Terms of Service

Welcome to Aphex! We provide a cloud-based platform (Platform) for construction project coordination and delivery.

In these terms and conditions (Terms), when we say you or your, we mean, you, the entity entering into these Terms. If you are an individual, we mean the entity you are authorised to represent and for which you act (such as your employer). If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

Our entity which you will enter into this contract with will depend on where you are incorporated or domiciled or your specific agreement with us. In the event of no explicit superseding agreement the default terms are:

where you are incorporated or domiciled in Australia, these Terms will be entered into between you and Aphex Australia Pty Ltd (ABN 13 628 119 648) (we, us or our); or
where you are incorporated or domiciled in any other region other than Australia, these Terms will be entered into between you and Aphex Software Limited, a company registered in England and Wales with company number 09681747 (we, us, or our).

Where you are entering into these Terms with Aphex Australia Pty Ltd, the Australian Addendum at Attachment 1 (Australian Addendum) will apply. In the event of any conflict between these Terms and the Australian Addendum (when you are contracting with Aphex Australia Pty Ltd), the Australian Addendum will take precedence.

These Terms form our contract with you, and set out our obligations as a service provider and your obligations as a customer. You cannot use our Services unless you agree to these Terms.

Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms or throughout these Terms.

For questions about these Terms, or to get in touch with us, contact us using the details below:

Our contact details:

UK entity

Aphex Software Limited, a company established in England and Wales. Our company registration number is 09681747.

Geographical address: 82 Wandsworth Bridge Road, London, SW6 2TF

Email address: [email protected]

Australian entity

Aphex Australia Pty Ltd (ABN 13 628 119 648).

Geographical address: 2/28 Metroplex Avenue, Murrarrie, 4172

Email address: [email protected]

Disclaimer regarding the use of AI: The Services may involve the use of Artificial Intelligence (AI) (through OpenAI, Anthropic, and any other AI provider introduced by us from time to time). See clause 4 for further information on our use of AI.

1. These Terms

These Terms contain the terms and conditions on which we supply the Platform to you, whether the Platform comprises of services and/or digital content. Please read these Terms carefully before you accept these Terms by accessing the Platform.

2. Engagement and Term

2.1 These Terms apply from when you accept these Terms, until the date on which all of your Authorised User’s Accounts are terminated in accordance with these Terms. We grant you and each Authorised User a right to use our Services for this period of time only (which may be suspended or revoked in accordance with these Terms).

2.2 You and each Authorised User must be at least 18 years old to use the Platform.

2.3 Variations to these Terms: We may amend these Terms at any time, by providing written notice to you. By continuing to use our Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may cancel your subscription with effect from the date of the change in these Terms by providing written notice to us. If you cancel your subscription, you and your Authorised Users will no longer be able to access our Services (including our Platform) on and from the date of cancellation, and we will close your Authorised Users’ Accounts.

2.4 If you access or download our mobile application from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.

2.5 We may use integrated APIs in our Services including ESRI and Mapbox. You may also integrate further APIs into the Platform. Your use of ESRI, Mapbox or any additional API may be subject to the terms of service of the relevant API provider. You acknowledge and agree that we have no control over and are not liable for the proper function of any third-party API integrated into the Platform.

3. Our Services

3.1 We provide the following services to you:

(a) access to our Platform; and

(b) access to our support services, as further particularised in our Support Policy (available here) (Support Services), (collectively, our Services).

3.2 If you require Support Services, your Authorised Users may request these by getting in touch with us through our Platform.

3.3 Unless we agree otherwise, Support Services cannot be used to support any other products or services, and does not include training, installation of software or hardware, software development or the modification, deletion or recovery of data or any on-site services.

3.4 In consideration of your payment of the Fees, we will provide the Platform in accordance with these Terms and all applicable laws, whether ourselves or through our personnel. We warrant to you that the Platform will be provided using reasonable care and skill.

3.5 We will not be responsible for any other services unless expressly set out in these Terms or on our Platform.

3.6 Additional Services: If you require additional services, we may, in our sole discretion, provide such additional services (to be scoped and priced in a separate contract provided by us).

3.7 Alpha, Preview, Beta or Experimental Services: If we provide you with access to any new, alpha, preview, beta or experimental services (Experimental Services), you acknowledge that because of the developmental nature of such services, you use them at your own risk and we have no obligation to maintain or provide error corrections. Any Experimental Services we provide you with access to are for evaluation purposes only and not for production use, and we may discontinue those services at any time at our sole discretion. We may, in our sole discretion, launch any Experimental Services as full features of our Platform, and may introduce fees in respect of such services. We agree to notify you of any such change by giving you 30 days’ notice in writing via the Platform (Notification). You may choose not to utilise the relevant functionality, in which event you will not be charged. Where you wish to continue using the Experimental Services after our Notification, the relevant fees will form part of the Fees and you must pay these to us in accordance with clause 9.

3.8 Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems you wish to integrate with our Platform), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services they provide, unless we expressly agree otherwise.

4. Artificial Intelligence

4.1 Certain features of the Platform use artificial intelligence (AI) provided by third parties (including OpenAi, Anthropic, and others we may add from time to time). You can enable or disable AI features by opting into or out of specific features, and this can be managed at any time by your Admin Users.

4.2 You acknowledge and agree that:

(a) AI-generated content or outputs may not always be accurate or complete;

(b) we do not guarantee the accuracy, reliability, suitability or completeness of any content or output generated by AI. We recommend that you thoroughly review any summaries or other output generated by AI before publishing such output; and

(c) you are solely responsible for verifying the accuracy, reliability, suitability or completeness of any content or output generated by AI.

4.3 Whilst we use our best commercial endeavours to limit any personal data sharing with our AI providers, we do not guarantee that any personal data input into the Platform will not be shared with our AI providers.

4.4 You are solely responsible for any data you input into the Platform, including any personal data you input into the AI features of the Platform. If you do not want any of your information or personal data to be shared with our AI providers, you should not use the relevant AI features, or you should redact or not submit the relevant information or personal data.

4.5 You agree not to submit any sensitive data via the Platform.

4.6 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability arising from or in connection with, any content or output generated by AI via the Platform.

5. Authorised Users

5.1 You may invite a number of users to the Platform, up to any limits specified in your chosen subscription, who will be permitted to access and use the Platform and join your Organisation (Authorised Users).

5.2 You must ensure that each Authorised User complies with these Terms and our Acceptable Use Policy. You are responsible and liable for the acts or omissions of your Authorised Users, including where your Authorised User breaches these Terms and/or the Acceptable Use Policy.

5.3 Your Authorised Users may register on the Platform and create an account using their email address and password (Account). Your Authorised Users may register for an Account using their Apple, Google or Microsoft account (Single Sign-On Account). If your Authorised Users sign in to their Account using a Single Sign-On Account, they authorise us to access information from their Single Sign-On Account including your name and contact information.

5.4 Your Authorised Users are responsible for keeping their Account details confidential, and you will be liable for all activity on your Authorised Users’ Accounts, including any purchases made using their Account details. You agree to immediately notify us of any unauthorised use of an Account linked to your Organisation.

5.5 We may suspend your or an Authorised User’s access to our Services where we reasonably believe there has been any unauthorised access or use of the Services (such as unauthorised sharing of login details for our Platform). If we suspend your access to the Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate your Account and your access to our Services will end.

5.6 Your Authorised Users may delete their Account at any time via the Platform without affecting your Organisation or any other Authorised User. An Admin User may also request the deletion of any Authorised Users via the Platform.

5.7 You may decide which of the features of the Platform each Authorised User will have access to via your Account. Each Authorised User which is given access to a particular feature will be considered to have a User Seat within the Platform.

5.8 You may designate certain Authorised Users as Admin Users within the Platform. These Admin Users will have the ability to add or remove Authorised Users, change Authorised User permissions, and otherwise manage Accounts within your Organisation.

6. Organisations

6.1 Admin Users may create one or more Organisations within the Platform which your Authorised Users may join.

6.2 Each Organisation will require a separate subscription, and may have separate Fees payable.

6.3 You are responsible for all activity occurring within your Organisation, and for payment of any Fees associated with any Organisations established by your Authorised Users.

6.4 You and your Admin Users are solely responsible for inviting or removing your Authorised Users from any Organisations which you control.

6.5 You represent and warrant that your Admin Users are authorised to act on your behalf and create Organisations, and to bind you to any Fees that may be payable for additional Organisations.

7. Changes to the Services requested by you:

7.1 If you wish to change the Services (for example, by upgrading to a different tier of the Services), you must provide notice to us through your Account that you wish to vary the Services at least 5 Business Days before the next Payment Date. If you vary the Services and the Fees increase, we agree to provide you with access to the additional Services features immediately, and the increased Fees will apply on the next Payment Date.

7.2 Where you downgrade your tier of Services (for example from Pro+ to Pro), all of Your Data and Output Data and any profile settings attached to your Account will save in your Account, however will only be accessible where your tier of the Services grant you access to the relevant feature.

8. Minimum Term and Fees

8.1 The Services may begin with a free version that has access to some Platform features. You acknowledge and agree that the free version of the Platform may not grant you access to all functionality within the Platform, and certain features may only be activated once you have any applicable Fees.

8.2 The paid Services may begin with a free trial (Free Trial). The Free Trial will last for the period specified on the Platform (if applicable). We determine Free Trial eligibility in our sole discretion and we may limit eligibility to prevent Free Trial abuse. We reserve the right to revoke the Free Trial and suspend your Account at any time.

8.3 If you do not pay the fees for the Services you have chosen (Fees) at the end of the Free Trial, you and your Authorised Users’ access to the Platform will finish at the end of the Free Trial. The date you make payment (Payment Date), the Services will start and the Free Trial will end.

8.4 Unless the Services are suspended or terminated in accordance with these Terms, your access to the Services will roll over on an ongoing monthly or annual basis, and you will be charged the Fees on an ongoing monthly or annual basis from the Payment Date (as set out on the Platform). Without limiting your rights at law you can cancel the Services at any time in accordance with the “Cancellation” clause of these Terms (clause 16.1) and the cancellation will take effect from the next Payment Date falling after the 14 day notice period has ended.

8.5 You will be billed based on the number of active User Seats within your Organisation at any time, as set out on the Platform. Where you choose a monthly subscription, the Fees for the upcoming month will be updated to reflect the highest number of active User Seats during the previous month. Where you choose an annual subscription, you prepay for a set number of active User Seats (Purchased Seats). If your actual number of active User Seats exceeds the Purchased Seats, we will invoice you an overage charge for any difference between the active User Seats and the Purchased Seats. You must pay the amount set out in our invoice in advance for the upcoming month.

8.6 The payment methods we offer for the Fees are set out on the Platform. We may invoice you manually, or we may require you to provide us (or our payments processor) with your debit or credit card information, so that we may process your payment through our payment processor.

8.7 You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.

8.8 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise). We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

8.9 To the extent permitted by law, the Fees are non-refundable and non-cancellable once paid. For the abundance of clarity, you will not be entitled to a refund of any portion of the Fees where you do not use all of your Purchased Seats during your annual subscription.

8.10 We may need to change the Fees from time to time. If we change the Fees, we will provide you with 30 days’ notice of the change. After 30 days, we will apply the updated Fee to the Services. If the updated Fee is not acceptable to you, you may cancel the Services in accordance with the ‘Cancellation’ clause.

8.11 If any payment has not been made in accordance with this clause 8, we may (at our absolute discretion):

(a) after a period of 5 Business Days, cease providing the Services, remove your access to your Account, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including reasonable legal fees, debt collector fees and mercantile agent fees); and/or

(b) charge interest at a rate equal to 4% above the Bank of England’s base rate, from time to time, but at 4% a year for any period when that base rate is below 0%, per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with this clause 8.

8.12 Taxes: You are responsible for paying any levies or taxes associated with your use of our Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).

9. Platform Licence

9.1 While you have an active Organisation on the Platform, we grant you (and each Authorised User) a right to use our Platform (which may be suspended or revoked in accordance with these Terms). This right cannot be passed on or transferred to any other person, except as otherwise set out in these Terms.

9.2 You agree to use the Platform in accordance with our Acceptable Use Policy, and you acknowledge and agree that the Acceptable Use Policy forms a part of this Agreement.

9.3 You (and your Authorised Users) must not:

(a) access or use our Platform in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;

(b) interfere with or interrupt the supply of our Platform, or any other person’s access to or use of our Platform;

(d) use any unauthorised or modified version of our Platform, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to our Platform;

(e) attempt to access any data or log into any server or account that you are not expressly authorised to access;

(f) use our Platform in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;

(g) circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or

(h) access or use our Platform to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

10. Availability, Disruption and Downtime

10.1 We will use our best commercial endeavours to make the Platform available in accordance with our Service Level Agreement (available here). The remedy set out in the Service Level Agreement will be your sole and exclusive remedy arising from our failure to meet any targets set out in the Service Level Agreement.

10.2 From time to time, we may perform such reasonable scheduled and emergency maintenance and updates in relation to the Platform in order to continue to supply the Platform to you and our other customers (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the Platform, may need to be suspended for a period of time in order for us to perform the Scheduled or Emergency Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the Platform as a result of any Scheduled or Emergency Maintenance.

10.3 Our Services (including our Platform) may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.

10.4 We will try to provide you with reasonable notice, where possible, of any disruptions to your access to our Services. Where the Scheduled or Emergency Maintenance relates to scheduled downtime, we agree to provide you with at least 24 hours’ notice where possible. We agree to limit any scheduled maintenance to a maximum of 8 hours per calendar month.

11. Intellectual Property and Data

11.1 You acknowledge and agree that any Intellectual Property or content (including copyright, patents and trademarks) available on the Platform, the Platform itself (including how it looks and functions), any algorithms or machine learning models used on the Platform, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property (Our Intellectual Property) will at all times vest, or remain vested, in us.

11.2 We authorise you to use Our Intellectual Property solely for your limited commercial use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party. Use must be limited to Authorised Users on devices that are controlled or approved by you.

11.3 You must not, without our prior written consent:

(a) copy, 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; or

(c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.

11.4 Subject to the conditions below, you and your Authorised Users may share any reports generated via the Platform, including by exporting Your Data or the Output Data (as those terms are defined below), generating shareable links via the Platform, creating publishable versions of Your Data or the Output Data, or by using any of the other features we may make available on the Platform from time to time (Published Reports). When sharing any Published Reports, you (and your Authorised Users):

(a) must not remove any identifying marks, including any of our trademarks or Our Intellectual Property contained within the Published Reports;

(b) acknowledge and agree that where the Published Reports are generated via shareable links generated via the Platform, the information within these Published Reports can be accessed by anyone with the shareable link; and

(c) acknowledge and agree that you are solely responsible for your use of the Published Reports, including for ensuring that the confidentiality of any Published Reports is maintained and that the Published Reports (including any shareable links generated via the Platform) are only shared with their intended audiences.

Your Data

11.5 You own all data, information, personal data, or content you and your Authorised Users upload into the Platform (Your Data), as well as any data or information output from the Platform using Your Data as input (Output Data). Note that Output Data does not include the Analytics (as described below).

11.6 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data and the Output Data to:

(a) communicate with you;

(b) supply the Platform to you and otherwise perform our obligations under these Terms;

(d) enhance and otherwise modify the Platform;

(e) perform Analytics;

(f) develop other services, provided we de-identify Your Data; and

(g) as reasonably required to perform our obligations under these Terms.

11.7 You agree that you are solely responsible for all of Your Data that you and your Authorised Users make available on or through the Platform. You represent and warrant that:

(a) you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and

(b) neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

11.8 You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own business purposes, provided that the Analytics do not contain any identifying information.

11.9 We do not endorse or approve, and are not responsible for, any of Your Data.

11.10 You are responsible for (meaning we are not liable for) the integrity of Your Data on your systems, networks or any device controlled by you.

11.11 You acknowledge and agree that the Platform and the integrity and accuracy of the Output Data is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Platform.

11.12 This clause will survive the termination or expiry of these Terms.

12. Your Warranties

12.1 You represent, warrant and agree that:

(a) you and your Authorised Users will not use our Platform, including Our Intellectual Property, in any way that competes with our business;

(b) there are no legal restrictions preventing you from entering into these Terms;

(c) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;

(d) you are responsible for ensuring your Systems and data are appropriately backed up and up to date before we perform any Services that may affect them;

(e) you are solely responsible for notifying the relevant parties (including your Authorised Users) of any planned outages or downtime necessary for the performance of the Services; and

(f) you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;

(g) any of your Admin Users have authority to bind you to any terms or Fees; and

(h) you must immediately notify us if any of your Admin Users no longer have authority to bind you.

13. Limitations on and Exclusions to our Liability

13.1 Nothing in these Terms limits any Liability which cannot legally be limited, including Liability for:

(a) death or personal injury caused by negligence; and

(b) fraud or fraudulent misrepresentation.

13.2 To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against any Liability arising from or in connection with:

(a) any Third Party Products or Services, or any unavailability of the Platform due to a failure of the Third Party Products or Services;

(b) any unauthorised access to or use of your Published Reports or any data contained within them;

(d) Your Data;

(e) Any content generated by AI via the Platform; and

(f) any results obtained from, or recommendations made by, the Services.

13.3 Subject to clause 13.1 (liability which cannot legally be limited), but despite anything to the contrary, to the maximum extent permitted by law:

(a) you agree to indemnify us for any Liability we incur due to your breach of the Platform Licence clause (clause 9) and the Intellectual Property clause (clause 13) of these Terms;

(b) neither Party will be liable for any Consequential Loss;

(c) a party’s liability for any liability under these Terms will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party, including any failure by that other party to mitigate its loss; and

(d) our aggregate liability for any liability arising from or in connection with these Terms will be limited to (i) the total subscription Fees paid or payable for the Services during the 12 months immediately preceding the date on which the claim arose or (ii) in the event that no subscription Fees are paid or payable in respect of such period, our total aggregate liability will be limited to £100.

13.4 We have given commitments as to the compliance of the Platform with these Terms and applicable Laws in clause 3.5. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the maximum extent permitted by law, excluded from these Terms.

13.5 This clause will survive the termination or expiry of these Terms.

14. Termination

14.1 Cancellation: You or your Admin Users may request to cancel the Services at any time by providing us a minimum of 14 days written notice via the Platform. Your cancellation will take effect from the next Payment Date falling after the 14 day notice period has ended.

14.2 We may terminate these Terms (meaning you will lose access to our Services, including access to your Account) if:

(a) you do not pay the Fees as they fall due;

(b) you or your Authorised Users breach these Terms and do not remedy that breach within 14 days of us notifying you of that breach;

(d) you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors’ schemes of arrangement).

14.3 Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach.

14.4 Upon expiry or termination of the Services, we will retain Your Data (including copies) as required by law or regulatory requirements (and where we have entered into a data processing agreement with you, in accordance with the data processing agreement).

14.5 Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.

14.6 Termination of the Services will not affect any rights or liabilities that a Party has accrued under these Terms.

14.7 This clause will survive the termination or expiry of these Terms.

15. Notice Regarding Apple

15.1 To the extent that you or your Authorised Users are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.

15.2 Apple has no obligation to furnish you or your Authorised Users with any maintenance and support services with respect to our Platform.

15.3 If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you (where applicable). To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.

15.4 Apple is not responsible for addressing any claims by you or any third party (including your Authorised Users) relating to our mobile application or your use of our mobile application, including but not limited to: (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

15.5 Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.

15.6 You agree to comply with any applicable third-party terms when using our mobile application.

15.7 Apple and Apple subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

15.8 You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

16. General

16.1 Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

16.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

16.3 Contracts (Rights of Third Parties) Act 1999: Notwithstanding any other provision of these Terms, nothing in these Terms confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.

16.4 Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

If the Dispute is not resolved at that initial meeting:

(a) where you are resident or incorporated in England and Wales, refer the matter to mediation, administered by The Centre for Effective Dispute Resolution; or

(b) where you are not resident or incorporated in England and Wales, refer the matter to arbitration administered by the London Court of International Arbitration (LCIA), with such arbitration to be conducted in London, before one arbitrator, in English and in accordance with the LCIA Arbitration Rules.

16.5 Force Majeure: To the maximum extent permitted by law, we shall have no Liability for any event or circumstance outside of our reasonable control.

16.6 Marketing: You agree that we may send you electronic communications about our products and services. You may opt-out at any time by using the unsubscribe function in our electronic communications

16.7 Governing law: These Terms are governed by the laws of England and Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in England and Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Platform may be accessed in the UK and overseas. We make no representation that the Platform complies with the laws (including intellectual property laws) of any country outside of the UK. If you access the Platform from outside the UK, you do so at your own risk and are responsible for complying with the laws in the place you access the Platform. The United Nations Convention of Contracts for the International Sale of Goods is expressly excluded from these Terms.

16.8 Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and 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 by email.

16.9 Publicity: You agree that we may advertise or publicise the fact you are a customer of ours, for example on our website or in our promotional material, and you grant us a right to display and use your logo and branding solely for that purpose. We agree to seek your prior written consent before publishing any specific project details.

16.10 Privacy: All personal data you and your Authorised Users provide to us will be treated in accordance with Applicable Data Protection Law and in accordance with our Privacy Policy, available here. You agree to comply with all Applicable Data Protection Laws. To the extent that we act as the Processor of any Personal Data of which you are the Controller (as these terms are defined in the Data Protection Act 2018), the Parties each agree to comply with the terms of our Data Processing Agreement, which is available on our website here and forms part of these Terms.

16.11 Severance: If a provision of these Terms 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 these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

16.12 Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.

16.13 Entire agreement: These Terms contain the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. You acknowledge and agree that these Terms will take precedence over any terms and conditions you subsequently provide to us in respect of the Platform, including any terms and conditions contained within a purchase order provided by you to us.

17. Definitions

Acceptable Use Policy means our acceptable use policy, set out here.

Account has the meaning given in clause 5.3.

Admin Users means your Authorised Users who are granted administrative rights, as set out in the Platform.

AI has the meaning given in clause 4.1.

Applicable Data Protection Law means the laws and regulations applicable to the processing of Personal Data by the Parties in connection with the Terms, including the Data Protection Act 2018 and Privacy Act 1988 (Cth).

Authorised Users has the meaning given in clause 5.1.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Experimental Services has the meaning given in clause 3.7.

Fees has the meaning given in clause 8.3.

Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, business names, get-up, goodwill, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application for registration of, and any improvements, enhancements or modifications of, the foregoing, and any right to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future, including in respect of the foregoing.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), misrepresentation, restitution, 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 these Terms or otherwise.

Organisation means an environment within the Platform where Authorised Users may manage construction projects, including to submit, post or modify Your Data.

Our Intellectual Property has the meaning given in clause 11.1.

Output Data has the meaning given in clause 11.5.

Payment Date has the meaning given in clause 8.3.

Platform has the meaning given at the beginning of these Terms.

Published Reports has the meaning given in clause 11.4.

Purchased Seats has the meaning given in clause 8.5.

Scheduled or Emergency Maintenance has the meaning given in clause 10.2.

Services has the meaning given in clause 3.1.

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

Your Data has the meaning given in clause 11.5.

ATTACHMENT 1 – AUSTRALIAN ADDENDUM

Where you are contracting with Aphex Australia Pty Ltd (ABN 13 628 119 648), the following provisions will apply in addition to the above Terms:

Definitions

1. Interest on late payments: Clause 8.11(b) is omitted and replaced with: “charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly”.

2. Consumer Law Rights:

2.1 In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms.

2.2 Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.

2.3 If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). If our Platform is not ordinarily used for personal, household or domestic use, our liability for a breach of your Consumer Law Rights is limited to either resupplying our Services, or paying the cost of having our Services resupplied.

3. Liability:

3.1 Clause 13 is omitted and replaced with the following:

“To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:

(a) your computing environment (for example, your hardware, software, information technology and telecommunications services and systems); or

(b) any use of our Services by a person or entity other than you or your Authorised Users.

Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:

(a) neither we or you are liable for any Consequential Loss;

(b) a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss;

(c) (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and

(d) our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to the amount of any Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates, or if you do not have a subscription, to AU$100.“

4. Disputes:

4.1 Clause 16.4 is omitted and replaced with the following:

17.1 “Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

17.2 If the Dispute is not resolved at that initial meeting:

(a) where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation; or

(b) where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Brisbane, Queensland, Queensland, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.”

5. Governing law:

Clause 16.7 is omitted and replaced with the following:

“These Terms are governed by the laws of Queensland, and any matter relating to these Terms is to be determined exclusively by the courts in Queensland and any courts entitled to hear appeals from those courts.”

Definitions

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of our Services (including our Platform) will not constitute “Consequential Loss”.

Last updated 6 days ago

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