Thank you for choosing By-Law Builder, the platform where you can draft, register and view by-laws for strata schemes in Australia. The following are the conditions under which By-Law Builder is made available for use by you.
© COPYRIGHT RESERVED (2020)
This system, and the by-laws it produces, is subject to copyright and other intellectual property rights owned by Stratavine Pty Ltd (ACN 625 729 071), an Australian company. Reproduction, copying, reverse engineering or using in any way other than its intended use is strictly prohibited.
Joining and Using By-Law Builder
When you see a word in bold, it will have the same corresponding meaning every time it is used within these terms.
- You and By-Law Builder: When we say you or your, we mean both you and any entity or firm you are authorised to represent. When we say By-Law Builder, we, our or us, we’re talking about the entity which owns the platform, you contract with and pay fees to which is Stratavine Pty Ltd, an Australian company (ACN 625 729 071).
- The right to use our services: As a user, on payment of fees due and ongoing compliance with conditions set out in this agreement, we grant you and the Owners Corporation you represent a single use, non-exclusive licence to use our platform (based on your account type, your user role and the level of access you’ve been granted) for as long as your role with the Owners Corporation remains valid or until your access is terminated or transferred to another user.
- Our platform: Our platform consists of all the services we provide now or in the future, including our online by-law generation and registration system.
- Our by-laws: Our platform produces both individual by-law clauses and complete by-law documents (by-laws). We own the copyright over all by-laws generated by our platform.
- Creating an account: When you create an account to use our platform and accept these terms, you become a user. A user can have different roles and must be assigned to an Owners Corporation. Multiple users can be assigned to an Owners Corporation and may include a committee member or owner of an Owners Corporation or a service provider authorised to represent an Owners Corporation such as a managing agent, law firm, developer or building manager. As a user you may or may not have to pay fees. If you order a service that attracts a fee, you are the one responsible for paying for those services.
- Owners Corporations: An Owners Corporation means an owners corporation, body corporate or any similar entity, corporate or incorporate, constituted as a consequence of, or following, a common interest subdivision of buildings or land. A user can be assigned to one or more Owners Corporations.
- Your responsibilities: When using By-Law Builder, you must keep your information on our platform (including a current email address) up to date. You’re responsible for providing true, accurate and complete information for all Owners Corporations you create on the platform and for verifying the accuracy of any information that you use from our platform for your legal and strata compliance obligations. You’re also responsible for protecting your username and password from getting stolen or misused. Our platform has minimum password standards but you are responsible for ensuring that passwords are strong and not easily guessed. You must immediately notify us if you cease to be qualified to use our platform in your current capacity ,or if your password is compromised or stolen. You will also comply with all relevant laws, regulations and directions.
- Free services: When you first sign up, you can opt to draft your own by-laws (for which there is no charge). If you then decide to acquire one of our additional products or services, you will be billed when you add your billing details into our platform.
- By-Law Builder pricing: Your use of our services generally requires you to pay a one-off fee for certain services. Some users may pay a monthly subscription fee based on your account type. Both one-off fees and subscription fees are referred to as fees. Our fees may vary by region. We may update or amend our fees from time to time. If we do this, the updated fees will be available on the platform. Depending on your region, fees may be inclusive or exclusive of transactional or value added taxes where relevant (like GST), which will be outlined on the payment page in our platform.
- Taxes for your use of our platform: You’re responsible for paying all other external fees and taxes associated with your use of our platform wherever levied. Your responsibility includes withholding tax if it applies, unless we already process that withholding tax as part of the transaction.
- Money back guarantee: if you are not satisfied a by-law which you have paid for in the platform, we will provide a full refund of the fees you have paid for the purchase of the by-law subject to the following conditions:
- you must notify us as soon as possible that you are not happy with the relevant by-law you have purchased in our platform (and not later than 30 days after your purchase);
- you must allow us a reasonable opportunity to address any concerns or issues you have with the relevant by-law prior to issue of any refund;
- if a refund is provided you must not:
- use, license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the by-law for which a refund has been provided.
- copy, reproduce, alter, adapt, modify, transmit or make derivative works based upon the by-law for which a refund has been provided.
Data use and privacy
- Use of Data: When you enter or upload your data into our services (“data”), we don’t own that data but you grant us a non-revocable licence to use, copy, transmit, store, analyse, and back up all data you submit to us through our platform, including personal data of yourself and others, to: enable you to use our platform; allow us to improve, develop and protect our platform; create new products and services; communicate with you about your account; and send you information we think may be of interest to you based on your marketing preferences.
- Anonymised statistical data: When you use our platform, we may create anonymised statistical data from your data and usage of our platform, including through aggregation. Once anonymised, we may use it for our own purposes or share it with others, such as to provide and improve our platform, to develop new products or services, to identify business trends, and for other uses we communicate to you.
- Publicly available information and data: we have the right to use and share data and information with others about the Owners Corporation which is otherwise publicly available information, such as on a land registry website or other publicly accessible platform.
- Data breach notifications: Where we think there has been unauthorised access to personal data inside your account, we’ll let you know and give you information about what has happened. Depending on the nature of the unauthorised access, and the location of your affected contacts, you may be required to assess whether the unauthorised access must be reported to the contact and/or a relevant authority. We think you’re best placed to make this decision, because you’ll have the most knowledge about the personal data stored in our platform.
- Confidential information: While using our services, you may share confidential information with us, and you may become aware of confidential information about us. You and we both agree to take reasonable steps to protect the other party’s confidential information from being accessed by unauthorised individuals. You or we may share each other’s confidential information with legal or regulatory authorities if required to do so.
- Security safeguards: We’ve invested in technical, physical and administrative safeguards to do our part to help keep your data safe and secure. While we’ve taken steps to help protect your data, no method of electronic storage is completely secure and we cannot guarantee absolute security. We will notify you if there appears to be unauthorised access to your account and we may also restrict access to certain parts of our platform until you verify that access was by an authorised user.
- Playing your part to secure your data: You have an important part to play by keeping your login details secure, not letting any other person use them, and by making sure you have strong security on your own systems. If you realise there’s been any unauthorised use of your password or any breach of security to your account or email address linked to your account, you need to let us know immediately.
Maintenance, downtime and data loss
- Availability: We strive to maintain the availability of our platform and provide online support during business hours. On occasion, we need to perform maintenance on our platform, and this may require a period of downtime. We try to minimise any such downtime. Where planned maintenance is being undertaken, we’ll attempt to notify you in advance but can’t guarantee it.
- Access issues: You occasionally may not be able to access our platform and your data due to internet connectivity issues. This might happen for any number of reasons, at any time.
- Data loss: Data loss is an unavoidable risk when using any technology. You’re responsible for maintaining copies of your data entered into our platform.
- No compensation: Whatever the cause of any downtime, access issues or data loss, your only recourse is to discontinue using our platform.
- Modifications: We frequently release new updates, modifications and enhancements to our platform, and in some cases discontinue features. Where this occurs, we’ll endeavour to notify you where practical (for example, by email or within our platform when you log in).
- What you must not do: When you use our platform, you must not, and must not procure or collaborate with others to:
- License, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party our platform, which includes our by-laws.
- Copy, reproduce, alter, adapt, modify, transmit or make derivative works based upon our platform or the by-laws.
- Reverse engineer or access our platform or use it in any way to build a competitive product or service or a product or services using similar ideas, features or functions of our platform.
- Interfere with or disrupt the integrity, security or performance of our platform, computing systems or networks.
- Use our platform in any way that might impair functionality or interfere with other people’s use.
- Introduce or upload anything to our platform that includes viruses or other malicious code.
- Share anything that may be offensive, violates any law, or infringes on the rights of others.
- Send spam or otherwise duplicative or unsolicited messages in violation of applicable
- Provide links, including blind or hidden referral links, to businesses or pages with
- Commit fraud or other illegal acts through our platform.
- Do anything that restricts or inhibits the use of the platform by any other
- What happens if you breach these obligations: If you breach any of the obligations in clause 28, we may remove any offending material from our platform and take any other action, including legal action against you. This includes terminating or suspending your licence to access our platform and claiming damages for breach of the terms of this user agreement.
- Subscription period: Only some users will subscribe to our platform on a monthly, quarterly or annual subscription. In this case, your subscription continues for the period covered by the subscription fees paid or payable. At the end of each billing period, these terms automatically continue for a further period of the same duration as the previous one, provided you continue to pay the subscription fee in accordance with the pricing plan you have selected. You may choose to terminate your subscription at any time by providing one month’s written notice in advance. You must pay all relevant subscription fees up to and including the day of termination.
- Termination by us: We may choose to terminate your account at any time by providing you with one month’s written notice in advance. We are not required to provide you with reasons for the termination. We may also terminate or suspend your account or access to all or any data immediately if:
- you breach any of these terms and do not remedy the breach within 14 days after receiving notice of the breach,
- you breach any of these terms and the breach cannot be remedied,
- you fail to pay your fees, or
- you or your business become insolvent, your business goes into liquidation or has a receiver or manager appointed over any of its assets, you become insolvent or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction.
We reserve the right to immediately terminate your account and right to access the platform (either permanently or temporarily) if we believe that you are not using the platform in good faith and for its intended purpose.
- No refunds or compensation: No refund or compensation is due to you if you terminate your account or subscription or we terminate it in accordance with these terms.
- Retention of your data: Once an account or subscription is terminated by you or us, it is archived and the data submitted or created by you is no longer available to you. We retain it for a period of time consistent with our data retention policy, during which, as a user, you can reactivate your account and once again access your data by paying the fees.
- Transfer of data: You acknowledge that your role with an Owners Corporation may cease (for example, you no longer own a unit in a strata scheme or your company no longer manages an Owners Corporation). In these circumstances, we may transfer data submitted or created by you to another person or entity that has a legal right to access that data for the relevant Owners Corporation.
Liability and indemnity
- You indemnify us: You indemnify us against all losses, costs (including legal costs), expenses, demands or liability that we incur arising out of, or in connection with:
- a third-party claim against us relating to your use of our platform (except as far as we’re at fault);
- any information you provide that is not accurate, complete or is misleading;
- any breach of these terms by you, your employees, contractors or agents.
- Limitation of liability: You and we agree that the following limitations on our liability under these terms apply:
- Any condition or warranty that is implied by any law in this agreement is hereby excluded, but this does not exclude, restrict or modify any condition, warranty or liability which may at any time be implied by the Competition and Consumer Act 2010 (Cth), The Australian Consumer Law, within the meaning of that Act, or any other law where to do so is illegal or would render any provision of this agreement void;
- If we become liable for breach of a guarantee implied by Sub-Division B of Division 1 of Part 3-2 of The Australian Consumer Law or under similar legislation, our liability is limited to any one or more of the options listed in section 64A of that Law as we in our sole discretion consider relevant and appropriate;
- We are not liable to you, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, business or anticipated savings, nor for any indirect or consequential loss or damage or for any destruction of data;
- Our liability to you in contract, tort (including negligence) or otherwise in relation to these terms is limited in the aggregate to the fees paid by you for use of the platform during the 12 months prior to any cause of action arising; and
- as we provide infrastructure to manage information and we do not create the data ultimately to be used by you, we will not be liable or responsible in any way to you or any third party (such as an Owners Corporation) for data entered or created by you or anyone you
- Disclaimer of warranties: Our platform is made available to you on an “as is” basis. Subject to the consumer law terms in clause 36, we disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability and fitness for a particular purpose.
- Consumer laws: In some places, there may be non-excludable warranties, guarantees or other rights provided by law (non-excludable consumer guarantees). They still apply – these terms do not exclude, restrict or modify them. Except for non-excludable consumer guarantees and other rights you have that we cannot exclude, we’re bound only by the express promises made in these terms. Our liability for breach of a non-excludable consumer guarantee is limited, at our option, to either replacing or paying the cost of replacing the relevant service (unless the non-excludable consumer guarantee says otherwise).
- Disputes: All disputes arising between you and us out of or related to our relationship or these terms, including any question regarding its existence, validity or termination, shall be dealt with as follows:
- in the first instance the dispute shall be referred to the chairman or principal of each of the parties who shall within 7 days of such referral meet with a view to finding a mutually agreed resolution to the dispute; and
- if such meeting fails to resolve the dispute and either party issues a written notice to the other within 14 days of the meeting to refer the dispute for arbitration under the Rules of The Institute of Arbitrators and Mediators Australia, then the dispute will be the subject of arbitration under those rules, which rules are deemed to be incorporated by reference into this clause.
Neither party shall commence legal proceedings before delivery of the decision of an arbitrator and pending submission to arbitration and thereafter until the delivery of the decision of the arbitrator, the parties shall, as far as may be possible, continue to perform all their obligations under these terms, unless your account has been terminated and these terms don’t apply.
- Change of these terms: We may, acting reasonably, change these terms at any time. Generally, we endeavour to provide you with 30 days’ notice of material changes before they become effective, unless we need to make immediate changes for reasons we don’t control. When we notify you, we’ll do it by email or by posting a visible notice on our platform. If a change isn’t material, we may not notify you. If you find a modified term unacceptable, you may terminate your account or subscription by giving the standard advance notice to us.
- No professional advice: By-Law Builder is not a professional services or legal firm and is not in the business of giving any kind of professional or legal advice.
- Legal Services: By-Law Builder does not provide legal advice or services. You acknowledge that by using the platform and by-laws obtained from the platform you are not obtaining or purchasing legal advice or services from By-Law Builder. You may use By-Law Builder as a portal to request to purchase legal services from Bugden Allen Lawyers. Such legal services will be subject to a separate agreement with Bugden Allen Lawyers for additional costs to be disclosed in such agreement.
- Use of by-laws: We make no warranties that any by-laws obtained from our platform are suitable for use by your Owners Corporation. You are responsible for reviewing your existing by-laws (if any) and ensuring that any new by-laws obtained from our platform are suitable to be used for your particular Owners Corporation and in conjunction with any existing by-laws. If you are unsure we recommend you seek legal advice. Such legal services can be purchased separately from Bugden Allen Lawyers through the platform or from your own legal adviser.
- Force majeure: A party is not liable for any delay or failure to perform their obligations pursuant to these terms if such delay or failure is due to Force Majeure. If a delay or failure by a party to perform their obligations is caused or anticipated due to Force Majeure, the performance of all other obligations will be suspended. In this clause ‘Force Majeure’ is an event or circumstance which is beyond the control and without fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent.
- Applicable law: The relationship created by these terms is governed by the laws of the State of Queensland, Australia, and the Commonwealth of Australia and you and we agree submit to the jurisdiction of the Courts of that State and Commonwealth.
- Service of Notices: If we need to serve a notice on you, or otherwise communicate with you, we will do so via e-mail or by broadcast via the platform. You will be deemed to have received our notice or communication 24 hours after it is transmitted by us, unless, in the case of an e-mail, we receive a notice of non-delivery of the e-mail. However, it is your responsibility to ensure that we always have your current e-mail address.
- Severance: If any clause, paragraph or sentence of these terms is found to be invalid, void or unenforceable, the remaining provisions of the terms will continue in full force and effect.
- Interpretation: Words like ‘include’ and ‘including’ are not words of limitation and where anything is within our discretion we mean our sole discretion.