Terms and Conditions
Last updated: October 5th, 2017
Welcome to ratemybuilder.com.au, a website portal operated by ratemybuilder.com Pty Ltd 16902 299 (“RMB”).
RMB provides a portal for visitors (“End Users”) to use ratemybuilder.com.au (“Site”) and other websites, social media web pages and smart phone applications operated by RMB. The Site allows End Users to provide feedback or commentary on individual Builders listed on the Site.
End Users and Builders may also purchase goods and services which RMB chooses to offer through the Site from time to time (“Goods and Services”).
RMB will permit you to use the Site and Services and purchase goods through the Site in accordance with the terms and conditions set out below (“this Agreement”). This Agreement forms a binding legal agreement between you and RMB. As an End User of the Site, you will at all times be bound by this Agreement. If you use the functions and services available to Builders, then you will be bound to this Agreement as both an End User and a Builder.
Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted the terms and conditions of this Agreement by signing same, or by clicking a button on your computer screen or otherwise electronically indicating your acceptance of this Agreement or by proceeding with the purchase of any goods or any use of the Services.
THE PRODUCTS, GOODS AND SERVICES WE PROVIDE ON THE SITE
1. Subject to the terms and conditions of this Agreement, RMB will provide you with the following Goods and Services (“Services”):
(a) the ability to create an Account on the Site and use functionality only available to holders of an Account;
(b) the ability for End Users to search and browse Builders on the Site and view information contained on the Site (“Builder Profiles”);
(c) the ability for End Users to rate Builders and provide comments on their performance, which will appear in the Builder Profiles;
(d) the ability for Builders to update and manage their Builder Profile; and
(e) the ability to purchase Goods and Services, as offered through the Site.
(f) Subject to the terms below, RMB agrees to provide the use of the site for such a Term as is specified in the Agreement with you.
2. The provision of the Goods and Services which you purchase, constitute RMB’s only obligation to you.
3. You agree that RMB may modify, restrict, suspend, discontinue and/or reinstate the Goods and Services at any time.
CREATING AN ACCOUNT WITH RMB
4. RMB may require you to create an online account with RMB (“Account”) in order to use the Goods and Services.
5. If you agree to create an Account with RMB, then you agree:
(a) if requested by RMB, to use your email address as your username;
(b) that the Account will be created using RMB’s online sign up process;
(c) to keep confidential and secure any password used to access the Account;
(d) that you warrant that all information provided by you to RMB for the setup of the Account is true and correct in every detail; and
(e) that you will only use the Account for the purposes of purchasing the Goods and Services.
6. You acknowledge and agree that RMB may disable or delete your Account at any time in its sole and absolute discretion. If your account is deleted, you agree and acknowledge that you will only be able to use parts of the Site and the same Services as provided by RMA to members of the public who do not have an account.
7. You may terminate your use of the Service at any time by disabling or deleting your Account via functionality contained in the Site. BUILDERS
8. (a) RMB will list Builders on the Site. Where applicable, it will obtain the identity of each Builder and information about them from the Builder or from publicly available sources.
(b) RMB makes no warranty or representation about the accuracy of information it displays on the Site.
(c) RMB will determine which Builders it lists on the Site and remove a listing of a Builder at any time.
(d) You acknowledge that where you claim your own Profile, you are agreeing to irrevocably licence RMB to reproduce all data (including, but not limited to, all images text, floorplans, movies or other works associated with a building) details of building projects the Builder has completed, qualifications, and years in the industry. You warrant that you are authorised to, and have the necessary rights to, grant such a licence.
9. A Builder may manage and update their Builder Profile only if:
(a) they have registered an Account with RMB; and
(b) they have claimed their Profile with RMB using the relevant functionality on the Site, including sufficiently identifying themselves to RMB as the individual Builder.
10. A Builder may only claim their own Builder Profile.
11. Subject to clause 16, a Builder must not comment on the Builder Profile of another Builder.
12. RMB will determine what functionality it provides to Builders to allow them to manage and update their Profile. Such functionality may include the ability for Builders to:
(a) upload an alternative photo, contract details and Builder Profile details;
(b) add links to their social media accounts;
(c) add or modify a summary of their Builder Profile;
(d) respond to comments and testimonials on the Builder’s Profile (however only one response will be allowed in relation to each comment or testimonial).
13. You acknowledge that RMB will be able to modify any part of the content of your Builder Profile at any time at its sole discretion with or without notice to you. RMB may also remove your Builder Profile from the Site, see clause 3.
14. You will be unable to modify comments and/or testimonials from End Users on your Builder Profile.
15. RMB will determine what functions it offers End Users on the Site. RMB may, from time to time, vary the functions offered to End Users at its discretion. This functionality may include:
(a) the ability to review Builder Profiles and search or browse for Builders using different search criteria;
(b) the ability to view End User content and all other contents on the Site;
(c) the ability to provide comments on Builder Profiles;
(d) the ability to comment in any public forums on the Site;
(e) the ability to provide ratings of Builders using the rating criteria specified on the Site, and;
(f) the ability to view a log or history of interactions with the Site.
16. If you are both a Builder and an End User, then you agree that you will provide commentary on other Builders only if that commentary is based on your own personal experience in dealing with that Builder with respect to building services provided to you.
SUPPLY OF GOODS AND SERVICES
17. RMB may determine from time to time to supply Goods and Services through the Site.
18. If Goods and Services are supplied through the Site, then RMB may impose additional terms and conditions which apply to the purchase and supply of the relevant Products and Services. Any additional terms will form part of this agreement.
19. By purchasing any Goods or Services from the Site, you agree:
(a) that you are bound by any additional terms applicable to the Goods or Services;
(b) to pay the applicable Fee (“Fee”) for such Goods or Services; and
(c) to be bound to a minimum Term (“Term”) to use or purchase those Goods or Services.
20. You acknowledge and agree that each Term will automatically renew for successive Terms of the same duration unless you notify RMB in writing and at least 7 days prior to the expiry of the then current Term, that you do not wish to renew your use of the Goods or Services or unless your use of the Goods or Services is otherwise terminated in accordance with this Agreement.
21. RMB will provide you with invoices in respect of the Fee on a monthly basis and you agree to pay the Fee by the date indicated on RMB’s invoice.
22. RMB will require you provide it with an authorisation to direct debit the Fee from your credit card or nominated bank account. Then the Fee will be automatically debited by RMB.
23. You may terminate any order or agreement for RMB to supply you with Goods or Services at any time with no less than 30 days’ prior written notice to RMB.
24. RMB may suspend or terminate any order or agreement for RMB to supply you with Goods or Services: (a) if you are in breach of this Agreement and fail to remedy that breach within 7 days of receiving written notice from RMB requiring you to remedy the breach; or
(b) without cause, by giving 14 days’ notice to you.
25. Upon termination of any order or agreement for RMB to supply you with Goods or Services: (a) where such termination is pursuant to clause 24(a) or 24(b), you must pay any unpaid amount of the Fee to RMB which would be owing over the remainder of the Term had such termination not occurred and you agree that, if an authorisation has been given in accordance with clause 22, the Fee may automatically be charged to your credit card or direct debited from your nominated bank account; or
(b) if the order or agreement is terminated, the you must pay the Fee incurred up to date upon which termination becomes effective only. RMB will refund you any unused portion of the Fee which you have prepaid, and which related to any period after the effective date of termination.
26. Termination of your use of a Product will not of itself terminate your use of the Site or the Services in your capacity as an End User.
PROHIBITED USES OF SITE
27. The User Content (see clause 15) and all other content and information on the Site, including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information is proprietary to RMB. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, licence, create derivative works from, transfer or sell or re-sell any information, software, products or Services obtained from or through the Site. Additionally, you agree not to: (a) use the Site or its contents for any commercial purpose, other than pursuant to the terms of this Agreement;
(b) use another person’s name, account, identity or password without permission or use the Site while impersonating another person;
(c) access, monitor or copy any content or information of the Site using any robot, spider, scraper or other automated means or any manual process for any purpose without RMB’s express written permission;
(d) violate the restrictions in any robot exclusion headers on the Site or bypass or circumvent other measures employed to prevent or limit access to the Site;
(e) take any action that imposes, or may impose, in RMB’s discretion, an unreasonable or disproportionately large load on its server infrastructure;
(f) deep-link to any portion of the Site for any purpose apart from where expressly permitted by this Agreement;
(g) attempt to modify, translate, adapt, edit, decompile, disassemble or reverse engineer any software programs used by RMB in connection with the Site or the Goods or Services.
PROVIDING CONTENT – INFRINGING CONTENT - GUIDELINES
28. (a) You agree that RMB will be the owner of all Intellectual Property Rights (as defined below) in any content which you submit to the Site, including, without limitation, postings on the Site, commentary in forums or on Builder Profiles, or any suggestions or ideas, or any other work, item or thing you upload to the Site or provide to RMB (“User content”). “Intellectual Property Rights” shall include all intellectual property rights of any kind whatsoever throughout the world, including all present, future, registered and unregistered rights which subsist in copyright, trademarks, patents, designs and circuit layouts.
(b) To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in any User Content you provide to RMB, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to RMB making all uses, edits and modifications of the User Content in its sole discretion.
(c) You agree that:
(i) the User Content is not confidential;
(ii) you are solely responsible for the User Content you post on the Site;
(iii) RMB may reproduce or modify any User Content on the Site however it sees fit.
(iv) RMB may determine whether or not to attribute the User Content to you, or remain silent on any attribution.
(d) You agree that RMB is under no obligation to edit, monitor or control the User Content which is published to the Site by an End User or Builder.
(e) You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish on the Site, any of the following (“Infringing Content”):
(i) User Content that may infringe the Intellectual Property Rights of any person;
(ii) User Content that impersonates any person or entity or otherwise misrepresents your relationship with RMB or any other person;
(iii) User Content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
(iv) User Content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;
(v) User Content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity or violate the rights of any person or party in any country of the world;
(vi) User Content that has been solicited by an incentive or payment originating from the Builder or a representative of the Builder;
(vii) unsolicited promotions or spam;
(viii) User Content which contains the private information of any person;
(ix) User Content that is unrelated to the page of the Site in which such User Content is posted; and/or (x) User Content which contains viruses, malware or any other malicious software or data.
(xi) For guidance on how to write commentary that may be less susceptible to removal based on potential legal liability, please refer to the content guidelines.
29. RMB will have no responsibility or liability for any User Content or Infringing Content posted, stored or uploaded on the Site or for any loss or damage suffered by you or any other person as a result of the Site storing, holding or making available any User Content or Infringing Content to End Users, Builders or other members of the public.
30. RMB is under no obligation to review any User Content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.
31. If you have any complaints or objections to material or content including User Content posted on the Site, or if you consider any User Content to be Infringing Content, you may contact us and notify us of the relevant content by following our takedown procedure (“Takedown Procedure”) and submitting a takedown request (“Takedown Request”). By emailing email@example.com.
32. Where you submit a Takedown Request, you agree to follow any procedures which RMB specifies and you agree to provide RMB with all information which it requests.
33. You acknowledge that notwithstanding your Takedown Request, RMB is under no obligation to remove any Infringing Content other than where stated in this Agreement or where required by law.
34. If RMB does remove allegedly Infringing Content, then you acknowledge that such removal is done on a without prejudice basis, and upon such removal, you agree to release RMB from any action, claim, proceedings, damages or other obligation which you may make, institute or claim against RMB due to the publication of the allegedly Infringing Content on the Site and indemnify RMB, without limitation for any liability or claim arising there from.
35. You indemnify and keep indemnified RMB, its agents, employees and officers against all loss, cost, expense or damage which RMB, its agents, employees or officers suffer or incur, as a direct or indirect result of: (a) your breach of this Agreement or violation of any law or rights of a third party;
(b) posting or uploading any Infringing Content to the Site; or
(c) any legal proceedings or any claim made against RMB by a third party, which arises directly or indirectly from any Infringing Content posted or uploaded by you to the Site.
LIABILITY AND DISCLAIMER
36. You acknowledge that RMB has made no warranties that the Goods or Services will be error free.
37. You agree that RMB will not be liable or responsible for any failure in, or delay to, the provision of the Goods or Services or in RMB complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:
(a) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
(b) denial of service, attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
(c) a significant demand being placed on RMB’s services which is above the usual level of demand and which results in a failure of RMB’s software and hardware to function correctly;
(d) the failure of any third party (including without limitation any bank or other financial organisation) to fulfil any obligations to RMB; or
(e) any other circumstances or event which is beyond the reasonable control of RMB.
38. You acknowledge that RMB has not made and will not give any express or implied warranties in relation to the Goods or Services or any other goods or services provided by RMB under this Agreement, other than those warranties expressly contained in this Agreement. Subject to the following, any term that would be implied into this Agreement, including without limitation, any condition or warranty, is hereby excluded.
39. Subject to your rights arising under the Competition and Consumer Act 2010 (Cth) or other similar consumer legislation, you agree that RMB will not be liable in respect of any claim by you (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental in indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Goods or Services or the provision of any other goods or services under this Agreement and whether as a result of any break or default by RMB, or any negligence of RMB. The maximum liability of RMB under this Agreement for any and all breaches of this Agreement, and any negligence in relation to this Agreement, will not exceed the total amounts of payments made by you to RMB under this Agreement, and if you have not paid any moneys to RMB, then the maximum liability of RMB will be $20.00.
40. If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of RMB is limited, at the option of RMB, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
(c) Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of RMB will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by statute.
(d) If you are a consumer (as defined in the Competition and Consumer Act 2010 (Cth)), then nothing in this Agreement restricts, limits or modifies your rights or remedies against RMB for the failure of a statutory guarantee under the Australian Consumer Law where such restriction, limitation or modification would be prohibited by the Competition and Consumer Act 2010 (Cth).