1. Agreement
1.1 This Agreement
These Terms and Conditions constitute an agreement (Agreement) between Before You Dig Australia Ltd ABN 91 089 413 650 (BYDA) and any person (you) who uses:
(a) this website (https://www.byda.com.au/);
(b) BYDA’s referral service, being the single point of contact where members of the BYDA referral service can share detailed plans and safety information with individuals or companies planning to dig underground (Referral Service); or
(c) any information obtained from an owner of underground assets (Member/Participant) via the Referral Service, or regarding above-ground assets (Content), together, the Services.
1.2 Term
(a) You accept this Agreement, and this Agreement commences, when you first use the Services.
(b) The Agreement will continue until terminated in accordance with clause 5.
1.3 Varying this Agreement
(a) BYDA may vary the terms of this Agreement from time to time by publishing amended terms on BYDA’s website.
(b) You acknowledge and agree that:
(i) you are responsible for regularly reviewing the terms published on BYDA’s website, and must immediately cease using the Services if you do not agree to any amended terms;
(ii) BYDA may amend the terms of this Agreement without notice to you, provided that doing so does not cause unreasonable detriment to users of the Services generally; and
(iii) while BYDA will use commercially reasonably endeavours to provide 30 days’ notice of any variation(s) to BYDA’s terms where the variation(s) would materially detriment users of the Services generally, it may not be possible for BYDA to provide you with notice of such variations (for example, where BYDA does not have an ongoing relationship with you).
2. Licence
(a) In this Agreement, Intellectual Property Rights means any intellectual property rights subsisting anywhere in the world, whether or not now existing, including rights in relation to copyright (registered or unregistered), inventions (including patents, innovation patents and utility models), confidential information, technical information and know-how, registered and unregistered designs, registered and unregistered trade marks, and circuit layout rights, topography rights and rights in databases.
(b) BYDA grants you a non-exclusive, non-transferable, royalty free, revocable, non-sublicensable (other than per clause 2(c)) licence:
(i) to use the Services (including the Intellectual Property Rights in the Services) during the term of this Agreement; and
(ii) to use any Content (including the Intellectual Property in the Content) on a perpetual basis,
(c) If you are a Member/Participant, you may sublicense the licence granted under clause 2(b) to authorised users who are your employees for your own internal business use only.
(d) Subject to this clause 2, the parties acknowledge and agree that title to and ownership of the Services, including all Intellectual Property Rights in the Services, remains with BYDA. Any rights not expressly granted to you under this Agreement are expressly reserved by BYDA.
(e) To avoid doubt, nothing in this clause 2 grants you the right to commercialise any of the Services (including any Content) without BYDA’s prior written consent.
3. The Services
3.1 Availability of the Services
BYDA will use commercially reasonable efforts to ensure the Services are available 24 hours a day, 7 days per week. However, you acknowledge and agree that, notwithstanding the licence granted to you under this clause 2(b), the Services may become unavailable from time to time where:
(a) BYDA is performing scheduled updates or any modifications to the Services, which may include changes to the Services to maintain them, to add or remove features or functionality, or to redesign them; or
(b) as a result of events beyond BYDA’s reasonable control.
3.2 Acceptable use
(a) You may only use the Services for the purposes for which BYDA intended. BYDA reserves the right to deny you access to the Services for any reason, including for misuse of the Services or if you use the Services to generate income without BYDA’s prior written agreement.
(b) Without limiting clause 3.2(a), you must not, and not permit any person to:
(i) use the Services for any purpose other than in accordance with this Agreement;
(ii) reverse-engineer, decompile, translate or disassemble the Services (except as may be permitted by statute);
(iii) bypass, or attempt to bypass, any security features of the Services, or introduce, upload or transmit any harmful code to the Services. To avoid doubt, harmful code includes any “back door”, “time bomb”, “logic bomb”, “Trojan Horse”, “worm”, “drop dead device”, “DoS attacks”, “DDoS attacks”, “virus” or any other malware, spyware or computer software routine having the effect of permitting unauthorised access to or use of any system, network or software, or disabling, damaging, corrupting, interrupting or erasing, or disrupting or impairing the normal operation of, any part of any system, network or software;
(iv) copy, reproduce, distribute, publish or otherwise use the Services in any manner or for any purpose not expressly authorised by this Agreement;
(v) assign, transfer, sell, lease, license or sub-license the Services to any third party or dispose of, encumber or charge the Services in favour of a third party;
(vi) provide any third party with access to the Services other than as expressly permitted under this Agreement;
(vii) commercialise the Services for profit or otherwise provide the services to third parties as a “bureau service” or on a white label basis;
(viii) challenge or repudiate or take any action to impair, prejudice or diminish the Intellectual Property Rights in the Services;
(ix) make any representations to a third party or the public in regard to the Services or the Intellectual Property Rights in the Services;
(x) remove or interfere with any copyright or trade mark notices contained within the Services;
(xi) demonstrate the Services for the purpose of engaging a person to replicate the functionality or features contained in the Services; or
(xii) modify any documentation, instructions or manuals provided or made available in relation to the Services.
3.3 Performance of the Services
You acknowledge and agree that:
(a) BYDA does not provide any guarantee regarding the accuracy, reliability, timeliness, performance or fitness for purpose of the Services, or that the Services are error-free;
(b) while BYDA will use commercially reasonable endeavours to maintain and keep the Services available and current in accordance with good industry practice, BYDA has no control over information provided via the Referral Service;
(c) BYDA may include links to third party websites or systems on the Services (Third Party Links). These Third Party Links are provided for your convenience only and you acknowledge and agree that the Third Party Links do not form part of the Services and are not under BYDA’s control, nor are the relevant third parties controlled by BYDA. You access those Third Party Links at your own risk. BYDA is not responsible for any loss or damage you may suffer as a result of accessing any Third Party Links; and
(d) if you provide BYDA with any feedback, suggestion or comment regarding the Services, you grant to BYDA a worldwide, irrevocable, perpetual, sub-licensable, transferable, royalty-free licence to use and exploit any such feedback, suggestion or comment for any purpose without any obligation or compensation to you.
4. Suspension
(a) Without limiting BYDA’s rights, BYDA may suspend your access to or use of the Services if any use of the Services by you:
(i) occurs in breach of this Agreement; or
(ii) in BYDA’s reasonable opinion, threatens the security, integrity or availability of the Services.
(b) BYDA will use commercially reasonable efforts to provide you with notice of any such suspension.
5. Termination
5.1 Termination for cause
Either party may terminate this Agreement by written notice to the other party if:
(a) the other party breaches this Agreement and the breach is capable of remedy, but the other party does not remedy that breach within 7 days from the date of receiving written notice by email to do so; or
(b) the other party breaches this Agreement and the breach is not capable of remedy.
5.2 Shutdown of the Services
BYDA does not guarantee that the Services will be available forever. If BYDA decides to cease providing the Services, it may terminate this Agreement by written notice to you. If practical, BYDA will provide you with at least 30 days’ notice that BYDA will cease providing the Services.
5.3 Termination by you
You may terminate this Agreement at any time by ceasing your use of the Services.
5.4 Consequences of termination
On expiry or termination of this Agreement for any reason:
(a) the expiry or termination is without prejudice to any rights or liabilities of the parties accruing as at the date of termination;
(b) you must immediately cease using the Services; and
(c) each party must promptly upon the other party’s written request return or delete all confidential information of the other party in its possession or control (other than Content that you are entitled to continue using as a result of clause 2(b)).
6. Limitation of liability
6.1 Non-Excludable Rights
(a) The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and other similar consumer protection laws and regulations may imply certain rights, consumer guarantees, warranties or remedies relating to the Services which cannot be excluded, restricted, qualified or modified by BYDA (Non-Excludable Rights). Nothing in this Agreement excludes or attempts to exclude your Non-Excludable Rights as a consumer under the ACL.
(b) Without limiting clause 6.1(a), to the maximum extent permitted by law, BYDA specifically excludes any conditions, terms or warranties that may be implied to, or in respect of, the provision of these Services. To the extent that any such condition, term or warranty or liability cannot be excluded, BYDA’s liability for breach of such implied term, condition or warranty is limited to the resupply of the Services provided by BYDA, or the payment of the reasonable cost of having the Services supplied again.
(c) Without limiting clause 6.1(b), if a supply by BYDA under this Agreement is a supply of goods or services to a consumer within the meaning of the ACL, to the extent that the ACL permits BYDA to limit its liability, then BYDA’s liability is limited to:
(i) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(ii) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
6.2 Limitation of liability
(a) To the maximum extent permitted by law:
(i) BYDA, its employees, its members, agents, suppliers, contractors and consultants are not responsible for any actions, liabilities, losses, damages, costs, claims or expenses arising as a result of or in connection with:
(A) the Services (including as a result of your use of the Services);
(B) any Third Party Links; and
(C) any errors, omissions, data loss, file corruptions, interception of transmissions, downloads, computer worms, viruses, hacking or damage to your device caused or contributed to by your use of the Services or reliance on content accessed via the Services; and
(ii) each party’s total aggregate liability in connection with this Agreement to the other party (whether under statute, in contract or in tort, including negligence, or otherwise) for any liability, loss, damage or expense suffered or incurred by the other party is limited to $100.
(b) Without limiting clause 6.2(a) above, you acknowledge and agree that, to the maximum extent permitted by law, BYDA, its employees, its members, agents, suppliers, contractors or consultants are not responsible to any person for:
(i) the currency, accuracy or completeness of any Content, which may include information indicating the general location of its “fields of interests”, being locations where the Member/Participant has underground assets;
(ii) the currency, accuracy or completeness of information received by BYDA from any user of the Services as to proposed excavation activity;
(iii) your failure to avail yourself of the Services, or correctly or accurately interpret information supplied to you by any Member/Participant; and
(iv) any delays in respect of the delivery or supply by BYDA of information sought, as BYDA is reliant on you and/or the Member/Participant to provide such information requested in a timely manner.
6.3 Proportionate liability
A party’s liability under this Agreement will be reduced to the extent that the other party caused or contributed to the relevant liability or the act giving rise to the liability.
6.4 Consequential loss
BYDA will have no liability to you for any special, incidental, consequential, indirect or punitive damages, costs, expenses or losses of any kind, loss of profit (whether direct or indirect), loss of revenue, loss of management time, opportunity costs, failure to realise anticipated savings or financial loss, arising out of or in connection with this Agreement (or any breach of it) or the Services.
6.5 Avoiding or minimising loss
A party which incurs a loss under this Agreement must take reasonable steps to avoid or minimise the loss.
6.5 Avoiding or minimising loss
You expressly acknowledge and agree that BYDA does not review or maintain Content, and that there are owners of underground assets which do not participate in the Referral Service. Therefore you acknowledge and agree that
(a) BYDA cannot, and does not, make any representations or warranties as to the accuracy, reliability or completeness of the Content, or any other information provided in response to an enquiry;
(b) BYDA will only inform the Member/Participant of enquiries via the Referral Service submitted in accordance with this Agreement; and
(c) you use the Services (and rely on any Content) at your own risk.
7. Indemnity
You agree to indemnify BYDA, its employees, its members, agents, suppliers, contractors and consultants against all liabilities, costs, claims, expenses or loss (including without limitation any special, incidental, consequential, indirect or punitive damages, costs, expenses or losses of any kind, loss of profit (whether direct or indirect), loss of revenue, loss of management time, opportunity costs, failure to realise anticipated savings or financial loss) suffered by BYDA, its employees, its members, agents, suppliers, contractors or consultants arising from:
(a) any incorrect or incomplete information provided by you to BYDA or your failure to provide information to BYDA; and
(b) your failure to use or correctly or accurately interpret information supplied to you by the Member/Participant.
8. Privacy
(a) In this Agreement:
(i) Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not, or such other meaning as required by the relevant Privacy Laws; and
(ii) Privacy Laws means, as applicable, the Australian Privacy Act 1988 (Cth), and any other legislation governing the handling of Personal Information in a jurisdiction relevant to BYDA or you (as the case may be).
(b) Where the performance of this Agreement involves the handling of Personal Information, you and BYDA must comply with all applicable Privacy Laws.
(c) Without limiting clause 8(b), you acknowledge and agree that BYDA may collect, use and disclose your Personal Information in accordance with BYDA’s Privacy Policy, as amended from time to time.
9. General
(a) In this Agreement the words “including”, “include” and similar words are not words of limitation.
(b) Neither party may assign this Agreement or any right or obligation under it without the prior written consent of the other.
(c) Any provision of this Agreement that is expressed to survive, or by its nature survives, the termination or expiry of this Agreement will survive the expiry or termination of this Agreement and will continue in effect.
(d) If any clause or part of any clause of this Agreement is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
(e) This Agreement is to be governed and construed in accordance with the laws for the time being in force in Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts and tribunals having jurisdiction in that State.
(f) This Agreement constitutes the entire agreement between BYDA and you in relation to the Services.