Terms of Service

DigitalSF (Social Framework) and/or BlueSF acting on behalf of DigitalSF.

Effective Date: January 2025

1. Acceptance

1.1. TOS (Project subscriptions)

This TOS set out the terms and conditions which apply between the Licensee and DigitalSF Pty Ltd (ABN19 681 637 132) and/or BlueSF Pty Ltd (BSF ABN 76 667 364 810) in respect of the Licensee’s access to and use of the Software.

1.2. Acceptance

  • The Licensee signifies its acceptance and agreement with this TOS by either clicking “I agree” or accessing or using the Software.
  • If the Licensee also accepts the TOS on behalf of a company or other legal entity, the Licensee must be authorised to bind that company or other entity to the TOS. In that case, a reference in this TOS to the “Licensee” will also refer to that company or other entity.

2. Term

2.1. Initial Term

The initial term of this TOS:

  • commences on the Commencement Date and for a set period of 12 calendar months and/or being equal to 365 days.
  • subject to a further rollover monthly term under clause 2.2, continues after the set period 12 months,

unless otherwise terminated earlier in accordance with the TOS (Initial Term).

2.2. Rollover

Unless:

  • one of the parties provides written notice to the other party of an intention to allow the Term to expire prior to the expiration of the Initial Term or any Further Term under this clause 2.2 (Expiry Notice); or
  • the TOS has been otherwise terminated earlier in accordance with clause 6 of the TOS,

the TOS shall automatically and continuously renew for further periods of 1 calendar month (“Further Term”) on the terms and conditions of the TOS..

2.3. Expiry Notice

If a party provides an Expiry Notice to the other party in accordance with clause 2.2 the Term shall expire on the date of expiration of the Further Term (as the context requires)

3. Grant of Licence

3.1. Grant of Licence - Software

  • Subject to clause 3.1(b) and 3.1(c), DigitalSF grants to the Licensee a non-exclusive, revocable, non-transferable licence to:
    • access and use the Software for commercial purposes in accordance with this TOS; and
    • use any Documentation provided by DigitalSF in but only for the purpose identified in paragraph (1) above,
    (Licence).
  • The Licensee agrees the Licence is subject to the following restrictions:
    • the Licence expressly excludes a right of sub-licence in respect of the Software;
    • the Licensee must not develop, use or make available the Software or any Documentation to any other third party, without DigitalSF prior written agreement; and
    • DigitalSF ownership of the Intellectual Property Rights in the Software and the Documentation is not altered by this TOS and remains the sole property of DigitalSF and its licensors (as applicable).
  • The Licensee must not (and must ensure its employees, contractors, directors and officers must not), in relation to DigitalSF Intellectual Property Rights:
    • reverse engineer or decompile the Intellectual Property Rights of DigitalSF (including in the Software);
    • reproduce, modify or adapt the Software to create any derivative works based on the Software;
    • use or permit the Software to be accessed in any unauthorised way, including via interfaces (including exposing or “passing through” a software API or otherwise making the Software accessible as an API);
    • challenge the validity of DigitalSF Intellectual Property Rights; or
    • do or permit any other act which infringes the Intellectual Property Rights of:
      • DigitalSF (or its licensors); or
      • a third party.
  • DigitalSF may suspend or remove the Licensee’s access to the Software, where in DigitalSF reasonable opinion the Licensee has breached a term of this TOS or has otherwise misused the Software.
  • The Licensee acknowledges and agrees that the rights granted under the Licence are expressly limited to those rights stated in the Licence. To the fullest extent permitted by law, all implied rights in relation to the Licence are excluded.
  • The Licensee acknowledges and agrees that nothing in this TOS requires DigitalSF to provide any support services or other assistance in respect of the Software.

3.2. Grant of Licence – Data

  • The Licensee grants to DigitalSF a non-exclusive and royalty-free right to use Licensee Data for the purpose of providing the Software and its functionalities to the Licensee.
  • The Licensee grants to DigitalSF a perpetual, royalty-free, non-exclusive licence to de-identified and aggregated Licensee Data arising from the Licensee’s use of the Software, for the purpose of DigitalSF improving its Software and services.

4. Licensee’s warranties

The Licensee warrants that it has all necessary ownership or licence rights to upload the Licensee’s Data to the Software, and to grant a licence to DigitalSF to use the Data for the purposes contemplated in this TOS.

5. Termination

5.1. Termination for cause

Either party (Terminating Party) may terminate the TOS immediately by written notice if:

  • the other party is in breach of the TOS and fails to remedy the breach within 14 days’ written notice specifying the breach and requiring it to be remedied;
  • the other party is in breach of the TOS and in the Terminating Party’s reasonable opinion such breach is not capable of remedy; or
  • an event of insolvency or bankruptcy occurs in respect of the other party.

5.2. Termination for convenience

Either party may terminate this TOS at any time by giving 14 days’ prior written notice to the other party.

5.3. Consequences of termination

Upon termination or expiration of this TOS:

  • the Licence is immediately revoked, and the Licensee must cease using the Software and must destroy or return to DigitalSF all copies of the Documentation and any Confidential Information of DigitalSF or relating to the Software; and
  • DigitalSF will return, anonymise or destroy any Licensee Data in its possession or control.

5.4. No prejudice of rights

Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.

6. Liability

6.1. Exclusion of liability

  • The Licensee acknowledges and agrees that:
    • the Software and Documentation is provided under the Licence as-is, and without any representation or guarantee that the Software or Documentation is or will be defect or error-free or will be fit for any particular use or purpose;
    • DigitalSF makes no representation or warranty that the Software will be available for use by the Licensee or its Personnel at any given time;

    And DigitalSF is not Liable for any such defect, unsuitability or unavailability.

  • To the fullest extent permitted by law, in no event will a party be liable to:
    • the other party for Consequential Loss, even if the first party has been made aware of the possibility of such Loss prior to entering into this TOS; or
    • to any third parties regarding, arising out of or in connection with the TOS.

6.2. Implied terms

To the full extent permitted by law, any term which would otherwise be implied into the TOS is excluded. If any law implies or imposes terms into the TOS which cannot be lawfully excluded, such terms will apply, save that DigitalSF liability for breach of any such term will be limited in accordance with clause 6.3.

6.3. Limitation of liability

To the fullest extent permitted by law, DigitalSF shall have no liability for any loss (including consequential loss and loss of data) claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise (whether in tort, statute or contract) arising under or in connection with the TOS.

7. General

7.1. Notices

The parties may give each other notice under the TOS by email or by post, at the address details notified to the other party from time to time.

7.2. Confidentiality

  • The Licensee must keep confidential the Confidential Information and must not, without DigitalSF prior written approval, disclose DigitalSF Confidential Information.
  • The Licensee must not, and must ensure that its employees, agents and any sub-contractors engaged for the purposes of the TOS do not, make public or disclose DigitalSF Confidential Information.
  • The Licensee must use commercially reasonable efforts to ensure that all information and Documentation of DigitalSF in its custody is always protected from unauthorised access or use by a third party, and from misuse, damage or destruction.
  • The Licensee must on demand, return to the other party any Confidential Information supplied by DigitalSF in connection with this TOS within 5 days of a demand from DigitalSF.
  • The Licensee is not in breach of this clause 7.2 in circumstances where when dealing with the Confidential Information it is legally required to disclose it, or discloses it to its related companies, solicitors, auditors, insurers or accountants.

7.3. Governing law and jurisdiction

This TOS will be governed by and construed in accordance with the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of Victoria.

7.4. Exercise rights

A single or partial exercise or waiver by a party of any right under or relating to this TOS will not prevent any other exercise of that right or the exercise of any other right.

7.5. Merger

If the liability of a party to pay money under this TOS becomes merged in any deed, judgment, order or other thing, the party liable must pay interest on the amount owing from time to time under that deed, judgment, order or other thing at the higher of the rate payable under this TOS and that fixed by or payable under that deed, judgment, order or other thing.

7.6. Moratorium legislation

Any law which varies prevents or prejudicially affects the exercise by a party of any right, power or remedy conferred on it under this TOS is excluded to the extent permitted by law.

7.7. No assignment

A party must not assign, transfer or novate all or any part of its rights or obligations under or relating to this TOS or grant, declare, create or dispose of any right or interest in it, without the prior written consent of each other party.

7.8. Remedies cumulative

The rights and remedies under this TOS are cumulative and not exclusive of any rights or remedies provided by law.

7.9. Severability

If a provision of this TOS is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this TOS has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

7.10. Further assurance

Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to this TOS and the transactions contemplated by it.

7.11. Costs

Each party is responsible for all its own costs incurred in the negotiation and performance of this TOS including legal costs.

7.12. Variation

An amendment or variation to this TOS is not effective unless it is in writing and signed by the parties.

7.13. Waiver

  • A party’s waiver of a right under or relating to this TOS, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.
  • No other act, omission or delay by a party will constitute a waiver of a right.

7.14. Counterparts

This TOS may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this TOS may deliver it to, or exchange it with, another party by faxing or emailing a pdf (portable document format) copy of the executed counterpart to that other party.

7.15. Whole agreement

This TOS:

  • is the entire agreement and understanding between the parties relating to the subject matter of this TOS; and
  • supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.

7.16. Survival

Clauses 3.1(b)(3), 3.1(c) , 5.3, 6, 7.2 and 8 will survive termination of this TOS.

8. Definitions and interpretation

8.1. Definitions

In this TOS:

Authorised Officer means, in relation to a corporation which is a party:

  • a solicitor acting on behalf of the party; or
  • a person appointed by the party to act as an Authorised Officer for the purposes of this TOS and notified to the others.

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:

  • it is present, unascertained, immediate, future or contingent;
  • it is based in contract, tort, statute or otherwise; or
  • it involves a third party or a party to this TOS.

Commencement Date means the date the Licensee first accesses or uses the Software (whichever is earlier).

Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), all information disclosed by or on behalf of the Discloser, concerning or relating to:

  • know-how, trade secrets, ideas, marketing strategies, operational information, technical information and financial information;
  • proprietary software tools, business processes, project management methodologies and tools, software testing and verification methods, solution architecture models and solutions;
  • its business affairs (including products, services, customers and suppliers); and
  • other information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential, but excluding any such information:
  • which is publicly known;
  • which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
  • which is developed independently by other party without reliance on any of the confidential information.

Consequential Loss means any of the following:

  • loss of revenue;
  • loss of profits;
  • loss of opportunity to make profits;
  • loss of business;
  • loss of business opportunity;
  • loss of use or amenity, or loss of anticipated savings;
  • special, exemplary or punitive damages; and
  • any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this TOS,

including any of the above types of loss arising from an interruption to a business or activity.

Corporations Act means the Corporations Act 2001 (Cth).

Data means any data and content uploaded, posted, transmitted or otherwise communicated through the Software.

Documentation means any user manuals, instructions or support information supplied by DigitalSF for use of the Software, together with any revisions from time to time, as DigitalSF or its Related Entities may publish from time to time.

Government Body means:

  • any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
  • any public authority constituted by or under a law of any country or political subdivision of any country; and
  • any person deriving a power directly or indirectly from any other Government Body.

Insolvency Event means an event of bankruptcy or insolvency, an assignment for the benefit of creditors, the appointment of a receiver, receiver and manager, provisional liquidator, liquidator and official manager or any similar person to any assets of a person, a failure to comply with a statutory demand, or anything else which occurs which is analogous or has a substantially similar effect, under the laws of any jurisdiction, or the person is otherwise insolvent or unable to pay its debts as and when they fall due.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions, plant breeder’s rights and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:

  • present or future; or
  • State, federal or otherwise.

Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.

Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.

Related Body Corporate includes any corporation that is deemed to be related to a person by virtue of the provisions of the Corporations Act.

Related Entity means a person which is a related entity within the meaning of that term in section 9 of the Corporations Act.

Software means the software application developed and owned by DigitalSF at the time the TOS is entered into but as modified, developed or enhanced by DigitalSF from time to time (including any corrections or fixes) and which is provided to the Client to assist the Client to conduct tasks and record information in respect of construction projects.

Term means the duration of the TOS, until it is terminated or expires in accordance with the TOS.

TOS means the terms and conditions in this document.

8.2. Interpretation

  • Unless the contrary intention appears, a reference in this TOS to:
    • this TOS or another document includes any variation or replacement of it despite any change in the identity of the parties;
    • one gender includes the others;
    • the singular includes the plural and the plural includes the singular;
    • a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
    • an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this TOS and a reference to this TOS includes any schedule or attachment;
    • a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
    • any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
    • money is to Australian dollars, unless otherwise stated; and
    • a time is a reference to Victorian time unless otherwise specified.
  • The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
  • Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
  • Headings and any table of contents or index are for convenience only and do not affect the interpretation of this TOS.

A provision of this TOS must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this TOS or the inclusion of the provision in this TOS.