Terms of Service

Parties

1. MasterPlan Construction Consulting Pty Ltd (ABN 63 686 164 036), having its registered office in Melbourne, Victoria, Australia (the “Provider”)
2. The registered account holder (the “Customer”)

1. Definitions

In this Agreement:

“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts.

“Agreement” means these Terms of Service including any schedules and any amendments from time to time.

“Business Day” means any weekday other than a bank or public holiday in Victoria, Australia.

“Business Hours” means the hours of 09:00 to 17:00 AEST on a Business Day.

“Charges” means the subscription fees applicable to the Customer's selected plan as published on the MasterPlan Defects pricing page from time to time.

“Customer Confidential Information” means any information disclosed by the Customer to the Provider that is marked as confidential or should reasonably be understood to be confidential.

“Customer Data” means all data, works and materials uploaded to or stored on the Platform by the Customer, including defect records, photographs, floor plans, project information, and reports generated through use of the Hosted Services.

“Customer Personal Data” means any Personal Data processed by the Provider on behalf of the Customer in relation to this Agreement.

“Data Protection Laws” means all applicable laws relating to the processing of Personal Data in Australia, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

“Force Majeure Event” means an event outside the reasonable control of the affected party, including failures of the internet or public telecommunications networks, hacker attacks, denial of service attacks, virus or malicious software attacks, power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, and wars.

“Hosted Services” means the MasterPlan Defects construction defect and incomplete works tracking platform made available by the Provider to the Customer as a service via the internet.

“Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect caused by: (a) any act or omission of the Customer or any authorised user; (b) use of the Platform contrary to the Documentation; (c) failure by the Customer to perform its obligations under this Agreement; or (d) incompatibility between the Platform and any system not specified as compatible.

“Intellectual Property Rights” means all intellectual property rights including copyright, trade marks, patents, design rights, database rights, confidential information, and trade secrets, whether registered or unregistered.

“Maintenance Services” means general maintenance of the Platform and the application of updates and upgrades.

“Mobile App” means the MasterPlan Defects progressive web application (PWA) accessible via a supported mobile browser on iOS and Android devices, including iPhones, iPads, and Android phones and tablets.

“Personal Data” has the meaning given to it in the Data Protection Laws.

“Platform” means the software, infrastructure, databases, and systems used by the Provider to deliver the Hosted Services.

“Services” means all services the Provider provides to the Customer under this Agreement.

“Support Services” means support in relation to the use of the Hosted Services and the identification and resolution of errors, but does not include training.

“Term” means the period commencing on account creation and continuing until termination in accordance with Clause 18.

“Trial Period” means the free 30-day trial period commencing on account creation.

“Update” means a hotfix, patch or minor version update to the Platform software.

“Upgrade” means a major version upgrade of the Platform software.

2. Term

2.1 This Agreement commences when the Customer creates an account on the Platform.

2.2 This Agreement continues indefinitely subject to termination in accordance with Clause 18.

3. Hosted Services

3.1 The Provider will create an Account for the Customer upon registration and provide login credentials promptly following account creation.

3.2 The Provider grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services during the Term via a supported web browser or the Mobile App.

3.3 The licence is subject to the following limitations:

1. The Hosted Services may only be used by officers, employees, agents and subcontractors of the Customer;
2. The number of active projects and team members is limited to those specified in the Customer's selected subscription plan;
3. The Customer may change registered users subject to their plan limits.

3.4 The following are expressly prohibited:

1. Sub-licensing the right to access and use the Hosted Services;
2. Permitting any unauthorised person to access the Hosted Services;
3. Using the Hosted Services to provide services to third parties without the Provider's written consent (except as permitted under white-label provisions);
4. Republishing or redistributing any content or material from the Hosted Services;
5. Making any alteration to the underlying Platform;
6. Conducting load testing or penetration testing without prior written consent.

3.5 The Customer must implement reasonable security measures to prevent unauthorised access to their Account.

3.6 The Provider will use reasonable endeavours to maintain availability of the Hosted Services but does not guarantee 100% uptime.

3.7 Downtime caused by any of the following shall not constitute a breach:

1. A Force Majeure Event;
2. Fault or failure of the internet or public telecommunications networks;
3. Fault or failure of the Customer's systems;
4. Any breach by the Customer of this Agreement; or
5. Scheduled maintenance.

3.8 The Customer must comply with the Acceptable Use Policy in Clause 4 and ensure all authorised users do the same.

3.9 The Provider may suspend access to the Hosted Services if any amount due remains unpaid after 30 days' written notice of the Provider's intention to suspend.

3.10 For the avoidance of doubt, the Customer has no right to access the source code of the Platform.

4. Acceptable Use Policy

4.1 The Customer must not use the Hosted Services:

1. In any way that causes or may cause damage to the Platform or impairment of availability or accessibility;
2. In any way that is unlawful, illegal, fraudulent, deceptive or harmful;
3. To upload, transmit or store content that is offensive, defamatory, obscene, or that infringes third-party intellectual property rights;
4. To transmit unsolicited commercial communications;
5. To conduct any systematic or automated data collection activities without consent;
6. To circumvent or attempt to circumvent any security measures of the Platform.

4.2 The Customer warrants that all content uploaded to the Platform will not infringe the rights of any third party.

5. Trial Period

5.1 New Customers receive a free 30-day Trial Period with full access to all features of the Hosted Services. No credit card is required to commence a Trial Period.

5.2 Following the Trial Period, a paid subscription is required to continue accessing the Hosted Services. The Provider will notify the Customer prior to the expiry of the Trial Period.

5.3 All Customer Data created during the Trial Period is retained if the Customer subscribes following the Trial Period.

6. Maintenance Services

6.1 The Provider shall provide Maintenance Services during the Term.

6.2 The Provider shall, where practicable, give at least 5 Business Days' prior written notice of scheduled maintenance likely to affect availability.

6.3 The Provider shall give at least 5 Business Days' prior written notice of the application of an Upgrade to the Platform.

6.4 The Provider shall provide Maintenance Services with reasonable skill and care.

7. Support Services

7.1 The Provider shall provide Support Services during the Term.

7.2 The Customer may request Support Services via the support form on the Platform or by emailing support@masterplandefects.com.au.

7.3 The Provider aims to respond to all support requests within one Business Day.

7.4 The Provider shall provide Support Services with reasonable skill and care.

7.5 The Provider may suspend Support Services if amounts due remain unpaid after 30 days' written notice.

8. White-Label Features

8.1 Customers on eligible plans may apply their own branding (logo, colours, company name) to the Platform.

8.2 This white-label licence permits the Customer to present the Platform to their clients under the Customer's own brand.

8.3 The Customer must not represent that they have developed or own the underlying Platform technology.

8.4 The white-label licence is limited to the Customer's own business use and does not permit the Customer to resell or sublicense access to the Platform to third parties without the Provider's prior written consent.

9. Customer Data

9.1 The Customer retains full ownership of all Customer Data.

9.2 The Customer grants the Provider a non-exclusive licence to copy, store, process and use Customer Data solely to the extent necessary to provide the Hosted Services.

9.3 The Customer warrants that Customer Data will not infringe the Intellectual Property Rights of any person.

9.4 The Provider shall create backup copies of Customer Data daily and retain the 8 most recent backups (approximately 8 days of rolling history).

9.5 Upon termination of this Agreement, Customer Data will be retained for 30 days following termination, after which it will be permanently deleted. The Customer may request a data export prior to deletion by contacting support@masterplandefects.com.au.

10. Mobile App

10.1 The MasterPlan Defects Mobile App is a progressive web application (PWA) accessible via a supported mobile browser.

10.2 The Mobile App is compatible with the devices specified in Schedule 1, including iPhones, iPads, Android phones, and Android tablets.

10.3 The use of the Mobile App is governed by the same terms and conditions as the Hosted Services under this Agreement.

11. Intellectual Property

11.1 Nothing in this Agreement assigns or transfers any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

11.2 The Platform, including its code, design, features, and branding, is and remains the exclusive property of MasterPlan Construction Consulting Pty Ltd.

12. Charges and Payment

12.1 The Customer shall pay Charges in accordance with their selected subscription plan.

12.2 Subscription fees are charged monthly in advance.

12.3 The Provider may vary Charges by giving the Customer not less than 30 days' written notice of any price change.

12.4 If the Customer does not pay amounts due, the Provider may:

1. Suspend access to the Hosted Services after 30 days' written notice; and
2. Delete all Customer Data if payment is not made within 90 days of suspension.

12.5 The Provider does not offer refunds for partial months. If a Customer believes they have been incorrectly charged, they must notify the Provider within 30 days.

13. Confidentiality

13.1 The Provider must:

1. Keep Customer Confidential Information strictly confidential;
2. Not disclose Customer Confidential Information to any person without the Customer's prior written consent;
3. Use the same degree of care to protect Customer Confidential Information as it uses to protect its own confidential information, being at least a reasonable degree of care.

13.2 The Provider may disclose Customer Confidential Information to officers, employees, and subcontractors who require access to perform their obligations under this Agreement and are bound by confidentiality obligations.

13.3 Confidentiality obligations do not apply to information that:

1. Was known to the Provider before disclosure and not subject to confidentiality;
2. Is or becomes publicly known through no act of the Provider; or
3. Is required to be disclosed by law or court order.

13.4 Confidentiality obligations survive termination of this Agreement indefinitely.

14. Data Protection

14.1 Each party shall comply with Data Protection Laws with respect to Customer Personal Data.

14.2 The Customer warrants that it has the legal right to disclose all Personal Data it provides to the Provider.

14.3 The Provider shall only process Customer Personal Data as necessary to provide the Services and in accordance with the Provider's Privacy Policy.

14.4 The Provider shall ensure that persons authorised to process Customer Personal Data are bound by appropriate confidentiality obligations.

14.5 The Provider and Customer shall each implement appropriate technical and organisational measures to ensure appropriate security for Customer Personal Data.

14.6 The Provider shall report any Personal Data breach relating to Customer Personal Data to the Customer within 72 hours of becoming aware of the breach.

14.7 Upon termination, the Provider shall delete or return Customer Personal Data within 30 days, except where retention is required by law.

15. Warranties

15.1 The Provider warrants that:

1. It has the legal right and authority to enter into this Agreement;
2. It will comply with all applicable legal and regulatory requirements;
3. The Platform will be free from viruses and malicious software;
4. The Platform will incorporate security features reflecting good industry practice;
5. The Hosted Services will not breach any laws applicable under Australian law.

15.2 The Customer warrants that:

1. It has the legal right and authority to enter into this Agreement;
2. Its use of the Hosted Services will comply with all applicable laws;
3. All Customer Data uploaded to the Platform is owned by or licensed to the Customer.

15.3 The Customer acknowledges that:

1. Complex software is never entirely free from defects, errors and bugs;
2. Complex software is never entirely free from security vulnerabilities;
3. The Provider does not provide legal, financial, or taxation advice.

16. Limitations and Exclusions of Liability

16.1 Nothing in this Agreement will:

1. Limit or exclude any liability for death or personal injury resulting from the Provider's negligence;
2. Limit or exclude any liability for fraud or fraudulent misrepresentation by the Provider;
3. Limit any liabilities in any way that is not permitted under applicable Australian law; or
4. Exclude any liabilities that may not be excluded under applicable Australian law, including any non-excludable guarantees under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:

1. Are subject to Clause 16.1;
2. Govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence), and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement; and
3. Apply even if the Provider has been advised of the possibility of such losses or damages.

16.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event, including but not limited to failures of third-party hosting infrastructure, internet outages, or cloud service provider disruptions.

16.4 The Provider shall not be liable to the Customer in respect of any:

1. Loss of profits or anticipated profits;
2. Loss of revenue or income;
3. Loss of anticipated savings;
4. Loss of business, goodwill, or reputation;
5. Loss of contracts or commercial opportunities;
6. Loss of use or loss of production;
7. Loss or corruption of data, databases, or software, provided that this sub-clause (g) shall not protect the Provider where the Provider has failed to comply with its backup obligations under Clause 9.4 of this Agreement;
8. Wasted management or staff time;
9. Any indirect, special, or consequential loss or damage of any kind, howsoever arising, whether or not such loss was foreseeable or the Provider had been advised of the possibility of such loss.

16.5 The Customer expressly acknowledges and agrees that:

1. The Platform is a tool to assist with construction defect and incomplete works tracking. It does not replace the Customer's professional judgment, site inspections, contractual obligations, or duty of care to any party;
2. The Provider makes no warranty that use of the Platform will result in the identification of all defects, the prevention of construction disputes, the satisfaction of any contractual defect liability obligations, or any particular commercial outcome;
3. Any reports, data exports, or documents generated by the Platform are produced based on information entered by the Customer. The Provider is not responsible for the accuracy, completeness, or fitness for purpose of any such output;
4. The Customer is solely responsible for verifying that any reports or documents generated by the Platform meet the requirements of any contract, regulation, or legal obligation to which the Customer is subject;
5. The Provider is not liable for any loss, damage, claim, or liability arising from the Customer's reliance on Platform-generated reports, data, or outputs in any legal, contractual, or regulatory context.

16.6 The Provider shall not be liable for any loss or damage arising from:

1. Unauthorised access to the Customer's account resulting from the Customer's failure to maintain the security of their login credentials;
2. The Customer's failure to maintain adequate independent backups of their data outside of the Platform;
3. Any interruption, suspension, or termination of third-party services upon which the Platform relies, including hosting, storage, or email delivery services;
4. Any incompatibility between the Platform and the Customer's devices, operating systems, or network infrastructure;
5. Any loss arising from the Customer's use of the Platform in a manner not in accordance with this Agreement or the Documentation.

16.7 To the maximum extent permitted by applicable Australian law, the Provider's total aggregate liability to the Customer under or in connection with this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Charges paid by the Customer to the Provider in the three (3) calendar months immediately preceding the event giving rise to the claim.

16.8 Where Australian Consumer Law applies and the Provider is unable to exclude liability entirely, the Provider's liability is limited, at the Provider's option, to:

1. In the case of services: the resupply of the services or the payment of the cost of having the services resupplied; and
2. In the case of goods: the replacement of the goods, the supply of equivalent goods, the repair of the goods, or the payment of the cost of replacing or repairing the goods.

16.9 The Customer agrees that the limitations and exclusions of liability in this Clause 16 are reasonable having regard to all the circumstances, including the nature of the Platform as a software-as-a-service tool, the subscription fees charged, and the allocation of risk between the parties.

16.10 Each sub-clause of this Clause 16 shall be construed as a separate and independent limitation or exclusion of liability. If any sub-clause is found to be unenforceable, the remaining sub-clauses shall continue to have full force and effect.

17. Force Majeure

17.1 If a Force Majeure Event causes a failure or delay in performing any obligation under this Agreement (other than a payment obligation), that obligation is suspended for the duration of the Force Majeure Event.

17.2 A party affected by a Force Majeure Event must promptly notify the other party and provide an estimate of the duration of the failure or delay.

17.3 A party affected by a Force Majeure Event must take reasonable steps to mitigate its effects.

18. Termination

18.1 Either party may terminate this Agreement by giving 30 days' written notice.

18.2 Either party may terminate immediately upon written notice if the other party commits a material breach of this Agreement.

18.3 Either party may terminate immediately if the other party:

1. Is dissolved or ceases to conduct all or substantially all of its business;
2. Is or becomes insolvent or unable to pay its debts as they fall due;
3. Has an administrator, receiver or liquidator appointed over its assets; or
4. Passes a resolution or receives an order for winding up.

18.4 The Provider may suspend or terminate the Account if the Customer breaches the Acceptable Use Policy in Clause 4.

19. Effects of Termination

19.1 Upon termination, all provisions of this Agreement cease to have effect except those which by their nature survive termination (including Clauses 11, 13, 14, 15, 16, and 19).

19.2 Termination does not affect the accrued rights of either party.

19.3 Within 30 days of termination:

1. The Customer must pay any outstanding Charges; and
2. The Provider must refund any Charges paid for Services not yet provided.

19.4 Customer Data will be retained for 30 days following termination, after which it will be permanently deleted. The Customer may request a data export during this period by contacting support@masterplandefects.com.au.

20. Notices

20.1 Notices under this Agreement must be given by email or recorded post.

20.2 The Provider's contact details for notices:

MasterPlan Construction Consulting Pty Ltd
Melbourne, Victoria, Australia
Email: support@masterplandefects.com.au

20.3 Notice by email is deemed received on the next Business Day following transmission.

21. Subcontracting

21.1 The Provider may subcontract any of its obligations under this Agreement.

21.2 The Provider remains responsible to the Customer for the performance of any subcontracted obligations.

21.3 The Customer acknowledges that the Provider uses third-party hosting and infrastructure services including Railway (railway.app) and Cloudinary.

22. General

22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

22.2 If any provision of this Agreement is determined to be unlawful, invalid or unenforceable, the remaining provisions continue in full force and effect.

22.3 This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements and understandings.

22.4 This Agreement is governed by the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria.

22.5 The Provider may update these Terms from time to time. The Customer will be notified of material changes by email. Continued use of the Platform after the effective date of changes constitutes acceptance of the updated Terms.

Schedule 1 — Hosted Services Specification

Supported Web Browsers: Google Chrome (current and previous major version), Mozilla Firefox (current and previous major version), Microsoft Edge (current and previous major version), Apple Safari (current and previous major version).

Supported Devices: The MasterPlan Defects platform is a responsive web application and progressive web application (PWA) compatible with the following devices:

• iPhone: iOS 13 and greater (compatible with iPhone 6s and newer, including iPhone 11, iPhone 12, iPhone 13, iPhone 14, iPhone 15, iPhone 16 and later)
• iPad: iPadOS 13 and greater (compatible with iPad 6th generation and newer, iPad Air 3rd generation and newer, iPad mini 5th generation and newer, iPad Pro all models)
• Android phones: Android 9.0 (Pie) and greater
• Android tablets: Android 9.0 (Pie) and greater
• Desktop and laptop computers: via any supported web browser above

Hosting: Railway.app. File and image storage: Cloudinary.

Backups: Automated daily backups; the 8 most recent retained (approximately 8 days of rolling history).

Data location: United States-based servers.