costs of doing so;

(b) charge an administrative fee of AUD$400 (plus GST) per unpaid invoice and interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 9% per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date; and

12.3 Recommencement of services

If you rectify such non-payment after the Services have been suspended, then we will recommence the provision of the Services as soon as reasonably practicable.

12.4 Payment

You must pay us the Fees and any other amount payable to us under this Agreement, without set off or delay, via credit card or any other payment method set out on the Website or as otherwise agreed between the Parties. If you do not pay by credit card or direct debit, we may apply an administrative fee to that payment.

12.5 Fees

The Fees are subject to change upon 30 days’ notice from us to you and will apply to the next billing cycle. Such notice may be provided at any time by posting the changes on our Website, via email or via a notification to your Account.

13. GST

The Fees and any other amount payable exclude GST (unless expressly stated otherwise). You must pay GST at the same time as you pay the Fees or any other amount payable, and it must be paid in addition to the Fees or other amount payable.

14. Intellectual Property Rights

14.1 Our Intellectual Property

All Intellectual Property in the Software, Services and all Intellectual Property developed, adapted, modified or created by us or our Personnel (including in connection with this Agreement, the Software and the Services and any statistical algorithms output from the Services) is and will remain owned exclusively by us or our third-party service providers.

14.2 Obligations

You must not, without our prior written consent:

(a) copy or use, in whole or in part, any of our Intellectual Property;

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

(d) breach any Intellectual Property Rights connected with the Software or the Services, including altering or modifying any of our Intellectual Property;

(e) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;

(f) resell, assign, transfer, distribute or make available the Services to third parties;

(g) “frame”, “mirror” or serve any of the Services on any webserver or other computer servers over the Internet or any other network;

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

14.3 Non identifying analytics

Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised

format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a) does not contain identifying information; and

(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

14.4 Rights in Analytics

We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.

14.5 Your Intellectual Property

As between you and us:

(a) all Customer Data is and remains your property; and

(b) you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.

14.6 Services Licence

You grant us a limited licence to copy, use, transmit, store and back-up or otherwise access the Customer Data during the Agreement Term solely to:

(a) supply the Services to you (including to enable you and your Personnel to access and use the Services);

(b) diagnose problems with the Services;

(d) develop other services, provided we de-identify the Customer Data, as reasonably required to perform our obligations under this Agreement.

14.7 Publicity Licence

Unless you provide written notice explicitly advising us otherwise, you also grant us a non-exclusive, worldwide, royalty free, non-sublicensable and non-transferable right and license to use your name and logo (including any trade mark) to advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material for the Agreement Term and 12 months following the Agreement Term.

14.8 Customer Data and compliance

(a) You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all Laws.

(b)You acknowledge that Customer Data will be available to all users with access to your project on the Software unless you choose to limit access. You can limit access to certain Customer Data to selected users at the point of uploading the Customer Data to the Software, or at any stage after uploading the Customer Data.

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

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

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

14.9 Customer Data

We assume no responsibility or Liability for the Customer Data. Subject to clause 11.1 (Data Processing Addendum), you are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.

15. Liability

15.1 Liability

Despite anything to the contrary, to the maximum extent permitted by law:

(a) the maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed in the aggregate for all claims the total amount of Fees you paid to us in the 12 month period directly preceding the date on which such Liability arose; and

(b) we will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

15.2 Exclusions to Liability

Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:

(a) loss of, or damage to, any property or any injury to or loss to any person;

(b) failure or delay in providing the Services;

(d) the Computing Environment,

where caused by where caused or contributed to by any:

(e) Force Majeure Event;

(f) a fault, defect, error or omission in the Computing Environment or Customer Data; or

(g) act or omission by you, your related parties, Authorised Users, Personnel or any third party (including customers, end users, suppliers, providers or subcontractors),

and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.

15.3 Indemnity

To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach by you or your Authorised User of clause 11 (Privacy), clause 14 (Intellectual Property Rights), clause 18 (Confidential Information).

15.4 Consumer protection laws

Certain consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement attempts to exclude, restrict or modify your Statutory Rights, including, if applicable, as a consumer under the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth). Any and all other warranties or conditions which are not guaranteed by Statutory Rights are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this Agreement.

15.5 Acknowledgement

You acknowledge and agree that:

(a) you are responsible for all users using the Services, including your Personnel and any Authorised Users; and

(b) your use the Services and any associated programs and files at your own risk;

(c) the technical processing and transmission of the Services, including your Customer Data, may be transferred unencrypted and involves:

(d) transmissions over various networks; and

(e) changes to conform and adapt to technical requirements of connecting networks or devices;

(f) we may use third-party service providers to host the Services. If the providers of third-party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;

(g) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;

(h) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;

(i) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you or your Authorised Users; and

(j) we may pursue any available equitable or other remedy against you if you breach any provision of this Agreement.

16. Termination

16.1 Mutual Termination

The Parties may terminate this Agreement by a mutually signed agreement.

16.2 Termination without cause

Either Party may terminate this Agreement at any time by giving not less than 90 days’ notice in writing and this Agreement will terminate on the last day of the billing cycle which is at least 90 days after the date of such notice. For the avoidance of doubt, this means that if, when notice is provided, there are less than 90 days before the end of the current billing cycle then this Agreement will extend for one further billing cycle and terminate on the last day of that further billing cycle.

16.3 Termination for cause

To the extent permitted by law, either Party may terminate this Agreement, with written notice, if the other Party:

(a) has breached a material term of this Agreement and has failed to remedy such breach within 20 Business Days of receiving notice to do so, subject to any other express right of termination;

(b) ceases operation without a successor; or

16.4 Termination for failure to pay

Without limiting clause 16.3 (Termination for cause), we may terminate this Agreement by providing you with five Business Days’ notice, in our sole discretion, if you fail to pay an invoice within 20 days of the invoice payment date.

16.5 Termination for amendment

You may terminate this Agreement with written notice if we issue you with a notice under clause 19.1 (Amendment) that this Agreement is being amended and within 30 days of the date of the notice you choose to terminate this Agreement in accordance with clause 19.1 (Amendment).

16.6 Effect of termination

On termination of this Agreement:

(a) you must cease using the Services and we will cease to provide the Services;

(b) you agree that any payments made are not refundable;

(c) you must pay for all Services provided under this Agreement including Services which have been performed and have not yet been invoiced to you, and all other amounts due and payable under this Agreement, including under an indemnity, within 5 Business Days of termination;

(d) you must promptly return (where possible) or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property;

(e) we must promptly return (where possible) or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property unless we are required by Law or regulatory requirements to retain such information;

(f) for the avoidance of doubt, any provisions of this Agreement that by their nature survive the termination of this Agreement will remain in force after this Agreement Term; and

(g) we will delete or return Personal Data in accordance with the terms of the Data Processing Addendum.

16.7 Removal of Customer Data

You must, within 3 months of the date of termination or expiry of this Agreement, copy all Customer Data and we will allow you access to the Services during this time solely for that purpose. After this time, subject only to the terms in the Data Processing Addendum, we will be entitled to retain or permanently delete all Customer Data.

16.8 Accrued rights

The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.

17. General Warranties

17.1 Our warranties

We warrant and agree that:

(a) we are properly constituted and have the right and authority to enter into this Agreement;

(b) we will provide the Services in accordance with all applicable Laws; and

(i) by suitably competent and trained Personnel; and

(ii) in an efficient and professional manner.

17.2 Your warranties

You warrant and agree that:

(a) you have the legal capacity to enter into a legally binding agreement and there are no legal restrictions preventing you from agreeing to this Agreement;

(b) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services, and as otherwise requested by us, from time to time, and in a timely manner;

(c) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;

(d) you will inform us if you have reasonable concerns relating to our provision of the Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;

(e) you are responsible for obtaining any consents, licences, authorities and permissions from other Parties necessary for the Services to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions;

(f) you will maintain the confidentiality and security of any of your Account details or passwords;

(g) you have reviewed this Agreement, including our Website Terms of Use and Privacy Policy, available on the Website, and you understand them and will use the Services in accordance with them; and

(h) you have all hardware, software and services which are necessary to access and use the Services.

18. Confidential Information

18.1 Confidential

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

(a) where permitted by this Agreement;

(b) with the prior written consent of the Discloser;

(c) where the Confidential Information is received from a third Party, except where there has been a breach of confidence;

(d) on a confidential, “needs to know” basis to the Recipient’s Personnel, auditors, insurers, agents and professional advisors; or

(e) where the Recipient is compelled to do so by Law, provided that it gives the other Party written notice prior to disclosure.

18.2 Use

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

19. General

19.1 Amendment

We may amend this Agreement at any time with not less than 30 days’ notice to you via an in-Account notification or via email. If you can demonstrate that any such amendment will have a material adverse effect on you and you do not agree with it, you may terminate this Agreement within 30 days of the date of the notice in accordance with clause 16.5 (Termination for amendment).

19.2 Assignment

Neither Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement

without the prior written consent of the other Party. Any purported dealing in breach of this clause is of no force or

effect.

19.3 Delay

(a) If the provision of the Services depends upon or includes the provision of information, materials, consents or approvals by you or your Personnel, or requires your cooperation, action or response (or that of your Personnel), you must provide that information, cooperation and those materials, consents or approvals in a timely manner.

(b) If you breach this obligation, we will be entitled to an extension of time in respect of any deadline or milestone to the extent of the delay caused by you and we will have no Liability for a failure to perform the Services caused by you.

(c) If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate this Agreement with you by giving you five Business Days’ notice in writing.

19.4 Disputes and notices

(a) Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, this Agreement without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).

(b) Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to the Party at the address as set out on the Website or as otherwise agreed between the parties. A Party may change its notice details by written notice to the other Parties. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.

19.5 Entire agreement

This Agreement (including the Data Processing Addendum) and the Free User and Invited User Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations,

understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

19.6 No Exclusivity

The Services will be provided to you on a non-exclusive basis.

19.7 Feature sets

We reserve the right at any time and from time to time to change or remove features of the Services provided that, where there is any material negative alteration to the functionality of the Services in accordance with this clause, we will provide you with 20 Business Days’ notice and you may terminate this Agreement by written notice without Liability to us.

19.8 Overseas access

The Services may be accessed in Australia and overseas. We make no representation that the Services complies with the Laws (including Intellectual Property laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.

19.9 Waiver

Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

19.10 Severance

If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.

19.11 Governing law

This Agreement is governed by the laws of New South Wales, Australia.

20. Definitions and interpretation

20.1 Definitions

Unless defined on the Website or as otherwise agreed between the Parties, the following words will mean:

Account is defined in clause 6 (Accounts);

Agreement means the terms and conditions in this document and all documents attached to, or referenced in, this document, including the Data Processing Addendum and any other addendums, annexures, schedules or

attachments;

Authorised User means a user permitted to access and use the Services under your Account;

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in the New South Wales;

Business Hours means 9am to 5pm on a Business Day;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes confidential information about a Party’s business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know-how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential” but does not include any information which is in the public domain other than through a breach of confidence. Our Confidential Information includes our Intellectual Property including the Software. Your Confidential Information includes the Customer Data;

Consequential Loss includes any indirect loss, incidental loss, consequential loss, real or anticipated loss of profits,

loss of revenue, loss of production, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of use, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data, any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement whether under statute, contract, equity, tort (including negligence), indemnity or otherwise and whether involving a third party or a Party to this Agreement or otherwise;

Customer Data means the information, logos, documents and other data inputted by you, your Personnel or

Authorised Users into the Software or stored by the Services or generated by the Services as a result of your use of the Services;

Data Load means the loading of required drawings including material take-off and drawing digitization;

Data Processing Addendum means the addendum which sets out how we process Personal Data in accordance with the GDPR and Privacy Act, available here https://BeeCastle.com/privacy/;

Fees means the fees set out on the Website or as otherwise agreed between the Parties, including the Development Fees, Subscription Fees and Setup Fees;

Force Majeure Event means an event which is beyond a Party’s reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, pandemic, COVID-19, quarantine restriction, transportation embargo, and strike by employees of a third person;

Free User and Invited User Terms means the terms and conditions for free users and invited users, available here https://BeeCastle.com/terms/;

GDPR means the EU General Data Protection Regulation 2016/679;

GST has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names. Our Intellectual Property includes the Software;

Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act and the Spam Act 2003 (Cth); Liability means any expense (including legal fees), cost,

liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct

or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise;

Personal Data means ‘personal data’, ‘personal information’ or any equivalent term as defined in applicable Privacy Laws; Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;

Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;

Privacy Act means the Privacy Act 1988 (Cth);

Privacy Laws means all privacy and data protection laws and may include the GDPR and Privacy Act;

Services means the BeeCastle cloud-based materials and logistics tracking software specifically designed for the construction industry and any Setup Services, Development Services or support services we agree to provide to you.

Setup Service means (if applicable) the services as described on the Website or as otherwise agreed between the Parties to set up the Services.

Setup Fees means the setup fees set out on the Website or as otherwise agreed between the Parties;

Software means the software used to provide any of the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered

into by the Parties;

Subscription Fees means the fees as set out on the Website or as otherwise agreed between the Parties; and

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.

21. Interpretation

In this Agreement, unless the context otherwise requires:

(a) the singular includes the plural and vice versa;

(b) headings are for convenience only and do not affect interpretation;

(c) if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

(d) the word “month” means calendar month and the word “year” means 12 months;

(e) the words “in writing” include any communication sent by letter or email or any other form of communication capable of being read by the recipient;

(f) the word “includes” and other similar words mean “includes without limitation”;

(g) a reference to $ or dollars refers to the currency of Australia from time to time; and

(h) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body.

For any questions and notices, please contact us at:

BeeCastle Pty Ltd

ACN 168 464 060

Address: 20 Hunter Street, Sydney, NSW 2000, AUSTRALIA

Email: support@beecastle.com

Data Processing Addendum

This Data Processing Addendum (including the annexures, together the Addendum) forms part of and supplements the Agreement and is entered into by us and you (the counterparty accepting the Agreement). You enter into this Addendum by accepting the Agreement in accordance with clause 5.1 (Acceptance) of the Agreement.

1. Processing of Your Personal Data

1.1 Application: This Addendum will only apply to the extent the Applicable Laws apply to the processing of Your Personal Data.

1.2 Role of Parties: The Parties acknowledge that for the purposes of this Addendum:

(a) Annex 1 describes the subject matter and details of the processing of Your Personal Data;

(b) with respect to EU Data Protection Laws, we act as a Processor of Your Personal Data; and

1.3 Compliance: Each Party will comply with all Applicable Laws in the Processing of Your Personal Data.

1.4 Authority: If you act as a Processor of Your Personal Data, you represent and warrant to us that you are authorised by the relevant Controller to provide your instructions and take any actions you take with respect to Your Personal Data.

1.5 Your instructions: By entering into this Addendum, you instruct us to Process Your Personal Data only:

(a) to provide the Services and any related technical support;

(b) as specified by you during your use of the Services and any related technical support;

(d) as otherwise further instructed by you.

1.6 Compliance with your instructions: We will only Process Your Personal Data in accordance with your instructions as set out in clause 1.5 (Your instructions), unless other Processing is required by an Applicable Law to which we are

subject, in which case we will, inform you of that legal requirement before Processing Your Personal Data for that

purpose, unless the Applicable Law prohibits us from doing so on important grounds of public interest.

2. Subprocessors

2.1 Existing Subprocessors: You specifically authorise our engagement of the Subprocessors already engaged by us as at the date of this Addendum (as set out in Annex 2).

2.2 New Subprocessors: We will give you prior written notice (including via email) of the appointment of any new Subprocessor. If, within 10 days of the date of that notice:

(a) you have not taken this opportunity to object by notifying us in writing of any objections (on reasonable grounds) to the proposed appointment of that Subprocessor, we will deem you to have authorised the appointment of that Subprocessor; or

(b) you notify us in writing of any objections (on reasonable grounds) to the proposed appointment we will do one of the following, at our election: (i) not appoint that Subprocessor; (ii) not disclose any of Your Personal Data to that Subprocessor; (iii) not disclose any of Your Personal Data to that Subprocessor until reasonable steps have been

taken to address the objections you raised and you have been informed of and agreed to that Subprocessor based on the reasonable steps taken; or (iv) inform you that you may terminate the Agreement immediately upon written notice to us. You agree that the remedies in this clause 2.2(b) (New Subprocessors) are the only remedies available if you object to any new Subprocessor.

2.3 Our Subprocessor obligations: With respect to each Subprocessor we will:

(a) ensure that the arrangement between us and the Subprocessor is governed by a written contract including terms which meet the requirements of Article 28(3) of the GDPR; and

(b) remain fully liable to you for the performance of all obligations subcontracted to such Subprocessor, and for any acts or omission of such Subprocessor that cause us to breach any of our obligations under this Addendum.

3. Data Subject Rights

3.1 Self-service: As part of the Services, if available, we may provide you with some self-service features via your Account which you may be able to use, at no additional cost, to access, port, rectify, delete, object to or restrict the use of Your Personal Data in connection with your obligations under Applicable Laws with respect to responding to

requests from Data Subjects.

3.2 Our assistance with requests: If:

(a) there is a self-service option and you require additional assistance with responding to requests from Data Subjects, we will use commercially reasonable efforts to assist you to the extent legally required. Any assistance we provide to you in accordance with this clause 3.2(a) (Our assistance with requests) will be at your expense (on a time and materials basis); or

(b) there is no self-service option available and you require assistance with responding to requests from Data Subjects, we will assist you to the extent legally required.

3.3 Notifying you: We will promptly notify you if we receive a request from a Data Subject under any EU Data Protection Laws in respect of Your Personal Data, and we will not respond to that request except:

(a) to acknowledge the request and/or direct the Data Subject to you;

(b) on your documented instructions; or

(c) as required by Applicable Laws to which we are subject, in which case we will, to the extent permitted by Applicable Laws, inform you of that legal requirement before responding to the request.

3.4 No restriction: For the avoidance of doubt, nothing in this Addendum will restrict or prohibit us from responding to any Data Subject Request with respect to Personal Data for which we are the Controller or where an Applicable Law requires us to respond.

4. Data Protection Impact Assessment and Prior Consultation

4.1 Other compliance assistance: Upon your written request and to the extent required by EU Data Protection Laws, we will (taking into account the nature of the Processing and the information available to us) provide all reasonably

requested assistance to you where you are fulfilling your obligations under the EU Data Protection Laws, including

where you are carrying out a data protection impact assessment or engaging in prior consultations with Supervisory Authorities, as follows:

(a) by complying with clause 6 (Security) and clause 7 (Audit) of this Addendum;

(b) by providing the information contained in the Agreement, including this Addendum; and

(c) if you reasonably require further assistance to fulfil your obligations under the EU Data Protection Laws, by providing such further assistance at your expense (on a time and materials basis).

5. Restricted Transfers

5.1 Data importer and exporter: To the extent EU Data Protection Laws apply and subject to clause 5.2(Application), we (as data importer) and you (as data exporter) (notwithstanding that you may be located outside the EU) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from you to us. The Parties agree that for the purpose of the Standard Contractual Clauses, Annex 1 to this Addendum will replace Appendix 1 to the Standard Contractual Clauses and Annex 3 to this Addendum will replace Appendix 2 to the Standard Contractual Clauses.

5.2 Application: The Standard Contractual Clauses will come into effect under clause 5.1 (Data importer and exporter) on the commencement of the relevant Restricted Transfer, unless the jurisdiction to which Your Personal Data is transferred is recognised by the European Commission as providing an adequate level of protection for Personal Data.

6. Security

6.1 Our security measures: Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk to the rights and freedoms of natural persons (in particular from a Personal Data Breach), we will implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, the measures described in Annex 3. We may update our security measures, including, the measures described in Annex 3, from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Services.

6.2 Your security measures: You agree that, except as expressly provided by this Addendum, you are solely responsible for your secure use of the Services, including:

(a) assessing and using the Services so as to ensure an acceptable level of risk to Your Personal Data;

(b) keeping your account credentials confidential and secure; and

(c) protecting Your Personal Data that you elect to store or transfer outside of the Services (and for which we will have no obligation).

6.3 Confidentiality: We will take reasonable steps to ensure any of our personnel who Process Your Personal Data, have been informed of the confidential nature of Your Personal Data and have committed themselves to keeping Your Personal Data confidential.

6.4 Personal Data Breach: We will notify you after we become aware of a Personal Data Breach promptly and without undue delay and, to the extent possible, provide you with information about the Personal Data Breach to assist you to meet your obligations under Applicable Laws. On your reasonable request we will take such reasonable commercial steps as are directed by you to assist in the investigation, mitigation and remediation of any Personal Data Breach and if the Personal Data Breach is caused or contributed to by you, you agree this assistance will be your expense (on a time and materials basis). Our notification of, or response to, a Personal Data Breach in connection with this clause 6.4 (Personal Data Breach) will not be construed as an acknowledgment by us of any fault or liability with respect to the Personal Data Breach.

6.5 No restriction: For the avoidance of doubt, nothing in this Addendum will restrict or prohibit us from notifying a

Personal Data Breach where we reasonably believe an Applicable Law or contractual commitment requires us to do

so.

7. Audit

7.1 Your audit rights: To the extent EU Data Protection Laws apply and subject to written notice of not less than 30 days, and no more than once annually, on receiving a reasonable request from you for us to demonstrate compliance with Article 28(3) of the GDPR, we will (subject to our obligations of confidentiality):

(a) make available information directly relating to Your Personal Data and necessary to demonstrate our compliance with Article 28(3) of the GDPR; and

(b) if the information provided under clause 7.1(a) (Your audit rights) is not sufficient to confirm compliance, allow you or an independent and suitably qualified auditor appointed by you, to carry out audits, including inspections, in relation to the Processing of Your Personal Data by us in compliance with Article 28(3) of the GDPR, and

you agree to:

(c) only request access to information for the purpose of good faith fulfilment of your obligations under EU Data Protection Laws; and

(d) take all reasonable measures to limit any adverse impact on us.

8. Deletion or return of Your Personal Data

8.1 Deletion or return process: Following the expiry or termination of the Agreement, we will, within 90 days of the date of expiry or termination, destroy or return to you (if you request Your Personal Data to be returned to you within

5 days after the date of expiry or termination), all Your Personal Data in our possession or control unless any Applicable Laws require that we retain Your Personal Data.

9. General Terms

9.1 Liability: Each Party’s liability taken together in the aggregate arising out of or related to this Addendum (including the Standard Contractual Clauses) will be subject to the exclusions and limitations of liability in the Agreement.

9.2 Term: This Addendum will commence on the date the Agreement commences and will remain in effect until, and

automatically terminate on deletion or return of Your Personal Data in accordance with clause 8.1 (Deletion or

return process).

9.3 Order of precedence: The Parties agree that this Addendum will replace any existing data processing agreement or substantially similar document that the Parties may have previously entered into in connection with the Services. In the event of any conflict or inconsistency between the documents entered into between the Parties, the Standard

Contractual Clauses will prevail, then this Addendum, then the terms of the Agreement, and then any other documents incorporated into the Agreement.

9.4 Obligations under the Terms: Subject to clause 9.3 (Order of precedence), nothing in this Addendum reduces the Parties’ obligations under the other documents which form part of the Agreement and the terms of these documents will continue to apply in full force and effect.

9.5 Severance: If a provision of this Addendum is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Addendum without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Addendum.

9.6 Governing law: This Addendum is governed by the laws of New South Wales, Australia.

10. Definitions and Interpretation

10.1 In this Addendum, capitalised terms have the meanings assigned to them in the terms of the Agreement and the following terms will have the meanings set out below and cognate terms will be construed accordingly:

(a) Agreement means the terms and conditions of the SaaS Agreement entered into between the Parties and all documents attached to, or referenced in, those terms and conditions (including this Addendum) and any other addendums, annexures, schedules or attachments;

(b) Applicable Laws means (a) any EU Data Protection Laws applying to the Processing of Your Personal Data; (b) the Privacy Act as it applies to the Processing of Your Personal Data; and (c) any other law applicable to a Party;

(c) Your Personal Data means any Personal Data Processed by us on your behalf, including any Personal Data about your Authorised Users, in connection with the Agreement;

(d) EEA means the European Economic Area;

(e) EU Data Protection Laws means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

(f) Restricted Transfer means a transfer of Your Personal Data where such transfer would be prohibited by EU Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of EU Data Protection Laws) in the absence of the Standard Contractual Clauses or another lawful data transfer mechanism as set out at clause 5 (Restricted transfers) above;

(g) Standard Contractual Clauses means the contractual clauses set out by the European Commission available at https://eurlex.europa.eu/legalcontent/en/TXT/?uri=CELEX%3A32010D0087, as updated or replaced from time to time; and

(h) Subprocessor means any person (including any third Party, but excluding our employees or contractors) appointed by or on behalf of us to Process Your Personal Data.

10.2 The terms, Commission, Controller, Data Subject, Member State, Personal Data Breach, Processor, Processing, Special Categories of Data and Supervisory Authority will have the same meaning as in the GDPR, and their cognate terms will be construed accordingly.

Annex 1 – Details of processing of your personal data

This Annex 1 includes certain details of the Processing of Your Personal Data as required by Article 28(3) GDPR.

1. Subject matter and duration of the Processing of Your Personal Data

The subject matter and duration of the Processing of Your Personal Data are set out in the Agreement and this Addendum.

2. The nature and purpose of the Processing of Your Personal Data

The nature and purpose of the Processing of Your Personal Data is further specified in the Agreement, this Addendum and as further instructed by you.

3. The types of Your Personal Data to be Processed

The types of Your Personal Data to be Processed may

include but is not limited to the following:

a. Data Subject’s name;

b. Data Subject’s email address;

c. Data Subject’s phone number;

d. Data Subject’s City/Region/Country

e. the entity/entities the Data Subject is connected to;

f. Data Subject’s role within an entity;

g. information about a Data Subject’s use of the online Services;

h. details of the Services requested by a Data Subject and provided to a Data Subject’s and our response to a Data Subject, including with respect to any support requests;

i. any feedback a Data Subject’s provides to us, including in any feedback surveys;

j. Data Subject’s IP address;

k. Data Subject’s device type;

l. Data Subject’s device carrier/service provider;

m. Data Subjects operating software (OS);

n. Data Subjects preferred language;

o. any other Personal Data requested by us and/or provided by you or a third Party about a Data Subject.

We do not request any Special Categories of Data for Processing.

4. The categories of Data Subject to whom Your Personal Data relates

The categories of Data Subject to whom Your Personal Data relates are as follows:

a. an Authorised User under your Account for the Services.

5. Your obligations and rights

Your obligations and rights are set out in the Agreement and this Addendum.

Annex 2 – Details of our current Subprocessors

This Annex 2 includes a full list of your current Subprocessors for the Services.

AWS
Box.com
Hubspot
Intercom
Meta
Microsoft
MongoDb
Newrelic
Stripe
Twilio
Other subprocesses determined by the BeeCastle CTO from time to time

Annex 3 – Technical and organisational security measures

Description of the technical and organisational security measures implemented by the data importer in accordance with clauses 4(d) and 5(c) of the Standard Contractual Clauses:

We implement technical and organisation security measures to protect Your Personal Data which we Process.

a. Privacy Policy (incl breach disclosure policy);

b. Multi-tenant security controls for separation of users and data within the service;

c. All APIs/open interfaces secured and encrypted. JWTs used for authentication, HTTPS connections required;

d. All data in transit is encrypted using SSL;

e. Encryption of User passwords;

f. Physical security controls at office.