1 TEXTURA AUSTRALASIA PTY LTD ACN ( Textura ) CONSTRUCTION PAYMENT MANAGEMENT SYSTEM TERMS AND CONDITIONS OF USE Welcome to the Textura Construction Payment Management ( CPM ) System. By clicking the I AGREE button at the bottom of these Terms and Conditions, you represent that (i) you have read and understand all of the provisions of these Terms and Conditions; (ii) you accept these Terms and Conditions on behalf of the company or other entity that you represent ( Subscriber ); and (iii) you have authority to contractually bind the Subscriber to these Terms and Conditions. Subscriber must have accepted these Terms and Conditions before it can authorise its representatives (such authorized representatives are collectively referred to as Users ) to use the Textura CPM System. The Subscriber and all Users are subject to these Terms and Conditions. 1. INTELLECTUAL PROPERTY NOTICE 1.1 This website is proprietary to Textura Corporation and its related bodies corporate, including Textura (collectively Textura Group ) and includes information that is the property of Textura Group and its licensees/users. This website, its content, and all proprietary information of Textura Group or its licensors on the website (collectively Materials ) are protected by the copyright and/or trade secret laws of jurisdictions throughout the world. No person (including Subscriber and all Users) may, or is entitled to, copy or reproduce the Materials or use the Materials other than as permitted by Textura, or disclose the Materials to others, without the prior written consent of Textura. 1.2 This website and the Textura CPM System, and the operations thereof, are covered under U.S. patents and patent applications, as well as patents and patent applications pending in other countries, including the following Australian patents and patent applications: AU , AU , AU , AU , AU , AU , AU , AU , AU , AU and AU "TEXTURA" is a registered trademark of Textura Corporation. 2. SUB-LICENCE 2.1 Textura grants to Subscriber a limited, non-exclusive, non-transferable sublicence ( Sub-Licence ) to use the Textura CPM System in connection with projects that are registered on the Textura CPM System ("Projects") for the duration of the Projects and within those parts of Australia and New Zealand that
2 are relevant to the conduct of the Projects. 2.2 Subscriber acknowledges that the software of the Textura CPM System may contain copyrighted material, trade secrets, or other proprietary information which belongs to Textura Group, or is licensed by Textura Group from third parties, or may embody patented subject matter owned by a member of Textura Group or third parties. 2.3 Subscriber agrees to maintain and protect the confidentiality of the Textura CPM System and will not reproduce, distribute, or disclose any aspect of the Textura CPM System including related software or its contents to third parties or use the Textura CPM System for any purpose other than authorised herein. 2.4 Subscriber will not use and will not authorise others to use the Textura CPM System for any purpose not authorised by these Terms and Conditions nor for unlawful purpose. 2.5 Textura reserves the right to terminate the Sub-License and Subscriber s and all Users' use of, and rights to use, the Textura CPM System for breach of any of the terms of these Terms and Conditions by any of them. 3. PRICING AND PAYMENT OF FEES 3.1 In consideration of the grant of the Sub-Licence, Subscriber is required to, and agrees to pay, the fees set out in the linked "SCHEDULE OF PRICING AND FEES" ( Fees ) by reference to Projects. Textura reserves the right to change the Fees with not less than three months prior notice to Subscriber. Projects already in progress on the Textura CPM System at the time of a change in the Fees will continue at the existing level of Fees through completion of the Project. 3.2 If Subscriber does not pay any Fee when due, Textura may suspend Subscriber's access to the Textura CPM System until payment is made. Textura reserves the right to change the basis of payment of Fees by notice to Subscriber. 4. ELECTRONIC PAYMENT 4.1 Subscriber is responsible for providing and maintaining the contact and payment information necessary to effect electronic payments between parties participating in the Textura CPM System. 4.2 Textura does not accept responsibility for failure by any participant in the Textura CPM System to accurately and correctly enter contact or payment information and Textura makes no warranties or representations as to the accuracy of such information.
3 4.3 Subscriber is responsible for updating the contact and payment information whenever necessary, including bank account information, organisation information, and user information. 4.4 To the maximum extent permitted by law, Textura is not responsible for any participant not receiving payment due to a failure by any Subscriber to update contact or payment information. 4.5 Subscriber is responsible for ensuring, and agrees to ensure, that electronic credits and debits are at all relevant times authorised to be made on Subscriber's bank account and to maintain sufficient funds in its bank account for payment of the Fees. 5. ELECTRONIC SIGNATURES 5.1 Subscriber agrees that it is legally bound by the electronic signatures generated through and utilized by the Textura CPM System. If any document is required to be signed (whether or not its also required to be witnessed), to the maximum extent permitted by law in the State or Territory of Australia in which the applicable Project is located ("Relevant Law"), Subscriber agrees to accept electronic signature (including by witnesses) of documents provided through the Textura CPM System. 5.2 Without limiting clause 5.1, Subscriber agrees that: (a) electronic signatures are a valid form of execution of forms, contracts and other documents; and (b) any such forms, contracts and documents signed electronically by other participants using the Textura CPM System, including all claims, statutory declarations, and variations, are, to the maximum extent permitted by Relevant Law, validly executed and binding on Subscriber. 5.3 Subscriber agrees that each User designated by Subscriber as a "signer" in the Textura CPM System is authorised to sign on behalf of Subscriber and thereby legally binds Subscriber. 5.4 Textura may use any suitable electronic signature service, such as, for example, the services provided by AlphaTrust Corporation. If it uses such service, to the extent permitted by law, Textura is not responsible for the services provided by the AlphaTrust Corporation or any other third party electronic signature service and such services may be provided under a separate agreement. 5.5 Subscriber agrees to use, and to require that all Users must use, the security required by the electronic signature service, such as usernames, passwords, and/or PINs. Subscriber agrees to keep sole control and not give the usernames, passwords, and/or PINs to anyone who is not an authorized User. 6. PAYMENTS
4 6.1 If Textura delivers a payment file to Subscriber, Textura is not responsible for payment of the funds (which must be effected by Subscriber and its financier(s)). 6.2 If, by agreement with Subscriber, Textura delivers a payment file to Subscribers nominated financier(s), Textura is not responsible for payment of funds once the file has been delivered by Textura to the financier(s). 6.3 In no circumstances will Textura be liable for any deficiency in the payment file it delivers as contemplated by clause 6.1 or 6.2, as appropriate, where the deficiency arises from the inputting of incorrect data to the Textura CPM System by, or other error in the operation of the Textura CPM System caused by, any person who is not a member of the Textura Group. 7. SECURITY AND CONFIDENTIALITY 7.1 Textura will take commercially reasonable steps, including the use of usernames, passwords and encryption, to keep the information provided to Textura Group (including information stored in the Textura CPM System) secure and confidential from third parties that are not using the Textura CPM System. 8. PRIVACY 8.1 Subscriber and/or Users may provide Textura with information so that Textura can perform its obligations under these Terms and Conditions including procuring the performance of the Textura CPM System. Textura will (a) treat all such information which is personal information as confidential (although we reserve the right to disclose this information in the circumstances set out below); (b) keep it securely; and (c) comply with our obligations under applicable data protection and privacy laws. 8.2 Subscriber and Users consent to the use by Textura Group of their respective personal information and the other information which is provided to Textura so that Textura Group can perform its obligations under these Terms and Conditions including procuring the performance of the Textura CPM System. We may transfer this information to these other group companies (but not to third parties) for these purposes. 8.3 From time to time, Textura Group may contact Subscriber or any User by mail, telephone, , text or facsimile in relation to the subject matter of these Terms and Conditions and Subscriber and Users agree that each will not consider this as being a breach of any of their respective rights under any data privacy, data protection or privacy law. 8.4 Textura Group will only use any personal information of Subscriber or any User
6 notified of the likelihood of such occurrence. 9.6 To the extent permitted by the Australian Consumer Law, the sole and exclusive remedy available to Subscriber for system failures shall be limited to the recovery of actual direct damages, which in no event will exceed the amounts paid to Textura by Subscriber hereunder. 9.7 Textura's liability to Subscriber for a failure to comply with any Consumer Guarantee (other than guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law) is limited to: (a) (b) in the case of services, the cost of supplying the services again or repayment of the cost of having the services supplied again; in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired. 9.8 Subscriber specifically acknowledges and agrees that Textura is not liable for any defamatory, offensive or illegal conduct of any User or Subscriber in respect of the Textura CPM System. 9.9 In clause 9: "Australian Consumer Law" means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any statutory modification or re-enactment of it; and "Consumer Guarantees" means the guarantees set out in Division 1 of Part 3-2 of the Australian Consumer Law with which Textura is obliged, under the Australian Consumer Law, to comply in its supply of the Textura CPM System to Subscriber (if any). 10. THIRD PARTY LINKS AND FRAMES 10.1 Textura may provide links to websites operated by third parties. Textura makes no representations whatsoever about any third party websites that Subscriber or any User may access through this site. Textura is not responsible for the privacy practices or the content of such websites Textura prohibits the framing of any materials available through this site Textura reserves the right to disable any unauthorised frames and specifically disclaims any responsibility for the contents of any other websites linked to this site. 11. SUBSCRIBER WARRANTIES AND INDEMNITY
7 11.1 Subscriber warrants and represents to Textura that all information submitted by or on behalf of Subscriber (including through Users) through the Textura CPM System is complete and accurate, and that Subscriber has taken reasonable steps to ensure the completeness and accuracy of such information Subscriber agrees to indemnify, defend, and hold harmless (and to continue to do so) all members of Textura Group, together with their respective officers, employees, agents, shareholders, representatives, suppliers and content and service providers from and against all losses, expenses, damages and costs, including reasonable legal costs, resulting from any breach of these Terms and Conditions or any activity related to the use of this site by Subscriber and/or any one or more Users. 12. ABOUT THESE TERMS AND CONDITIONS 12.1 Amendment. Textura reserves the right to change, alter or modify these Terms and Conditions for any reason at any time without prior notice. If Textura does so, changes in these Terms and Conditions will posted on the website and will be effective immediately (except to the extent expressly provided otherwise in these Terms and Conditions). If you are a regular visitor to this website and/or the Textura CPM System, Textura recommends that you check these Terms and Conditions on a regular basis Law and jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that State Contact. The Textura CPM System website content is maintained by or on behalf of Textura Group. Textura can be reached by at: 12.4 Disputes. If a dispute arises concerning these Terms and Conditions or their application to any Project, both parties will act reasonably and attempt to resolve that dispute. If, after 30 days (or such longer period as the parties agree in writing), the parties have failed to resolve the dispute then either party may take whatever action it believes to be appropriate in connection with the dispute, including initiating legal proceedings. Nothing in this clause limits the right of a party to seek interlocutory relief Severance. If any provision of these Terms and Conditions is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way Waiver. The waiver by either party of a breach of any provision of these Terms and Conditions must be in writing and will not operate or be interpreted as a
8 waiver of any other or subsequent breach Dealings. Neither party may assign, novate or otherwise deal with any of its rights, interests or obligations under these Terms and Conditions (or purport to do so) without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed Force majeure. If performance of these Terms and Conditions, or any obligation hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected Party, the affected party, on giving prompt notice to the other party, will be excused from such performance to the extent of such prevention, restriction, or interference PPS Law. If these Terms and Conditions (or a transaction in connection with them) are or contain a security interest under the PPS Law, Subscriber agrees to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which Textura considers necessary for the purposes of (a) ensuring that the security interest is enforceable, perfected and otherwise effective; (b) enabling Textura to apply for any registration, or give any notification, in connection with the security interest so that it has the priority required by Textura; and (c) enabling Textura to exercise any right, power, discretion or remedy of Textura under these Terms and Conditions or applicable law in connection with the security interest. In this clause, PPS Law means: (i) the Personal Property Securities Act 2009 (Cth) and any regulation made at any time under this Act, including the Personal Property Securities Regulations 2010 (Cth) (each as amended from time to time); and (ii any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (i) GST. Any consideration to be paid or provided to a party ("recipient") for a supply made by the other party ("supplier") under or in connection with these Terms and Conditions, unless specifically described in these Terms and conditions as "GST inclusive", does not include an amount on account of GST. Despite any other provision in these Terms and Conditions, if supplier makes a supply under or in connection with these Terms and Conditions on which GST is imposed (not being a supply the consideration for which is specifically described in these Terms and Conditions as GST inclusive) (a) the consideration payable or to be provided for that supply under these Terms and Conditions but for the application of this clause (GST exclusive consideration) is increased by, and recipient must also pay to supplier, an amount equal to the GST payable by supplier on that supply; and (b) the amount by which the GST exclusive consideration is increased must be paid to supplier by recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided. If a payment to a party under these Terms and Conditions is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will
9 be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. Supplier will provide a tax invoice. Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning Relationship. In all transactions and processes carried out using the Textura CPM System, Textura is and acts as a neutral third party, and is not an agent of or affiliated with any party using the Textura CPM System. Neither use of the Textura CPM System nor any provision of these Terms and Conditions creates an agency or fiduciary relationship with Textura or between Users or Subscriber and other subscribers to, and their users of, the Textura CPM System Direction. If Textura is directed by Subscriber to grant access to data on the Textura CPM System relevant to a Project to a third party then Textura will grant such access to that third party and will not be obliged to inform Subscriber of the frequency or extent of access by that third party. Once directed to grant such access, Subscriber may not withdraw or revoke the authorization unless the third party consents in writing to such Authority. No party shall represent to any third party that it is the employee, agent, joint venturer or partner of the other nor make any representation or warranty on behalf of, or in the name of, the other or conduct any business or accept payment or service of legal process for the other, other than as is expressly authorized by these Terms and Conditions Headings and construction. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section hereof, or in any way affect these Terms and Conditions. When used in these Terms and Conditions, unless otherwise expressly stated, including means including, without limitation and include has a like meaning. These Terms and Conditions will be interpreted in accordance with their terms and without any strict construction in favor of or against Textura even though it was responsible for the drafting.