These Terms of Service, together with our Privacy Policy, Advertising Terms, Website Terms of Use and any terms and conditions set out in an Invoice or otherwise expressly agreed in writing by ArchiPro and the Customer together constitute the agreement between ArchiPro and the Customer in relation to the Customer’s Membership of ArchiPro’s Online Services (the “Agreement”).
By paying the Membership Fees and/or continuing to use the Online Services, the Customer is deemed to have agreed to the terms and conditions of this Agreement.
Terms updated September 2022
1. DEFINITIONS
1.1. “ACL” means the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time).
1.2. “ArchiPro” means ArchiPro Pty Ltd (ACN 620 829 361), and/or any agents, officers or employees thereof, together with any of its successors or assigns (and “we” or “us” has a corresponding meaning).
1.3. “ArchiPro Website” means www.archipro.com.au or any related websites as may exist from time to time (including those with overseas based top-level domains).
1.4. “Content” means all information and/or material which is provided by the Customer, or on the Customer’s behalf, to ArchiPro (including, for the avoidance of doubt, by direct upload to the Customer’s ArchiPro Profile), and/or which is sourced by ArchiPro from the Customer’s publicly available collateral, advertising, website, social media or other publications and includes, without limitation, images, photos, trademarks, text or other visual elements.
1.5. “Customer” means the person named as the Customer in an Invoice and shall include any person acting on behalf of and with the authority of the Customer, or any of its successors, assigns or administrators (and “you” or “your” has a corresponding meaning).
1.6. “Customer Profile” means a profile created by or on behalf of the Customer which is hosted on and accessible via the ArchiPro Website.
1.7. “Invoice” means an invoice issued by ArchiPro to the Customer which specifies the class of Membership selected by the Customer and the Membership Fees associated with that Membership.
1.8. “Membership” means the subscription to ArchiPro’s Online Services and in respect of which the Customer pays the Membership Fees.
1.9. “Membership Fees” means the fees payable by the Customer in respect of the Customer’s Membership (plus GST) as set out in an Invoice.
1.10. “Online Services” means the architectural website operated and maintained by ArchiPro, on or via the ArchiPro Website, and any related social media and direct marketing services undertaken, or able to be provided by, ArchiPro for and on behalf of the Customer, and includes the Customer Profile.
2. MEMBERSHIP
2.1. ArchiPro shall provide, and the Customer shall have access to, the Online Services and related deliverables (including, to the extent applicable, a Customer Profile).
2.2. The Customer acknowledges and agrees that ArchiPro may, from time to time and for any reason:
(a) change the terms and conditions of this Agreement (including, for the avoidance of doubt, the terms of the Privacy Policy, Advertising Terms and Website Terms of Use); and
(b) change the nature and extent of the Online Services, including adding, removing or discontinuing any feature (whether in whole or part),
in each case upon written notice to the Customer.
2.3. Subject to clause 2.4 below, any changes to this Agreement or the Online Services in accordance with clause 2.2 will be effective immediately upon our giving you notice of such amendments. Your continued use of the Online Services after such amendments constitutes your acceptance of such amendments. Where you do not agree with any of the amendments, you may exercise your right to terminate this Agreement in accordance with clause 4 below.
3. MEMBERSHIP FEES AND PAYMENT
3.1. Unless otherwise specified in the relevant Invoice, payment of the Membership Fee for commencement of Online Services is due upon quote acceptance and is to be paid in accordance with the instructions set out in the relevant Invoice. All Invoice payments are to be made in full, without set-off or deduction.
3.2. The Customer acknowledges that non-payment of the Membership Fees by the due date specified in an Invoice will:
(a) result in a delay in the commencement of creating the Customer Profile until full payment of the Invoice for the Membership Fees is received by ArchiPro;
(b) Continued non-payment of the Membership Fees may result in ArchiPro enforcing debt recovery.
4. TERMINATION
4.1. We may terminate this Agreement and disable your Customer Profile with immediate effect by notice in writing to you at any time where we consider (acting reasonably) that you are in breach of the terms of this Agreement (including, for the avoidance of doubt, the Advertising Terms, Website Terms of Use and any other specific terms expressly agreed in writing between ArchiPro and the Customer).
4.2. You may terminate this Agreement and request your Customer Profile be disabled from the ArchiPro platform at any time by giving ArchiPro notice in writing of such termination.
4.3. Following termination of your Membership in accordance with clause 4.1 or clause 4.2 (as the case may be), you will cease to have access to the Online Services, and your Customer Profile and, to the extent it is possible to do so, any other Content will be removed from the Online Services.
4.4. Termination of this Agreement and your Membership will not affect clauses 6 to 15 (inclusive) of this Agreement, which are intended to survive termination.
5. CUSTOMER PROFILE
5.1. For the establishment and maintenance of your Customer Profile, you may choose:
(a) for ArchiPro to have primary responsibility for the creation of that Customer Profile, in which case the terms of clause 5.2 shall apply; or
(b) to have primary responsibility for the creation of your own Customer Profile, in which case the terms of clause 5.3 shall apply to the creation of that Customer Profile, and
in either case, you warrant and represent to ArchiPro that you are a principal or employee of the Customer who is authorised to create, or approve the creation of, the Customer Profile for and on behalf of the relevant Customer.
5.2. Where the Customer has requested that ArchiPro create the Customer Profile in accordance with clause 5.1(a):
(a) we will request Content for your Customer Profile directly from you or, where your Content is not readily available to be shared with us in a format which we are able to use, we will, to the extent possible, and with your consent, source Content for your Customer Profile from any business website currently operated by you;
(b) once we are satisfied that your Customer Profile is complete and is in a state which we consider is ready to ‘go live’ on the ArchiPro Website, we will send you a website link containing the draft profile for you to review. At this stage, we will make any changes to your Customer Profile that are reasonably requested by you; and
(c) upon receipt by us of your confirmation that you are satisfied with your Customer Profile, your Customer Profile will ‘go live’ on the ArchiPro Website and we will provide you with a username and login information to enable you to update and maintain your Customer Profile should you need to do so.
5.3. Where the Customer wishes to build their own Customer Profile and has notified us of its intention to do so in accordance with clause 5.1(b):
(a) we will set up the basic parameters of your Customer Profile (including logo placement, company image, your contact details and other Customer related information);
(b) once the basic parameters of your Customer Profile have been established, we will provide you administration access through a website link to enable you to complete your Customer Profile in its draft state. You will be solely responsible for uploading and modifying any Content to and on your Customer Profile at this stage;
(c) once you are satisfied that your Customer Profile is complete and is ready to ‘go live’ on our website, we will be notified and required to approve the Customer Profile and its Content to ensure it meets our quality, size and general content requirements; and
(d) once we are satisfied that your Customer Profile meets our requirements, your Customer Profile will ‘go live’ on the ArchiPro Website.
5.4. Irrespective of whether ArchiPro or the Customer is responsible for the creation of the Customer Profile:
(a) you may update, amend, edit, or otherwise alter your Customer Profile at any time during your Membership, subject to the requirements relating to Content set out in clause 6 below and our approval of such changes as may be required from time to time; and
(b) we will provide ongoing support and maintenance of your Customer Profile upon request from you.
5.5. ArchiPro does not guarantee specific placements of your Customer Profile or Content on the Online Services. Any specific Content placement agreed with you as part of your Membership is subject always to the discretion of ArchiPro and the compliance of that Content with any quality, size or other general requirements of ArchiPro from time to time.
6. YOUR CONTENT
6.1. You acknowledge and agree that, whether or not we are responsible for sourcing, uploading or reviewing your Content, we are not responsible for, nor will we be liable for, confirming the accuracy or legality of the Content. In particular, you represent and warrant that any Content which is used on or in connection with the Online Services (including your Customer Profile):
(a) does not contain anything that is misleading or deceptive or which is likely to mislead or deceive;
(b) complies with the Competition and Consumer Act 2010 (Cth) (including the ACL), the Trade Marks Act 1995 (Cth), the Copyright Act 1968 (Cth), and all other applicable laws and regulations;
(c) is your own work or you have the necessary permission from the author or owner of the relevant Content to use such Content in the manner contemplated by this Agreement;
(d) does not violate or infringe the moral, intellectual property, privacy or other rights of any other person;
(e) does not constitute or contain confidential information;
(f) is complete and accurate and meets all other quality or procedural requirements for that Content as advised by us to you from time to time;
(g) does not contain any virus, worm, corrupt file, or other forms of malicious code or content that may harm a website or computer; and
(h) does not contain any cookie, tracking tag or other tracking device unless we have provided our prior written consent to such inclusion.
6.2. You, or your relevant licensor’s, will retain all ownership in the Content however you acknowledge and agree that we may use, reproduce, modify, edit, adapt, communicate to the public or display your Content to provide you with the benefits of your Membership, to otherwise meet any obligation we owe to you, and/or to generally operate our business.
6.3. You grant to us, or shall otherwise procure the granting to us, non-exclusive, royalty free permission to use your Content as set out in this Agreement, including for the purposes of clause 6.2. You must have a license for all images issued by the copyright holder which allows you to use this content to promote your services, including on your ArchiPro profile, EDM and social channels.
6.4. We reserve the right to use, not use, or discontinue using your Content (whether in whole or in part) in our sole discretion at any time. We do not guarantee that we will publish all of your Content.
6.5. We will not be responsible for, and you agree to indemnify us against, any loss, damage, claim or demand arising in connection with our use of your Content in accordance with this clause 6.
6.6. To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in the Content you provide to ArchiPro, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to ArchiPro making all uses, edits and modifications of your Content in its sole discretion, including, without limitation, as further described in this Agreement.
7. PROFESSIONAL NETWORK LINKING
7.1. You may create a Professional Network Link on your Customer Profile to connect with other members of ArchiPro’s Online Services that you have worked with in the past, which will result in the other members’ logos displaying in a tab on your Customer Profile called Network as “ArchiPro Professionals we have worked with in the past”.
7.2. You acknowledge that other members of ArchiPro’s Online Services may create a Professional Network Link to your Customer Profile where your logo will display on their Network tab on their Profile, from time to time.
7.3. Where another member of the Online Services has linked their Customer Profile to yours, you may send us a written request with a reasonable explanation to remove the Network link. ArchiPro will review and remove such link as soon as reasonably possible following receipt of such request. Similarly, other members and users of the Online Services may request that we remove any Network links that you have made to their Customer Profiles.
8. OUR INTELLECTUAL PROPERTY
8.1. You acknowledge and agree that ArchiPro owns all intellectual property rights, title and interest (Intellectual Property) in:
(a) the Online Services, including any material (other than your Customer Profile) that we create for you or on your behalf as part of your Membership or the Online Services, whether or not we create such material in conjunction or cooperation with you;
(b) any software, hardware or other technology which underlies or comprises the Online Services;
(c) our trademarks; and
(d) any other intellectual property (whether registered or not) that we create or develop independently on the Online Services.
8.2. All Intellectual Property which exists as at the date of this Agreement, together with any Intellectual Property created or developed during the term of this Agreement, is the absolute property of ArchiPro.
8.3. You agree not to use, modify, reproduce, distribute, sell, license, reverse engineer, decompile, or otherwise exploit our Intellectual Property without our express written permission. You acknowledge that you do not acquire any ownership in, or licence to, our Intellectual Property by your use of the Online Services or your Membership.
9. COMMUNICATIONS
9.1. In connection with your Membership, ArchiPro will send you emails containing information and updates about ArchiPro and the Online Services, your Membership (and any updates or notifications relating to your Membership) as well as relevant industry news and other items of interest. You acknowledge that such emails from ArchiPro are a necessary part of your Membership and by becoming a member and continuing to use the Online Services you agree to receiving such emails from ArchiPro from time to time while you remain a member. One or more team members’ email addresses can be nominated to receive these communications, and can be updated as and when needed throughout your Membership term.
10. CONFIDENTIALITY
Unless we agree otherwise in writing, you will not:
(a) use, nor permit to be used, any information that we provide to you, in whatever form, in respect of your Membership or the Online Services (Confidential Information) for any purpose other than to perform your obligations; or
(b) disclose any Confidential Information, except to your employees, officers, agents or professional advisors who have a need to know such information and provided such persons are subject to obligations of confidentiality substantially similar to those contained in this clause 10.
11. NO WARRANTIES, GUARANTEES OR REPRESENTATIONS
11.1. The Online Services are provided on an "as is" and “as available” basis and, to the extent permitted by law, all warranties, descriptions, representations or conditions, whether express or implied in respect of the Online Services, including as to fitness for any particular purpose, are expressly excluded. In addition, we make no warranty that the Online Services, nor any benefits of your Membership, will be free from transcription, transmission or other errors, or that they will be continuously available or fault-free.
11.2. You acknowledge that third party users of our Online Services may access those Online Services via different websites, services, applications, technologies and devices, the underlying technology, functionality and features of which may affect their presentation, appearance and functionality. We do not guarantee how our Online Services, or any element thereof, will be presented to such third-party users, or that all features will be accessible by them.
12. LIABILITY AND INDEMNITY
12.1. Neither ArchiPro nor the Customer shall be liable for any failure to comply with the Agreement where such failure arises as a result of any act of God, war, terrorism, catastrophic fire or weather event, industrial action involving that party or such other event which is beyond the control of either party.
12.2. You agree to indemnify us against any claims, losses, costs (including legal costs), expenses, demands or liability relating to:
(a) your breach of this Agreement; and
(b) your use of Content, including any failure to comply with clause 6.1.
12.3. We are not your agent and are not involved, on behalf of either you or third-party users of our Online Services, in any dealings resulting from the use of our Online Services. We will not have any liability for any dealing between you and any third-party user of our Online Services, whether as a direct result of the use of our Online Services or otherwise.
12.4. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under this Agreement. However, if a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the ACL, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the ACL, provided that, to the extent that the ACL permits us to limit our liability, then ArchiPro’s liability is limited to:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other 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,
and except in the case of a major failure (as that term is defined in the ACL), ArchiPro can elect as between the remedies set out in paragraphs (a) and (b) above.
12.5. Subject to clause 12.4, and to the extent permitted by law, ArchiPro’s liability to you arising directly or indirectly under or in connection with this Agreement or otherwise in connection with or in any way relating to the Online Services, and whether arising under any indemnity, statute, in tort (for negligence or otherwise) or on any other basis in law or equity, is limited as follows:
(a) ArchiPro excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Online Services; and
(b) ArchiPro’s total aggregate liability under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Online Services, is otherwise limited to the greater of:
(i) AUD$10; and
(ii) the total annual Membership Fees you have paid to us for the Online Services that are the subject of the relevant claim.
13. DISPUTES
13.1. Where a dispute arises between ArchiPro and the Customer in respect of the Agreement or the Online Services, then, as a first step, the parties must use best endeavours to resolve the dispute informally in good faith. However, where the dispute has not been resolved within 4 weeks of the dispute first arising, the dispute may be referred by either party to the Resolution Institute (ACN 008 651 232), for facilitation of arbitration in accordance with the Resolution Institute's Arbitration Rules. Such arbitration shall be conducted by a single arbiter appointed by mutual agreement of ArchiPro and the Customer or, failing agreement, either party may request a nomination from the Chair of the Resolution Institute.
14. GST
14.1. In this clause 14:
(a) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
(b) terms used in this clause 14 shall have the same meaning as in the GST Act.
14.2. Unless expressly specified to the contrary, all amounts payable under this Agreement (consideration) by one party (payor) to the other (payee) have been expressed to be exclusive of GST. The payor will, at the same time as paying the consideration to the payee, pay an additional amount on account of the GST, so that after deduction of GST, the payee receives no less than the amount of the consideration.
14.3. Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled.
15. MISCELLANEOUS
15.1. The Customer is not permitted to assign any of its rights or obligations under the Agreement without the prior written consent of ArchiPro. A change in the Customer’s effective ownership or control will be deemed an assignment for the purposes of this clause. ArchiPro may assign, transfer, licence or subcontract any and all of its rights and obligations under the Agreement (including any Customer indebtedness) by notice to the Customer but without requiring the Customer’s consent. Each of ArchiPro’s assignees and transferees will have the same rights and remedies against the Customer as ArchiPro has under the Agreement.
15.2. If any provision of this Agreement is found to be invalid, illegal or unenforceable, then such provision shall be deemed to be amended to the extent required to cure such invalidity, illegality or unenforceability and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.3. No waiver of any breach of, or failure to enforce any provision of, the Agreement at any time by either party shall in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the Agreement.
15.4. The Agreement is governed by, and is to be construed in accordance with, the laws of the State of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of the State of Victoria, Australia or the Commonwealth of Australia and any courts of appeal from these courts.
