TERMS AND CONDITIONS

Buildcam Inc

Last updated: 1 July 2024

1. General

1.1. Buildcam Inc. ("Buildcam") supplies various project monitoring and timelapse hardware products and related products ("Goods") and project monitoring and time lapse software and cloud solutions ("Services").

1.2. The supply, access to and use of the Goods and Services is subject to:

  • (a) these Terms and Conditions which govern generally the supply of the Goods, as well as the use and supply of the Services; and
  • (b) if relevant, any End User Licence Agreement ("EULA") or Terms of Use ("TOU") applicable to your use of the Services,

and any updates or modifications made by Buildcam to the foregoing and notified to you from time to time (together, "these Terms").

1.3. By completing a Purchase Order form or otherwise acquiring in whole or part the Goods or Services, you ("Customer") expressly agree to these Terms. Your Purchase Order and these Terms will constitute the entire agreement between us in relation to its subject matter, except terms implied by law which are not, or cannot, be excluded, and supersedes any and all other prior agreements or discussions unless otherwise agreed in writing.

1.4. Any other contractual terms of the Customer (whether upon the Customer's order or elsewhere) shall not apply and shall have no effect.

2. Payment Terms

2.1. The supply, access to and use of the Goods and Services is subject to payment of all applicable fees as set by Buildcam from time to time. You are responsible for timely payment of any and all fees incurred by you for the supply, access to and use of the Goods and/or Services. Unless otherwise notified or advised in writing by Buildcam:

  • (a) For customers who have been approved for credit, payment terms will be advised at time of successful approval and the payment data added to the Invoice. Invoices shall be due and payable as per the due date on the invoice.
  • (b) Customers who have not been approved for credit must make full payment in advance before the dispatch of any equipment or services Invoiced. Payment for the order must be received and cleared by Buildcam before any products are shipped or Services are rendered.
  • (c) The approval of credit terms for customers is subject to Buildcam's Credit Approval Process
  • (d) payment for future Services must be paid when an invoice is due.

2.2. In order to procure and access the Services, the Customer may be required to link a credit card or other selected payment method to their subscription for the Services. We use a third-party payment service provider and do not otherwise directly collect or store your payment information. You authorise us to charge your selected payment method for the fees you incur arising from your access to and use of the Services.

2.3. The Customer acknowledges and agrees that:

  • (a) Buildcam may charge interest at a rate equivalent to two percent (2%) in excess of the Prime Rate as published in the Wall Street Journal. If payments are not received by the relevant due date, calculated on and from the due date until and including the date of payment in full;
  • (b) Buildcam is entitled to set-off against any money owing to the Customer amounts owed to Buildcam by the Customer on any account whatsoever;
  • (c) any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in clause 2.3(d), and then to the principal amount owed;
  • (d) the Customer is liable for all reasonable expenses (including debt collection fees and contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Buildcam for enforcement of obligations and recovery of monies due from the Customer to Buildcam; and
  • (e) Buildcam reserves the right to suspend or terminate the Customer's subscription to the Services, including access to the Services and deletion of your Customer Data (as defined below), in the event Buildcam is unable to successfully charge your credit card or other selected payment method.

3. Quotations and Pricing

3.1. Prices charged for Goods and the Services will be according to a current quotation for those Goods and the Services or in the event there is no valid or current quotation, by reference to Buildcam's then standard and current prices as published on its website as at the date of order of the Services (whether notified to the Customer or not and regardless of any prices contained in the order). Buildcam will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.

3.2. Any quotation by Buildcam shall not constitute an offer. Unless otherwise stated in a relevant quotation, quotations will remain valid for twenty days from the date of the quotation.

3.3. Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.

3.4. Unless otherwise specified by Buildcam, the prices exclude:

  • (a) Any statutory tax, including any GST, duty or impost levied in respect of the Goods and/or the Services and which has not been expressly allowed for by Buildcam in calculating the price.
  • (b) Costs and charges in relation to insurance, packing (other than the standard packing of Buildcam), crating, delivery (whether by road, rail, ship or air) and export of the Goods and/or the Services.

3.5. Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer.

3.6. The contract between Buildcam and the Customer shall not be affected by any impositions or alterations of customs duties or by decisions of any customs department with regard to either classification or value of duty or landing charges occasioned thereby. Any such impositions shall be to the account of the Customer.

4. Delivery and Supply of Goods

4.1. Any times quoted for delivery and/or supply of Goods are estimates only and Buildcam shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Buildcam reserves the right to stop supply at any time if the Customer fails to comply with the Terms.

4.2. Buildcam may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon a satisfactory credit assessment of the Customer (including completion by Customer and approval by Buildcam of Buildcam's credit application by the Customer).

4.3. The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer's nominated address, or when Buildcam notifies the Customer that the Goods are available for collection.

4.4. Once the Goods have been delivered to the Customer, the Customer shall be liable for all cost, charge and expense incurred in the installation and ongoing maintenance, repair or upkeep of the Goods to ensure the Goods fulfil the Customer's intended purpose. If requested, Buildcam may consult with the Customer to determine ways in which to minimise any expense arising to the Customer under this clause.

4.5. If the Customer is unable or fails to accept delivery of the Goods, Buildcam may deliver it to a place of storage nominated by the Customer or, failing such nomination, to a place determined by Buildcam. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Buildcam on account of storage, detention, double cartage/delivery, or similar causes.

4.6. The Customer agrees that it will be obliged to and shall pay for the Goods on the due date notwithstanding that delivery is made after the agreed delivery date, and notwithstanding that the Goods may not yet be delivered on the due date.

5. End User Licence Agreement and Terms of Use

5.1. Buildcam may require the Customer or the end user of the Goods and/or Services to enter into a EULA and/or TOU as notified by Buildcam from time to time in relation to Goods and/or Services which require a EULA or Terms of Use ("EULA Goods").

5.2. The Customer acknowledges and agrees that Buildcam may refuse to supply the EULA Goods and/or Services until the EULA and or TOU is agreed by the Customer or end user to Buildcam's sole satisfaction.

5.3. The Customer acknowledges and agrees that such refusal to supply the EULA Goods and/or Services does not give the Customer a right to delay payment under these Terms.

6. Property

6.1. Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Buildcam from time to time:

  • (a) All sums outstanding become immediately due and payable by the Customer to Buildcam if the Customer is in default in paying any other sums due to Buildcam, becomes bankrupt, or commits any act of bankruptcy, enters into any arrangement with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver and manager or administrator appointed, notwithstanding the provisions of any other clause in the Terms.
  • (b) Title in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Buildcam (returning the same to Buildcam on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
  • (c) The Customer is only authorised to sell the Goods (or any portion of them) to third parties in good faith and on commercial arm's length terms as the fiduciary agent of Buildcam provided that there shall be no right to bind Buildcam to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Buildcam pursuant to the fiduciary relationship.
  • (d) In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment ("relevant proportion") received by the Customer for such goods or products on trust for Buildcam. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
  • (e) Buildcam is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage to any person.

6.2. At all times, Buildcam retains the right of possession of any pallets used for delivery of the Goods and the Customer agrees to indemnify Buildcam in respect of any pallets not returned to Buildcam in good order and condition (as reasonably determined by Buildcam) within fourteen (14) days of delivery of the Goods.

6.3. Any portable magazines in which Goods are delivered, and for which a hire charge is made, remain the property of Buildcam.

7. Availability of Stock

Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available. While Buildcam will use reasonable endeavours to advise the Customer of lack of availability of Goods being ordered, it is the responsibility of the Customer to specifically mark its order, "Do Not Back Order" if it does not wish for Goods to be placed on back order. Deliveries at any time are subject to availability of stock and Buildcam will not be liable for any charges due to product unavailability.

8. Freight

Subject to clause 3.4 and unless otherwise agreed, Buildcam will ship by the least expensive route and carrier to all points. If the Customer chooses a route with a higher charge than the route of Buildcam's choice for shipment, Buildcam will charge the difference to the Customer.

9. Returns, Cancellations and Claims

9.1. The Customer shall not return any Goods to Buildcam without completing the standard Return Authorisation Procedure. No returns will be accepted unless a copy of an approved Return Authorisation Form is enclosed with the returned Goods.

A credit note will be issued by Buildcam only after Goods returned are evaluated by Buildcam. The Customer shall not deduct the amount of any anticipated credit from any payment due to Buildcam but must await receipt of a credit note.

9.2. All Goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.

9.3. If Buildcam accepts the return of any Goods that have been ordered, Buildcam may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.

9.4. No cancellations or partial cancellation of an order for Goods and/or Services by the Customer shall be accepted by Buildcam unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Buildcam, will indemnify Buildcam against all loss, without limitation. Cancellation will not be accepted on Goods that are not regular stock which are in the process of manufacture or ready for shipment.

9.5. All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer's purchase order must be submitted by the Customer to Buildcam in writing within seven (7) business days of receiving the Goods. Receipt of goods will be taken from a courier receipt of delivery. Loss of an entire shipment of Goods in transit must be submitted by the Customer to Buildcam in writing within ten (10) business days from the Carriers advised estimated delivery date. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer's purchase order.

9.6. Nothing in this clause 9 is to be read or interpreted as excluding any right of the Customer, or liability of Buildcam, at law and which cannot be lawfully excluded from these Terms.

10. Subscription to and Use of Services

10.1. The Customer acknowledges and agrees that to make full use of the capabilities of the Goods, the Customer must also subscribe to and use the Services and Buildcam does not represent or warrant that the Goods may be utilised for its stated or intended purposes without use of the Services.

10.2. The Customer acknowledges and agrees that:

  • (a) Buildcam may, from time to time, offer different plans for the Services, including different inclusions and functionalities in each plan. Such plans are subject to change without notice to the Customer;
  • (b) a paid subscription is required to access the Services;
  • (c) the Customer may make some changes to their Services subscriptions. It is solely the discretion of Buildcam, which subscriptions can be changed;
  • (d) Termination of recurring subscriptions
  • (e) the Customer's monthly recurring subscription plan will continue and automatically renew each month either for the applicable subscription term set out in an order form or until such time the Customer suspends or terminates its Services in accordance with the Terms;
  • (f) Termination of fixed term subscriptions
    • (i) if the Customer has subscribed to a fixed-term subscription plan, the subscription will automatically terminate at the end of the specified term, unless the customer chooses to renew it.
    • (ii) the Customer will have the option to renew their subscription for another fixed term in accordance with the terms and conditions applicable at the time of renewal.
    • (iii) if the Customer chooses not to renew their fixed-term subscription, the subscription services will cease at the end of the term without any further action required by the customer.
  • (g) it will use the Services in compliance with their intended use and/or any other written instructions provided by Buildcam from time to time;
  • (h) follow any instructions provided by Buildcam in relation to access to and use of the Services;
  • (i) Installation of any and all updates is required to ensure ongoing service. In the event the Customer is not using the latest updates, the Customer may not be able to continue to access the features and functionality of the Goods and Services and the Customer acknowledges and agrees that Buildcam shall have no liability to the Customer in respect of any and all loss suffered or incurred by the Customer directly or indirectly arising from or in connection with such delay or failure; and
  • (j) the customer engages in fair and appropriate use of our system and must not negatively impact our products and services.

10.3. Buildcam does not represent or guarantee that the Services, or any particular feature of the Services, will be available in all countries, in any particular location, in any particular language or will be available uninterrupted at all times.

10.4. Buildcam reserves the right to change, modify or disable the Services or any features of the Services at any time without any liability to you. Where such change, modification or disabling will result in a material adverse change to the Services, Buildcam will use reasonable endeavours to provide you with notice as soon as becoming aware of an upcoming service change unless Buildcam is unable to do so, or it would be unreasonable to do so, due to circumstances beyond its reasonable control including changes required to meet legal or regulatory requirements, to address security issues, to ensure technical integrity or availability of the Services or as result of any force majeure event.

10.5. The Customer must only use the Services in accordance with the Terms and otherwise in accordance with all applicable laws. Any use of the Services or any features of the Services, except use as permitted or authorised under the Terms, is strictly prohibited. Such other use may infringe the intellectual property rights of other parties and may be subject to civil and/or criminal penalties.

10.6. Buildcam, and its licensors, retain full right, title and interest (including all intellectual property rights and other proprietary rights) in and to the Services. Nothing in the Terms should be construed as conferring on you any right to the Services except as expressly granted by the Terms

11. Customer Content

11.1. In the Terms and Conditions, "Content" means any and all data, material and information, including audio files, video files, image files, other electronic files and metadata, that the Customer uploads, stores, imports into, creates, generates through or otherwise shares with the Services.

11.2. The Customer must not upload, store, import into, create, generate, transmit or otherwise share any Content through the Services that:

  • (a) is intentionally false, defamatory, unlawful, invasive of a person's privacy, threatening or harassing or prohibited by any applicable law; and/or
  • (b) is abusive, obscene, profane, harmful, hateful or is otherwise objectionable or likely to be objectionable.

11.3. Buildcam reserves the right to restrict access to or remove any Content at any time for any reasons including where the Content is determined by Buildcam to be in breach of the Terms.

11.4. The Customer acknowledges and agrees that it is responsible for backing up any of its Content. Buildcam reserves the right to delete any backups or Content of a Customer stored in the Services if payment for these Services have not been paid by the due date stated on the invoice, or where the Customer's subscription to the Services has been terminated under the Terms.

11.5. You represent and warrant to Buildcam that you are not breaching any laws or licenses in your use of Buildcam Goods or Services. You hereby indemnify Buildcam from and against any loss, liability, suit, claim, demand, or compensation due to a breach of this warranty.

11.6. The Customer irrevocably grants Buildcam a non-exclusive, fully paid up, worldwide right to reproduce, modify, use and to otherwise exploit all data and material, including the Customer's Content, relating to the Customer or generated through the Customer's access to and use of the Cloud Service, including Content generated through the Customer's access to and use of the Cloud Service in the past or in the future, for the purposes of:

  • (a) providing the Services to the Customer, including as part of the functionalities and features of the Services;
  • (b) undertaking training, development and improvement of Buildcam's Goods and the Services; and
  • (c) undertaking research, generation, and development of Buildcam's current or future product offerings, including any research, generation or development involving any artificial intelligence and/or machine learning processes using the Customer's Content on a de-identified basis.

12. Notification

The Customer must notify Buildcam in writing within seven (7) days of:

  • (a) Any alteration of the name or ownership of the Customer.
  • (b) The issue of any legal proceedings against the Customer.
  • (c) The appointment of any provisional liquidator, liquidator, receiver, receiver and manager or administrator to the Customer.
  • (d) Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Buildcam for all Goods and Services supplied to the new owner by Buildcam until notice of any such change is received.

13. Warranties

13.1. To the maximum extent permitted by law, Buildcam does not represent or warrant to the Customer that the Goods and/or Services will be defect or error-free or uninterrupted or that they are suitable for the Customer's intended purpose, or that the Customer will obtain any specific results from its access to or use of the Goods and/or Services. Buildcam provides the Goods and Services to the Customer on an "as is" and "as available" basis.

13.2. The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods and/or Services for specific purposes and procedures and, in this respect, shall indemnify Buildcam from and against any suit, claim, demand or compensation which, but for the Terms, the Customer may have had against Buildcam.

13.3. The Customer warrants to Buildcam that it is purchasing Goods and/or Services as the principal and not as an agent.

14. Limitation of Liability

14.1. Nothing in the Terms purports to modify or exclude the conditions, warranties and undertakings, and other legal rights, under Nevada consumer protection laws and other laws which cannot be lawfully excluded from these Terms ("Statutory Guarantees"). Except for liability under any Statutory Guarantees, all other warranties, conditions, guarantees, liabilities or remedies are expressly excluded. Where Buildcam is liable under any Statutory Guarantees, Buildcam's liability shall be limited, at its option, to one or more of the following:

  • (a) if the breach relates to goods:
    • (i) the replacement of the goods or the supply of equivalent goods;
    • (ii) the repair of such goods;
    • (iii) the cost of replacing the goods or of acquiring equivalent goods; or
    • (iv) the cost of having the goods repaired; and
  • (b) if the breach relates to services:
    • (i) the supplying of the services again; or
    • (ii) the cost of having the services supplied again,

and the Customer acknowledges and agrees that such limitation of our liability is reasonable in all the circumstances.

14.2. Without limiting the forgoing, Buildcam shall have no other liability for any loss or damage of any kind (including, without limitation, any direct, indirect, consequential, special or exemplary loss or damage) howsoever arising (whether in contract, tort or otherwise) arising from or in connection with:

  • (a) the supply or use of the Goods and/or Services; and
  • (b) the storage, backup or access to the Services, including the loss, deletion, damage or corruption of any Content or inability to access the Services.

15. Termination and Suspension of the Terms

15.1. Where permitted by Buildcam in writing, the Customer may suspend or terminate its use of the Services. The Customer is responsible for retrieving any Content prior to ceasing use of the Services. Suspension or termination does not relieve the Customer of its obligation to pay any outstanding fees which have accrued prior to suspension or termination.

15.2. Buildcam reserves the right to suspend or terminate the Customer's access to and use of the Cloud Services in its sole discretion. Where Buildcam suspends or terminates the Customer's access to and use of the Services without cause, Buildcam will use reasonable endeavours to provide the Customer with at least thirty (30) days notice with instructions for the Customer to retrieve their Content. Buildcam may otherwise immediately suspend or terminate the Terms and/or the Customer's access to and use of the Services, and without liability to the Customer for any loss of any Content, where:

  • (a) the Customer breaches a provision of the Terms (or acts in a manner that demonstrates the Customer is unable to, or does not intend to, comply with these Terms);
  • (b) the Customer accesses or uses the Services in a fraudulent or unlawful manner, including uploading, storing, sharing or creating Content which Buildcam considers to be unlawful or objectionable;
  • (c) the Customer accesses or uses the Goods and/or the Services for fraudulent or illegal activities;
  • (d) the Customer harasses, abuses or threatens to harass or abuse Buildcam, its employees or agents;
  • (e) Buildcam is required to do so by law;
  • (f) there are unexpected technical or security problems or issues with the Goods and/or the Services;
  • (g) Buildcam elects to discontinue the Services, in whole or in part;
  • (h) the Customer fails to pay any fees owing under the Terms by their due date; or
  • (i) Buildcam is otherwise permitted to do so under the Terms.

15.3. Upon termination of the Terms for any reason, all outstanding fees accrued and outstanding as at the date of termination shall be immediately due and payable by the Customer.

16. Assignment

The Terms shall not be assignable by the Customer, either in whole or in part. Buildcam reserves the right to assign its rights and obligations under the Terms without notice to the Customer.

17. Modification to these Terms

Buildcam reserves the right to amend, update, modify or replace the Terms from time to time by notification to you. Any such change to the Terms will not apply retroactively, and any changes made to the Terms will take effect proactively, from the date of the notification. The Customer acknowledges and agrees that they are responsible for reviewing the Terms from time to time to ensure that they are familiar with, have read and understood the current version of the Terms.

18. Force Majeure

Buildcam shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation, or any other cause beyond the control of the parties renders provision of the Goods and/or the Services impossible. Where the force majeure continues for a period of more than 120 days, either party may elect to terminate the Terms.

19. Failure to Act

Buildcam's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in the Terms, or Buildcam's failure to exercise any right or remedy available under the Terms or at law, or Buildcam's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under the Terms shall not constitute a waiver of any subsequent default or a waiver of Buildcam's right to demand timely payment of future obligations or strict compliance with the Terms.

20. Jurisdiction

20.1. The Terms are governed by and interpreted according to the laws of the State of Nevada, USA, excluding that body of law applicable to conflict of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

20.2. Any dispute, claim, or controversy arising out of or relating to this agreement, including its formation, interpretation, performance, breach, termination, validity, or enforceability (collectively, "Disputes"), shall be subject to the exclusive jurisdiction of the state and federal courts located within the State of Nevada.

20.3. The parties hereby waive any right to a jury trial and any objection to personal jurisdiction, venue, or forum non-conveniens with respect to any Disputes that may arise in connection with this agreement.

20.4. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.

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