1.1 Welcome to www.varicon.com.au and known as the Varicon Application (the Application), owned and operated Varicon Pty Limited (ACN 634 427 811) (Varicon, we, us, our). The Application provides services to you (the “User”, “you” or “your”) by way of facilitating interactions between:
(a) Builders, project managers and developers (Builders) and any associated director, shareholder, employee, contractor, sub-contractor, servant or agent (Personnel); and
(b) Subcontractors, tradespeople and material suppliers engaged by the Builder and their Personnel (Subcontractors),
to manage, forecast, track, report and reconcile construction costs and expenses (collectively referred to as the Services).
1.2 Access to and use of the Application and the Services is provided by Varicon and is subject and conditional upon these terms and conditions in this End User Licence Agreement (the Terms). Varicon reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Varicon updates the Terms, it will use reasonable endeavours to provide you with notice of the updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
1 Acceptance of these Terms
2.1 By using, browsing, registering as a User or making payment to Varicon, this signifies that you have read, understood and agree to be bound by the Terms. You may also accept the Terms by clicking ‘I Accept’ or ‘I Agree’ to the Terms where this option is made available to you by Varicon in the user interface of the Application.
2.2 You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Varicon; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
3.1 By using the Services, you acknowledge and understand that Varicon does not provide you with any building or construction services and is only a facilitator in delivering the Services. Further:
(a) unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are inclusive of GST unless otherwise indicated on the Application;
(b) Varicon may receive a service fee from third parties in relation to the provision of the Services; and
(c) you shall remain solely responsible for assessing the implications and risks of using the Services.
4 Account Registration
4.1 To access the Services, you are required to register as a User and complete an application form (the Account). As part of the registration process and your continued use of the Services, you will be required to provide personal information about yourself, including but not limited to, the following:
(a) your name;
(b) your email address;
(c) a mailing address;
(d) your telephone number;
(e) a preferred username; and
(f) a preferred password,
(the Registration Details)
5 Your Account Obligations
5.1 As a User, you acknowledge and agree that:
(a) you are solely responsible for the activity that occurs under your Account;
(b) where the User is a Builder or Subcontractor, you are responsible for the activity of your Personnel that occurs under your Account;
(c) you will safeguard against disclosure and not disclose your Account details to anyone else who is not your Personnel;
(d) you have the sole responsibility for protecting the confidentiality of your password and/or email address and you will not disclose to any third party the password used to access your Account;
(e) you agree to immediately notify Varicon in writing at [email protected] of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(f) any use of your registration information by any other person, or third parties, is strictly prohibited;
(g) you will use the Application and the Services only for the purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(h) access and use of the Application and its Services is limited, non-transferable and allows for the sole use of the Application by you for the purposes of Varicon providing the Services and only for the duration that you are a User;
(i) you must not:
(i) expressly or impliedly impersonate another User or use the Account or password of another User at any time;
(ii) use the Services or the Application for any illegal and/or unauthorised use;
(iii) use the Application to collect email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Application;
(iv) use the Application unlawfully or in a manner that violates any applicable laws, regulations or these Terms;
(v) hack into any part of the Application or attempt to circumvent Varicon’s security or network to access data not intended for you;
(vi) interfere with the servers or networks connected to the Application or the Services, or violate any of the procedures, policies or regulations of networks connected to the Application or the Services;
(vii) engage in conduct or access the Application in a way that will impose an unreasonable or large burden of traffic demands on Varicon’s infrastructure;
(viii) create derivative works of the Application or an application substantially similar or a direct copy of the Application such that confusion may occur as to which the Application is operated by Varicon;
(ix) copy, or produce a substantially similar platform to the one that was provided to you through the Services without referencing Varicon;
(x) resell or export the software associated with the Application or any Services; and
(xi) automate the use of the Application or the Services; or
(j) remove any commercial advertisements or affiliate links from the Application without notice.
5.2 You acknowledge and agree that Varicon reserves the right, at any time and without prior notice, to disable a User’s access to its Account and with notice to remove a User’s access to its Account where Varicon, in its reasonable opinion, determines that the User has violated these terms, or may violate these Terms.
6 Creating a Project
6.1 Once you have registered an Account, a Builder will be able to create a new project (Project), or contact Varicon to create a new Project for you, depending on your subscription plan. When creating a new Project, you will be able to provide details, which includes, but is not limited to:
(a) The address of the Project;
(b) The name, address and contact details for a Builder;
(c) The name, address and contact details for a Subcontractor;
(d) The name, address and details for your Personnel that will manage the Project (the Job Owner); and
(e) The anticipated date for the completion of the Project,
(collectively referred to as the Project Details).
6.2 Upon the creation of a Project and providing the Project Details, the Builder, Subcontractor, Varicon and the Job Owner will be notified that they have been assigned to the Project.
7 Copyright and Intellectual Property
7.1 The Application and the Services are subject to copyright under the laws of Australia and by International Treaties. Unless otherwise indicated, all rights in the content and compilation of the Application and Services (including but not limited to text, graphics, logos, button icons, video images, audio clips, Application, code, scripts, lists, design elements, interactive features) (the Content) are owned or controlled for these purposes and are reserved by Varicon or its contributors.
7.2 Varicon retains all rights, title and interest in and to the Services and Application and all related Content. Nothing you do on or in relation to the Services and Application will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),
or any other intellectual property whatsoever to you.
7.3 Varicon, and each User retains all Intellectual Property Rights, except as stated herein, in any information, data, document, Project Details and Project Information uploaded to the Application (the Uploaded Content). The User grants to Varicon a perpetual, irrevocable, non-exclusive, transferable, royalty-free licence to a User’s Uploaded Content. Varicon will own any results, methodologies, data or meta data, including any analyses, index results, or reports, which is either contained within, gleaned through, derived from, captured by, or generated by your use of the Services or the Uploaded Content (Derivative Materials).
7.4 The User acknowledges and agrees that Varicon exclusively and unconditionally owns all Moral Rights in all the Derivative Materials.
7.5 The User may not, without the prior written permission of Varicon and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose.
9 General Disclaimer
9.1 Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
9.2 Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
(b) Varicon will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services, the Products or these Terms (including as a result of not being able to use the Services or the late supply of the Services or Products), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
9.3 You acknowledge and agree that Varicon:
(a) does not make any terms, guarantees, warranties, representations, or conditions whatsoever regarding the Services or Products other than provided for pursuant to these Terms;
(b) does not provide any guarantees as to the quality of the Services or Products;
(c) takes no responsibility and makes no warranties, express or implied, in relation to the content and suitability of any connections made between you and a Project Participant. You and the Project Participants are responsible for the conduct between one another and all information or communications.
9.4 You acknowledge and agree that Varicon only makes available the Application and the Services. We are not party to any agreement entered into between a Builder, Subcontractor or Project Participant and we have no control over the conduct of those parties or any other Users.
9.5 Use of the Application, the Services and the Products are at your own risk. The Application, the Services are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, contractors, employees, agents, contributors, third party content providers or licensors of Varicon make any express or implied representation or warranty about its Content, or any services (including the Services of Varicon) referred to on the Application. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Application and the Services (including third party material and advertisements on the Application);
(c) costs incurred as a result of you using the Application and the Services;
(d) the Content or operation in respect to links which are provided for the User’s convenience; or
(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Application.
10 Limitation of liability
10.1 Varicon’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Payment made by you under these Terms or where you have not made a Payment, then the total liability of Varicon is the resupply of Services to you.
10.2 You acknowledge and agree that Varicon, its affiliates, employees, contractors, agents, contributors, third party content providers and licensors (the Personnel), shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, or consequential loss, loss of profits , goodwill, or business reputation and any other intangible loss which may be incurred by you, however caused, and under any theory of liability, unless such limitation cannot be excluded by any applicable law, in which case, the liability is limited to the maximum extent permitted by law.
11 Force Majeure
11.1 Force Majeure means a circumstance beyond the reasonable control of a party and which results in that party being unable to observe or perform an obligation on time under these Terms (other than an obligation to make a payment). Such circumstances include but are not limited to:
(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
(c) disease and a pandemic; and
(d) failure of internet and telecommunication services.
11.2 Varicon will be excused from and not liable for any delay or failure in performance hereunder, other than the payment of money, caused by reason of a Force Majeure event.
12.1 You agree to indemnify and keep indemnified Varicon and its Personnel from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Application and/or Services, including but not limited to:
(a) any misuse of the Application or the Services by you, including and without limitation, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you;
(b) your breach of the Terms, including any misuse of the Materials; or
(c) any activity which you engage in on the Application or Services or through Varicon.
12.2 This indemnity will survive termination of the Terms.
13 Termination of Services
13.1 The Terms will continue to apply until terminated by either you or by Varicon as set out below.
13.2 If you want to terminate the Terms, you may do so by:
(a) providing Varicon with a written notice at any time of your intention to terminate to Varicon at [email protected]; and
(b) closing your Account for all of the Services which you use where Varicon has made this option available to you.
13.3 Your elected termination will be effective upon receipt of the notice of your intention to terminate by Varicon.
13.4 Varicon may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) Varicon is required to do so by law;
(c) the partner, if any, with whom Varicon offered the Services to you has terminated its relationship with Varicon or ceased to offer the Services to you;
(d) Varicon is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the Services;
(e) if you have used the Services:
(i) in breach of any law;
(ii) in a way that is misleading or deceptive;
(iii) in a way which is unreasonable as determined by Varicon at its absolute discretion; or
(iv) in a manner which can or does bring Varicon into disrepute or could damage Varicon’s reputation as determined by Varicon in its absolute discretion.
13.5 Subject to local applicable laws, Varicon reserves the right to discontinue or cancel your access to the Services at any time and may suspend or deny your access to all or any portion of the Application or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct damages Varicon’ name or reputation or violates the rights of those of another party.
13.6 When the Terms terminate, or your Account is terminated, all of the legal rights, obligations and liabilities that you and Varicon have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
14 Dispute Resolution
14.1 If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought):
(a) A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute.
(b) On receipt of that notice (Notice) by that other party, the parties to the Terms (the Dispute Parties) must within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(c) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Dispute Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee.
(d) The Dispute Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing.
(e) It is agreed that the mediation will be held in Melbourne, Victoria.
(f) For the avoidance of doubt, the Dispute Parties need not attend the mediation or other means of resolution in person. The Dispute Parties may attempt to resolve the matter via any means of electronic communications.
(g) All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
(h) If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Dispute Party may ask the mediator to terminate the mediation and the mediator must do so.
(i) In the event that the Dispute is not resolved at the conclusion of the mediation, either Dispute Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
15 Venue and Jurisdiction
15.1 In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.
16 Governing Law and Jurisdiction
16.1 The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
17.1 Varicon may provide any notice to you under the Terms by sending a message to your email address. The notice provided by Varicon to you by email shall be deemed to have been properly given on the date Varicon sends the email, regardless of whether you have received the email.
17.2 Unless specified otherwise, any notices provided by you to Varicon must be in writing and sent to [email protected].
18 Third Party Benefits
Some of the provisions of these Terms are intended to benefit third parties, including our Personnel. A User agrees that those terms operate as a deed poll in favour of those third parties, and each of those third parties have the benefit of, and is entitled to enforce, those terms even though they are not a party to these Terms. These Terms contain third party benefits that are enforceable by each of those third parties and also constitutes an intention to create a trust of a contractual promise to benefit each of the third parties and can be relied upon and carried into effect by them.
19 Independent Legal Advice
The parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
20 Entire Agreement
These Terms and any terms referenced or linked herein constitute the entire agreement between the parties concerning the subject matter of the agreement and supersede all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties.
If any part of the Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.
22.1 A waiver of any right, power or remedy under this Agreement must be in writing and signed by the party granting it.
22.2 A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
22.3 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
23.1 Varicon may not assign or transfer its rights or obligations under the Terms without your consent.
23.2 You may not assign or transfer your rights or obligations under the Terms without prior written consent of Varicon. A purported assignment without written consent will be deemed to be void and convey no rights.
If you wish to notify us about anything relating to these Terms, please contact us [email protected].