(c) You may not use the Software other than as specified in clause 4.6 and clause 1.1(a) without Our prior written consent, and You acknowledge that additional fees may be payable and/or withdrawal of the Software Subscription on any change of use approved by Us.
(d) You have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or part.
(e) the software identified in the Appendix to these Additional Terms (the “Third-Party Software“) shall be deemed to be incorporated within the software for the purposes of this licence (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms.
(f) You shall indemnify and hold Us harmless against any loss or damage which We may suffer or incur as a result of Your breach of any Third-Party Additional Terms howsoever arising.
(g) We may treat Your breach of any Third-Party Additional Terms as a breach of this licence.
4.9. You may not use any such information provided by Us to create any software whose expression is substantially similar to that of the Software not use such information in any manner which would be restricted by any copyright subsisting in it.
4.10. You shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Software to become subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any of all of its rights and obligations under these Additional Terms.
4.11. We may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence.
4.12. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
4.13. You shall notify Us as soon as it becomes aware of any unauthorised use of the Software by any person;
4.14. All quantities and other information about Goods generated by the Software following completion by You of an estimate using the Software shall be accessible by Us and we shall supply the same to Your local Jewson branch who may contact You about such Goods and quantities.
4.15. For the purposes of clauses 4.15 and 4.16, “Maintenance Release” shall means any release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version and “New Version” shall mean any new version of the Software which from time to time is publicly marketed and offered for purchase by Us in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
4.16. We will provide You with all Maintenance Releases generally made available to our customers. We warrant that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. Please note that We may update or require You to update Digital Content.
4.17. We warrant that the Software will conform in all material respects to the description on the Website for the period of the Software Subscription (the “Warranty Period“). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defector fault in the Software in consequence of which it fails to confirm in all material respects to the description on the Website, and such defect or fault does not result from You, or anyone acting with authority of You, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than he purpose or context for which it was designed or in combination with any other software not provided by Us, We shall, at Our option, do one of the following:
(a) repair the Software;
(b) replace the Software; or
(c) terminate this licence immediately by notice in writing to You and refund any of the subscription fee paid by You as at the date of termination (less a reasonable sum in respect of Your use of the Software to the date of termination) on return of the Software and all copies thereof, provided You provide all the information that may be necessary to assist Us in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Us to re-create the defect or fault.
4.18. We do not warrant that the use of the Software will be uninterrupted or error-free.
4.19. You accept responsibility for the selection of the Software to achieve its intended results and acknowledge that the Software has not been developed to meet Your individual requirements.
4.20. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
Intellectual Property Rights
4.21. The following definition shall apply in these Additional Terms: “Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
4.22. You acknowledge that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to Us or the relevant third-party owners (as the case may be), and You shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
4.23. We undertake at our own expense to defend You or, at our option, settle any claim or action brought against You alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infridges the UK intellectual Property Rights of a third party (“Claim“) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against You as a result of or in connection with any such Claim. For the avoidance of doubt, clause 4.23 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by You other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by Us if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
4.24. If any third party makes a Claim, or notifies an intention to make a Claim against You, Our obligations under clause 4.23 are conditional on You:
(a) as soon as reasonably practicable, giving written notice of the Claim to Use, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability , agreement or compromise in relation to the Claim without the prior written consent of Us (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving Us and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power of control of You, so as to enable Us and our professional advisers to examine them and take copies (at our expense) for the purpose of assessing the Claime; and
(d) subject to Us providing security to You against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as We may reasonably request to avoid, dispute, compromise or defend the Claim.
4.25. If any Claim is made, or in our reasonable opinion is likely to be made, against You, We may at our sole option and expense:
(a) procure forYou the right to continue to use the SOftware (or any part thereof) in accordance with the terms of this licence;
(b) modify the Software to that it ceases to be infringing;
(c) replace the SOftware with non-infringing software; or
(d) terminate this licence immediately by notice in writing to You and refund any of the Fee paid by You as at the date of termination (less a reasonable sum in respect of the Your use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if We modify or replace the Software, the modified or replacement Software must comply with the warranties contained in clause 4.17 and You shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.
4.26. Notwithstanding any other provision in this agreement, clause 4.23 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
These clauses 4.21 to 4.26 constitute Your exclusive remedy and Our only liability in respect of Claims and, for the avoidance of doubt, is subject to Clause 8 in the Conditions of Sale.
5. YOUR USE OF THE SOFTWARE
5.1. You can download a user guide for the Software via the Software and a link to this is also provided in the Welcome Email. We also provide support via telephone or email during business hours as shown on the Website.
5.2. Your use of the Software means that you accept, and agree to abide by, all the policies in these Additional Terms
5.3. You may use the Software only for lawful purposes. You may not use the Software:
a) In any way that breaches any applicable local, national or international law or regulation;
b) In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
c) To send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards set out below;
d) To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
e) To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
5.4. You also agree:
a) Not to reproduce, duplicate, copy or re-sell any part of our Software;
b) Not to access without authority, interfere with, damage or disrupt:
- any part of our Software
- any equipment or network on which our Software is stored;
- any software used in the provision of our Software.
5.5. These content standards apply to any and all material which you contribute to the Software (“contributions“).
5.6. You must comply with the spirit of the following standards as well as the letter. The standards apply to each part of any contribution as well as to its whole.
5.7. Contributions must not:
a) Contain any material which is defamatory of any person;
b) Contain any material which is obscene, offensive, hateful or inflammatory;
c) Infringe any copyright, database right or trade mark of any other person;
d) Be likely to deceive any person;
e) Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
f) Promote any illegal activity;
g) Be used to impersonate any person, or to misrepresent your identity or affiliation with any person;
h) Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
SUSPENSION AND TERMINATION
5.8. We will determine, in our discretion, whether there has been a breach of these Additional Terms through your use of our Software. When a breach of these Additional Terms has occurred, we may take such action as we deem appropriate.
(a) Immediate, temporary or permanent withdrawal of your right to use the Software and/or the immediate termination of the licence granted to you under clause 4.7;
(b) Immediate, temporary or permanent removal of any posting or material uploaded by you to the Software;
(c) Issue of a warning to you;
(d) Legal proceedings against you for reimbursement of all loss, damage and expenses caused by the breach on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
(e) Further legal action against you; and
(f) Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
5.10. On termination for any reason:
(a) all rights granted to You under this licence shall cease;
(b) all access by You to the Software shall cease, including any access to historical information and/or reports that you have completed using the Software;
(c) You shall cease all activities authorised by this licence; and
(d) You shall immediately pay to Us any sums due to Us under this licence.
5.11. To the extent permitted by law, we exclude liability for actions taken in response to breaches of these Additional Terms. The responses described in these Additional Terms are not limited, and we may take any other action we reasonably deem appropriate.
6.1. Where We supply an estimate (including any or all of the following for example a project breakdown, a material take-off (referred to as a MOTO), a Primary Cost Estimate, a bill of quantities, a work schedule, a client report and/or any reports provided by the Software) (an “Estimate”) for You and there is a conflict between the Additional Terms, the Conditions of Sale and any quotation provided to You, these Additional Terms and the Conditions of Sale shall prevail over any quotation.
6.2. We do not warrant that any Estimates will meet Your requirements. Any Estimates will be solely based on Our interpretation of the information You provide to Us or input into the Software. Where We supply an Estimate or the Software produces an Estimate, we will exercise reasonable skill and care.
6.3. Any Estimate, quotations, designs, drawings or details of dimension/specifications or other information supplied by Us to You will include and be subject to these Additional Terms and the Conditions of Sale.
Clauses 6.4-6.13 are not relevant where you are submitting your information into the Software in order to obtain an Estimate.
6.4. You have the option to select each of the services provided by Us in the ‘Estimating Services’ section of the Website. Samples of what can be expected from each of these services can also be found in the ‘Estimating Services’section.
6.5. Upon receipt from You of the plans and other information (for example, We can customise and amend items to your specific requirements such as labour rates and profit margins) You supply in relation to the project you are seeking an Estimate for, We will review the detail and provide to You by email or text a quote for carrying out the necessary work to produce the Estimate (the “Email/Text”).
6.6. You can place Your order for us to carry out the Estimate by clicking on the link in the Email/Text.
6.7. If you already hold an account with our Jewson, We will charge the Estimate to Your Jewson account or if you do not hold an account with Jewson, We will contact you to take payment over the phone. Alternatively, payment can be made via Your local Jewson branch. Our acceptance of your order will take place when we either receive consent from You to the Payment being placed on Your account (by placing Your order for us to carry out the Estimate, You are consenting to us charging the Estimate to Your account) or you make payment over the phone, at which point a contract will come into existence between You and Us.
6.8. You may vary or cancel the contract You have with Us up until the point that We commence work on it. Once work has been started, a refund cannot be given.
6.9. Following receipt of payment, We will email You to confirm that We have received payment and to provide you with details as to when the Estimate will be ready. We will also contact you to clarify any details we need to complete the Estimate. The Estimate will be drawn up using the drawings/plans and specifications you have provided and a breakdown of what has been calculated for Your project in the form of an Estimate summary will be provided to You by email.
6.10. Please note the following in relation to the Estimate/Estimate summary that we will provide to You:
6.10.1. Should the drawings/plans You provide not include any dimensions, We will have no choice but to scale from the drawings/plans in order to gauge those dimensions.
6.10.2. If no details have been provided by You as to what You want to include for plumbing and electrics and also for any specialist items/fittings such as kitchens, bathrooms and furnishings, we will include provisional sums within the Estimate/Estimate summary to ensure they are allowed for without causing the overall cost of the work to become inaccurate.
6.10.3. Due to a vast array of options in construction there will be elements of projects that cannot be sensibly priced and therefore will either not be included within the Estimate/Estimate summary or a provisional sum will be used, unless We are able to receive a quote from a third party company. This will be used for works such as and not limited to, piled foundations, steel framing, some cladding and some specialist post and frame buildings. This will often include works where a specialist contractor is required.
6.10.4. All Estimates/Estimate summaries created include an eight percent (8%) estimator variables to cover errors and misinterpretation. The estimator variables cannot be removed from any Estimate/Estimate summary created without written/Verbal consent by You.
6.11. When the Estimate summary has been completed it is Your sole responsibility to check the Estimate summary to make sure that all items have been included for by Us and that you are fully happy and in agreement with the Estimate summary (including any provisional sums that have been used).
6.12. It is Your sole responsibility to ensure that the materials and their specifications included in our Estimate summary comply with all Building Regulations and that all building systems and product stated meets Your required standards in relation to both; “building practices” and “warranty/guarantee” requirements.
6.13. If the Estimate summary requires any alterations to meet your expected project cost, please contact the Build Aviator Team who can make the necessary amendments and provide new reports for You by dialling 01359 256159 or emailing details to [email protected].
6.14. You will confirm that You are happy with he final Estimate summary either by email or over the phone (all the telephone calls are recorded) and in doing so, You verify the accuracy of the final Estimate summary. We will supply a final Estimate to You based on the final Estimate summary and our discussions. You will be sent an email informing you that the final Estimate is ready and that it has been based on the plans and information You provided. You will be able to download the fill Estimate report from this email.
6.15. We do not warrant the accuracy of the final Estimate which is based on the information provided by You or submitted into the Software.
7. LIABILITIES, WARRANTIES AND INDEMNITIES
7.1. Subject to Clause 8.1 of the Conditions of Sale, We shall not be liable for any deficiencies in the position, lines or levels or otherwise of any building or structure in relation to which You have provided Us with information to enable Us to provide any Estimate. Any structural items within an Estimate must be checked to ensure they are suitable for requirements. You shall ensure that all requirements for the time being in force are duly complied with by You and any third party consents required are obtained at an appropriate point. We provide no guarantee that the products listed in the Estimate will meet building regulations or other requirements of the local planning authority or other actions, proceeding, costs, claims or demands arising out of any failure by You to comply with Your obligations in this Clause 7.1.
7.2. Any quotation, designs, drawings or details of dimension/specifications or other information supplied by Us to You or produced by the Software are to be treated as approximate and We do not warrant their accuracy.
7.3. We will not be liable for, and shall be indemnified by You against, any and all loss resulting from any inaccuracies or other deficiencies in any Estimate We provide to You where you have verified the content of the relevant Estimate summary or which is produced by the Software, except where We are negligent.
7.4. The Software will allow you to pick product for your project that is incompatible. You therefore must ensure that you check all Estimates and reports produced by the Software for their accuracy and suitability. We will not be liable for any and all loss resulting from such incompatibilities except where We are negligent.
7.5. All Estimates produced by Us are estimates and are not intended to be fixed quotations. We cannot guarantee or accept responsibility for any variations in the actual build cost.
7.6. Any personal data provided by you about your company/personal details will be shared internally with the other Businesses and with our subsidiaries and associated companies where it is in our legitimate interests to do so. We will also share your personal information to third parties where they are relevant to you or your business. For more information please visit https://starkbuild.co.uk/wp-content/uploads/2023/02/Privacy-Statement.pdf
7.7. We accept no liability for any item lost in the post. Any drawings/plans posted to Us using Royal Mail should be full size copies of the originals.
7.8. We may make improvements and changes deemed necessary to the service from time to time without giving you notice.
8. ORDER ACCEPTANCE
8.1. Your order will be accepted when we either email you to accept your order or we deliver the Goods and/or Services and/or the Digital Content to you. The Contract between us is formed at the time we accept your order or we deliver your Goods, commence the delivery of the Services and/or the Digital Content to you. If your order is dispatched in more than one delivery, each dispatch will form a separate Contract covering the Goods delivered under that dispatch. Without affecting your cancellation rights (see below), you can cancel your order for Goods, Services and/or Digital Content at no cost, at any time before we dispatch the Goods and/or commence delivery of the Services and/or Digital Content.
8.2. We may reject an order at any time before we have accepted your order. Orders for the Software or for an Estimate may not be placed by a building surveyor, quantity surveyor (or similar) or by anyone working for a competitor of ours. All orders are subject to availability and we will try to tell you as soon as possible if we can’t supply one or more of the Goods, Services and/or Digital Content that you’ve ordered. If we can’t contact you about these unavailable Goods, Services and/or Digital Content, wherever possible we’ll accept your order and supply alternative products from those we have in stock. If you’ve already paid for the unavailable Goods, Services and/or Digital Content, and do not want to accept alternative products or we are unable to supply alternative products we’ll give you a refund for their purchase price by crediting either your payment card or your account with us (as applicable) or making a refund in branch (where applicable). Where we offer alternative products, this is a suggestion only. You are responsible for determining whether any alternative products offered to you are suitable for the purposes for which you intend to use them.
9.1. We (or our third party courier) will deliver the Goods to you at the address you have given in the checkout process.
9.2. If the products are one-off services. We will begin the Services on the date agreed with you during the order process. The estimated completion date for the Services is as told to you during the order process.
9.3. If the products are a subscription to receive Digital Content (for example the Software), We will supply the Digital Content to you until the subscription expires (unless otherwise terminated in accordance with the Additional Terms).
9.4. Delivery dates are given in good faith, but are estimates only. A member of staff will be in contact before this date to arrange a delivery time which suits you.
9.5. On occasion we may have to change or cancel delivery dates or times at short notice.
9.6. We’ll always try our best to meet the estimated delivery timescales we give you. However, we won’t be held responsible for any failure to deliver your order within the stated timescales, provided we deliver the Goods, supply the Services and/or the Digital Content within a reasonable period. If we can’t deliver your order within this timescale, we’ll let you know and give you the opportunity to either wait for the Goods, Services and/or Digital Content or cancel your order. If you choose to cancel, we’ll give you a full refund including any delivery charges that apply.
10. YOUR RIGHTS
If Goods, Services and /or Digital Content are faulty or delivered damaged, your rights are set out in the Conditions of Sale. If you’re ordering Goods, Services and/or Digital Content from us as a consumer rather than in the course of your business, you may have additional legal rights and nothing in these Terms or Conditions of Sale will affect these rights.
11. PLEASE CONTACT US IF THERE’S AN ISSUE
11.1. If there are any issues with the Goods, Services and/or Digital Content you’ve ordered, please contact us straight away so we can help, contact details are available on the Website. Please have your order number to hand as well as details of the affected Goods, Services and/or Digital Content. If we offer you a refund, this will be credited to either the card used to purchase the affected Goods, Services and/or Digital Content or to your account with us or made as a cash refund via the branch that made the sale to you (as applicable).
11.2. Subject to clause 8.1 in the Conditions of Sale, if defective Digital Content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
12. OTHER IMPORTANT TERMS
If any part of these Additional Terms is found to be invalid or unenforceable then, to the extent that it is invalid or unenforceable, the part in question will be treated as if it has been removed from these Additional Terms. If this happens, the remaining parts of these Additional Terms will continue in full force and effect. We reserve the right to make changes to these Additional Terms in the future without giving notice. Any changes will be posted to the Website and will take effect immediately. These Additional Terms and any Contracts shall be governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
THIRD PARTY SOFTWARE
Cloud2Me – Cloud Hosting Service