Prelim:

We provide software solutions eTool and RapidLCA (collectively known as the Platform) and would like you to use it. The Platform is a suite of design tools for optimising the life cycle environmental and cost impacts of a built asset. We are responsible for maintaining and (hopefully) improving the Platform whilst you (the user) are responsible for how you use it.

Definitions

Access Fee: A fee paid by any user or organisation with the exception of “Specialist Subscribers” for the use of eTool for commercial gain to model a “Structure”. Formally called project fees, updated to reflect projects with multiple buildings and structures.

Commercial Gain: Commercial gain is being paid for by another entity for your work that is aided by eTool, marketing or selling property that is aided by eTool, or conducting sponsored research aided by the use of eTool.

Confidential Information: Any non-public information disclosed by either Party to the other Party pursuant to this Agreement, which is designated as “confidential” or “proprietary” (or with a similar legend), or any Subscriber Data, or any non-public components of the Platform are Confidential Information.

Data: Information required to be entered into the Platform to model and optimise the life cycle environmental and cost impacts of your construction projects.

Design: A design option of a Structure within eTool.

eTool: Our web application for optimising the life cycle environmental and cost impacts of built assets, specifically focussed on complex projects (eg large buildings and infrastructure) where deep modelling configuration is required.

The Platform: Our integrated software platform for optimising the life cycle environmental and cost impacts of built assets. The platform includes the eTool and RapidLCA web applications, plugins to third party software written by us and associated third party APIs used by the platforms.

LCI Data: Generic or product specific environmental life cycle inventory presented in the Platform to enable Impact Assessment, often provided by third parties and licensed at a cost to us.  The LCI Data represents the environmental data for a specific human activity (e.g. Global Warming Impact of the production of 1kg of steel).  There are thousands of LCI Data points in the Platform.

Non-Commercial Gain: Modelling of and reporting on your own building to reduce environmental impacts where the results are not given to third parties and your financial benefits are limited to minimising expenditure whilst maximising environmental benefit, life cycle cost savings that are associated with sustainability initiatives being compared in the Platform, or as a student for educational or unsponsored research purposes.

Organisation: Any entity who accesses the Platform.

Project: One or more Structures, grouped in the Platform, typically being constructed on the same parcel of land.

RapidLCA: Our web application for optimising the life cycle environmental and cost impacts of built assets, specifically focussed on simpler projects (eg low density housing) where streamlined modelling is preferred.

Researcher: A user engaged or employed within a research organisation being an entity, such as university or research institute, irrespective of its legal status (organised under public or private law) or way of financing, whose primary goal is to conduct fundamental research, industrial research or experimental development and to disseminate their results by way of teaching, publication or technology transfer; all profits are reinvested in these activities, the dissemination of their results or teaching; undertakings that can exert influence upon such an entity, in the quality of, for example, shareholders or members, shall enjoy no preferential access to the research capacities of such an entity or to the research results generated by it.

Seat: Allocated to users within organisations giving them the functionality of Enterprise, Specialist or Specialist Hotseat subscriptions.

Services: Use of the Platform and associated services described in “The Services” section.

Structure: A single building, infrastructure asset or part thereof, defined in the software as a “Structure” and defined by the users in the software or specified on a quotation.

Subscriber: A user or organisation.

Subscription: A level of service as defined in the “Subscriptions” section.

Subscription Fee: A periodic payment made by a subscriber to access the software for commercial gain, or to access a Structure in the Platform which was started whist a subscription was active.

User: The person who accesses the Platform.

Terms of Service

The following terms and conditions (“Terms”) govern all use of the Platform website (“eTool”, “RapidLCA”, or “The Platform”) and all content, services, and products available at or through the Platform. Our Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, eTool’s Privacy Policy) and procedures that may be published from time to time by us (collectively, the “Agreement”). You agree that we may automatically upgrade our Services, and these Terms will apply to any upgrades. This agreement is between you, whether personally or on behalf of an entity (“you”) and eTool PTY LTD (“eTool”, “we,” “us” or “our”) of Australia. Please read this Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to become bound by the Terms of this Agreement. If you do not agree to all the Terms of this Agreement, then you may not access or use any of our Services. If these Terms are considered an offer by eTool, acceptance is expressly limited to these Terms. Our Services are not directed to children younger than 13, and access and use of our Services is only offered to users 13 years of age or older. If you are under 13 years old, please do not register to use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older. Use of our Services requires a user account. You agree to provide us with complete and accurate information when you register for an account. You will be solely responsible and liable for any activity that occurs under your username. You are responsible for keeping your password secure.

Your eTool Platform Account

If you create an account on the Platform you are fully responsible for maintaining the security of your account and for all activities that occur under the account and any other actions taken in connection with the account. You must immediately notify us of any unauthorized uses of your account, or any other breaches of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Users or organisations who share account login details are in breach of this agreement.

Term

The term of services applicable to a Structure will be tied to the duration of the design, construction and operation of the Structure. The term commences when a Subscriber creates the new building or infrastructure Structure in the Platform. Unless terminated earlier by either Party as permitted under this Agreement, or due to a breach of this Agreement, the Service term applicable to a Structure will expire upon the earlier of the completion of modelling in the Platform, or a lapse in the Subscribers ongoing Subscription.

The Services

eTool Subscriptions

Subscriptions are offered to Users and Organisations with access to the Platform for the purposes of modelling and optimising the life cycle environmental and cost impacts of a Structure.

Open Use

A legacy plan offered to users who are using the software for non-commercial gain, or who are willing to pay the Access Fees for each Structure they start in eTool. Open Use subscribers have significantly reduced functionality.

Consultant

A Consultant subscription is offered to users who are using the software for non-commercial gain, or who are willing to pay 80% of the Access Fees for each Structure they start in the Platform. Consultant Subscribers are entitled to premium environmental data and modelling functionality, life cycle cost functionality, advanced reporting capabilities, online training, online support resources and email and phone support. Consultant subscribers are eligible for eight hours of online training (delivered through the eTool support site) and may sit the eTool exam at the conclusion of the course.

Researcher

At the sole discretion of eTool, a user who qualifies for the Researcher subscription may receive a 12 month waiver of the Consultant Subscription Fee. Any published data must be reviewed but not necessarily certified by us unless for commercial gain in which case it must be certified. Reviewers must be Researcher Subscribers and trained on the use of the Platform. Publication of reviewed data will be accompanied by a disclaimer and explanation the study has not being certified by eTool, but reviewed by eTool Researcher subscriber and accredited user. Training requires attending the advanced training and have complete the training exam. We reserve the right to terminate a Researcher Subscription if we deem the quality of a review to be inadequate or the user fails the training exam. Researcher subscribers are eligible for eight hours of online training (delivered through the eTool support site) and may sit the eTool exam at the conclusion of the course.

Enterprise

An Enterprise subscription is offered to organisations who are using the software for non-commercial gain, or who are willing to pay 60% of the Access Fees for each Structure they start in the Platform. Enterprise Subscribers must maintain at least four paid Enterprise user seats (which may be allocated or unallocated to users) and are entitled to collaboration, advanced control of business intellectual property generated in the Platform, premium environmental data and modelling functionality, life cycle cost functionality, premium reporting capabilities, branded reports, online training, online support resources and email and phone support. Enterprise Subscribers are eligible for eight hours of online training (delivered through the eTool support site) and may sit the eTool exam at the conclusion of the course. Enterprise subscribers may allocate unlimited “read-only” seats to other eTool Subscriber for the purposes of providing read-only access to their Structures to any other eTool user.

Enterprise Seats may be rotated between users to preserve the organisation’s intellectual property when users leave an organisation’s employment or contract. The organisation is provided with one admin user per paid seat to facilitate the allocation of seats between the organisation’s users.

Organisations with specialist subscriptions are also granted 5 Read Only seats.

Specialist

A Specialist subscription is offered to users who are using the software for non-commercial or commercial use and are not subject to Access Fees. Specialist Subscribers are entitled to premium environmental data and modelling functionality, life cycle cost functionality, premium reporting capabilities, branded reports, online training, online support resources and email and phone support. Specialist subscribers are eligible for eight hours of online training (delivered through the eTool support site) and may sit the eTool exam at the conclusion of the course.

An organisation may waive the minimum Enterprise seats required if at least one user is a Specialist Subscriber and providing the Organisation has at least one Specialist Subscriber they will also qualify for all Enterprise Subscriber functionality. Specialist subscribers that collaborate with other users on a Structure may be subject to Access Fees unless the collaborators are also Specialist Subscribers, or minimise their effort in the study to less than 20 added or edited Design elements. We will warn users in the system if an action will forfeit the Specialist Subscriber Access fee waiver.

Specialist Seats may be rotated between users to preserve the organisation’s intellectual property when users leave an organisation’s employment or contract. The organisation is provided with one admin user per paid seat to facilitate the allocation of seats between the organisation’s users.

Organisations with specialist subscriptions are also granted 5 Read Only seats.

Specialist Hotseat

Specialist Hotseat subscription have identical terms to the Specialist subscription with the following are exceptions:

• Automatic seat allocation upon initiation user session
• Unlimited admin seats to facilitate allocation of seats
• When five Specialist Hotseats are purchased BYO Seat functionality is enabled allowing external license holders to work within the organisation’s eTool account without utilising an organisation subscription
• Unlimited Read Only Seats
• Advanced support during account setup

eTool Access Fees

Open Use, Consultant, Researcher and Enterprise Subscribers are subject to Access Fees for any Structure in eTool that is for Commercial Gain. The Access Fee will be quoted by us upon request, or generated automatically within eTool. Upon creating a Structure in eTool a user has seven days to pay the Access Fee after which time we may suspend access until the payment is received. Access Fees entitle the user to use the software for commercial gain in relation to the Structure they defined at the time the Access Fee was quoted. If a discount was applied to the Access Fee due to a Subscription level, the user must maintain that same Subscription to continue using the application, or pay the full Access Fee (or reduced discount Access Fee associated with their new Subscription).

RapidLCA Access Fees

RapidLCA access fees are paid by users to access RapidLCA. These fees are based on project specifics (eg number of dwellings for a residential project) and may be paid for in advance by invoice and bank transfer, or on demand at the time of modelling by credit card.

Design Certifications

Specialist Subscriptions and paid Access Fees also entitle the user to an eTool Certification. The eTool Certification will be conducted by a suitable qualified user (Certifier) with the intent of providing an ISO 14044 compliant independent review of the LCA study to the extent this is possible given the manner of the LCA study and the Subscriber’s modelling in eTool. The Certifier cannot directly edit your model but will document suggested improvements to your model and determine, in their view, if you have passed set criteria relating to the ISO 14044 standard. They will deliver interim and final Certification Review Reports summarising their findings. Certification is optional but highly recommended to ensure your modelling is accurate enough to be reliable and transparent enough to be repeatable thereby protecting the reputation of the user’s organisation and us. Should you choose not to certify your model automatic reports generated from eTool will maintain the uncertified warning watermarks and the model will have limited reporting functionality. eTool results that are made available to the public must be accompanied by a certified eTool LCA report.

eTool Certification Rating

eTool maintains a simple environmental performance rating that culminates the life cycle performance of the building in a single score and rating. To ensure the eTool Certification Rating remains highly regarded certain transparency requirements are attached to the rating. Should users wish to pursue this rating they must allow us to produce a publicly available web page which summarises the performance of the building, the key design strategies employed that enabled the performance, the address of the Structure, the key designers, developers and builders, the Subscribers who modelled the performance in eTool, the Subscriber who certified the Design and a link to a full LCA report that confirms the building’s performance, and a mechanism for visitors who visit the page to share the information via professional and social media platforms. These measures protect the integrity and reputation of your rating as well as that of other eTool users.

Subscriber Data

By using the Platform certain data and design documentation will be uploaded and entered into The Platform. The Subscriber retains all of their right, title and interest in and to its Data, and ownership of such Data shall not be transferred to eTool under this agreement. Subscribers grant us a nonexclusive license to use Data to deliver Services to authorized users of the Platform, solely in connection with the Structure and further grants us a non-exclusive, worldwide, perpetual license to use usage data (such as, by way of example and not by way of limitation, aggregated and / or averaged Structure performance information) in an aggregated form that does not identify individual persons or organizations, in order to compile statistics regarding life cycle environment and cost impacts, report on the Platform usage and/or to improve the Services. If the subscription is cancelled all models will no longer be available to the subscriber or organisation. If the subscriber wishes to maintain a record of models, the reports need to be generated prior to cancelling. Upon termination of the Services, we will retain the subscriber’s Data for a minimum of 12 calendar months from the date of termination after which time we will not be liable for any damages of any kind in connection with its decision to not retain Data. Subscribers warrant that they have appropriate and sufficient rights in relation to the Data, and neither eTool’s use, processing and/or storage of the Data in accordance with this Agreement nor the Subscribers use of Data will violate applicable laws or this Agreement. We are not obligated to screen Data but may suspend access to the Platform or terminate this agreement if the ultimate owners of the Data notify us that a Subscriber has insufficient rights to upload data into the Platform. We are not liable for any damage or loss caused by our decision to suspend access. The subscribers are entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, usefulness, timeliness and completeness and lawfulness of the Data and its use. That is the case regardless of what form the Data takes, which includes, but is not limited to text, documents, photo, video, audio, or code.

LCI Data

The Platform uses third party LCI Data to enable Life Cycle Impact Assessment. The third party data may be generic LCI Data or product specific LCI Data.  The LCI Data may be publicly available or commercially licensed to us at a cost.  We aim to provide a single solution in which data and software are wholly included without additional costs to users for accessing different data sources etc.  We will explicitly inform users that they are required to pay for the additional LCI Data prior to releasing that data to them.  We cannot warrant the accuracy of the third party LCI Data however our Quality Management system does require professional management of suppliers and associated risks.  Users must agree and adhere to the user agreements provided by third party LCI data suppliers listed below:

EcoInvent data: End User Licence Agreement (EULA) for ecoinvent Database and ecoinvent Datasets

Service Levels

The Platform is a cloud based web application that is supported by us. We aim to achieve a very high level of service as defined in the “Service Level Targets” table (the Service Level Targets). Where we fall short of the Service Level Targets, at the request of the Subscriber, we will refund the Subscriber the lessor of:

• The total Subscription payments received by us from the Subscriber, and
• The Subscription payments received by us from the Subscriber for and relating to the time period between the time the Subscriber reported the incident and the time the incident was resolved less the allowable time to resolve the incident as per the “Incident priority levels & resolving time per priority level” section.

Access License fees will not be refunded due to underperformance against the Service Level Targets. Subscribers will not be expected to pay a premium for over performance against the Service Level Targets.

  

Payments

The Subscribers will pay Subscription and Access Fees fees in accordance with the following terms of payment:

• In advance or in accordance with the terms specified in the quote,
• By credit card for monthly Subscription fees or bank transfer for annual Enterprise or Specialist Subscription fees and Access Fees, or
• On or before the due date of the payment which will be specified in the invoice or during the online transaction.

Each party will pay the taxes they are legally required to pay. Unless otherwise specified by eTool, all amounts specified to be paid under this Agreement shall be in US Dollars for Subscription payments, and Australian Dollars, US Dollars, British Pounds Sterling or Euros for Access Fees.

Services Delivered in Advance of Payment

eTool may offer services in advance of payment to ensure a seamless user experience. For example, modelling of a Structure may be started in eTool before a payment is received to ensure Subscribers can meet their deadlines. In the case that payments are not received in advance of services, we reserve the right to:

• Recover any costs related to managing overdue accounts and, in the case of overdue accounts, charge a monthly overdue account fee and interest on overdue amounts at a rate of 25% per annum (or, if less, the maximum amount permitted by applicable law) and such interest shall accrue daily, be calculated weekly and compounded monthly; or
• Suspend the Services until such time that overdue amounts are paid.

If the Subscriber in good faith disputes the whole or any part of an invoice submitted by eTool, the Subscriber will pay the part of the invoice which is not in dispute and will notify us of the reasons for disputing the remainder of the invoice in writing on or before the 14th day following delivery of the invoice. If the Subscriber fails to notify us by the foregoing deadline, the Subscriber is deemed to have accepted the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Subscriber will pay the amount finally resolved.

Subscription Payments

Unless you notify us before the end of the applicable subscription period that you want to cancel your Subscription, your Subscription will automatically renew and you authorise us to collect the then-applicable annual or monthly subscription fee for such Subscription (as well as any taxes) using any credit card or other payment mechanism we or our payment processor have on record for you. Subscriptions can be canceled at any time in the User Profile section of eTool. Subscription Fees may be changed with advance notice of three months. We may end the Services if a Subscriber objects to the change in fees.

eTool Access Fee Payments

eTool Access Fees fees will be paid prior to the commencement of modelling in eTool unless otherwise agreed and we may suspend services should the Access Fees become overdue.

RapidLCA Access Fee Payments

RapidLCA Access Fees fees will be paid prior to the commencement of modelling or during modelling in RapidLCA unless otherwise agreed and we may suspend services should the RapidLCA Access Fees become overdue.

Monitoring and Acceptable Use

The Platform is intended to be used for optimising the life cycle environmental and cost impacts of Designs and we reserve the right to suspend the Services for Subscribers who otherwise use the the Platform. The Platform collaborative and we encourage the sharing of building information through the Libraries however Subscribers must ensure that their communications within the Platform and their Data :

• Does not cause offence to other users;
• Does not breach copyright;
• Is lawful, and
• Is free of viruses and security threats.

The following use of the system is prohibited:

• Use of the Platform that compromises the integrity of the system including but not limited to probing, scanning, or testing the vulnerability of any system or network that hosts our Services
• Attempting to overwhelm our infrastructure by unreasonably loading our systems
• Consuming unreasonable amounts of storage in a way that’s unrelated to the purposes for which the Platform was designed
• Reverse-engineering, tampering or hacking our services, attempting to gain unauthorised access or circumventing security or authentication measures
• Sharing Subscriber account details so other users may access the service

eTool may monitor Subscribers use of the Platform to ensure compliance with this Agreement and suspend or terminate the services if Subscribers are found to be in breach.

Confidentiality

Both Parties acknowledge that Confidential Information disclosed by either Party pursuant to this Agreement may constitute valuable trade secrets of the disclosing Party. Each Party agrees to use the other Party’s Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, such Confidential Information to any third party, without the disclosing Party’s prior written consent. Each Party shall use strict measures to protect the secrecy and avoid disclosure or unauthorised use of the other Party’s Confidential Information. Notwithstanding the above, neither Party will be in breach of this provision in circumstances where the Party is lawfully required to disclose the other Party’s Confidential Information, where the information is already in the public domain, or is already in the disclosing Party’s possession without a duty of confidentiality at the date of disclosure and we will not be in breach of this provision should they use Subscriber Data as outlined in the Subscriber Data section, or if a Subscriber chooses to disclose their Confidential Information by way of features designed to share information between users, within exportable reports or publicly available Design / Structure summary pages.

Privacy

eTool maintains a Privacy Policy which specifies why we collect personal information, and how we use that data which will determine, the extent permissible by law how we maintain your privacy. We may communicate with Subscribers regarding the Platform administration, support and use. Subscriber Data including personal information may be transferred to countries within which we operate subject to applicable laws and this Agreement for the purposes of maintaining and developing the Platform, and communicating with Subscribers.

Intellectual Property Rights

We own all rights, titles and interests associated with the Platform, including all Intellectual Property Rights, and any Materials or software or other inventions that may be developed or discovered by us in connection with the Services.

Warranties and Disclaimers

eTool warrants to the Subscriber that it will use reasonable professional skill and care, consistent with industry standards, in providing all Services. Notwithstanding the above, The life cycle environmental and cost predictions in the Platform by their very nature, cannot be exact. It is not feasible to identify and calculate all the contributing environmental (or cost) impacts associated with a product or service back through history, let alone do this accurately. Generic cost and environmental impact coefficients do not necessarily correspond to those of individual brands of the same product or service due to differences within industries in the way these products and services are delivered. We cannot warrant or guarantee the accuracy of environmental or cost performance predictions for the above reasons. To the extent permitted by law, we do not warrant or guarantee:

• That the services will be error-free
• That the services will be without interruption
• The quality and fitness of the Service for a particular purpose

The Subscribers assume all responsibilities for selecting the Platform to achieve its intended results, for the use of results obtained from the Platform and for taking measures to prevent unauthorised access to their account. Where we are legally obligated to provide guarantees or obligations, our liability in respect of any claim is limited to either supplying the services again, or refunding all or part of the fees paid commensurate with the failure of the guarantee or warranty.

Limitation of Liability

eTool to the extent permitted by law will not be liable for any exemplary, punitive, indirect, special, consequential loss, loss of profit, interest, revenue, business goodwill or anticipated profit, or any loss of or damage to User Data or loss of or interruption to Subscriber’s business arising out of, or in any way connected to the services of other use of the Platform. If a claim is made, regardless of the nature of the claim, eTool’s liability in connection to a claim will not exceed the total Access Fees and Subscription Fees relating to the claim paid by the Subscriber.

Indemnity

eTool Indemnifies Subscribers who use the Platform as authorised by this Agreement against claims made by third parties against Subscribers relating to infringement of Intellectual Property rights of the third party. The Subscriber Indemnifies us against claims made by third parties against us relating to a Subscriber breaching any law or regulation in its use of the Platform, or Subscriber misuse of Data, Personal Information or infringement of the third parties intellectual property rights. We will have no liability for infringement claims arising from:

• Using the Platform in combination with other software or services not provided by eTool,
• Any modification of the Platform in part or whole by anyone other than eTool, or
• An incident occurring after we notify a Subscriber that continued use may subject the Subscriber to an infringement claim.

If a third party claim is made against either Party, the Party’s may choose to defend or settle the third party claim but neither party will be liable to costs or expenses incurred by the other party unless agreed prior.

Suspension and Termination

Either party may suspend or terminate the Agreement in the event that the other Party commits a material breach of this Agreement and fails to remedy the breach within a reasonable time frame. Upon termination the Subscriber must cease to use the Platform and at eTool’s request return or destroy any Confidential Information owned by eTool. Termination does not remove an obligation to pay outstanding Fees owed to eTool. Relevant sections of this Agreement will survive termination.

Governing Law

This Agreement is governed by the laws of the State of Western Australia, Australia and the Parties submit to the exclusive jurisdiction of the state and federal courts located in the State of Western Australia, Australia and any court that may hear appeals from any of those courts, for any proceedings initiated or pursued in connection with this Agreement, and waive any right they may have to claim that those courts are an inconvenient forum.

Dispute Resolution

If a dispute arises both parties are obligated to:

• Notify the other party detailing the nature of the dispute
• Make efforts to resolve the dispute in good faith
• Escalate the dispute to the respective Chief Executive Officers (or equivalent top ranking management officer, or their nominees excluding external counsel) who will make efforts to resolve the dispute in good faith
• Delay filing of actions until the above actions are taken

Severability

If any provision or part of a provision of this Agreement is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from the Agreement and does not affect the validity and enforceability of any remaining provisions.

Notifications

The Platform uses in application notification and emails to communicate with users regarding some commercial matters, for example:

• Receipts for subscription payments
• Invoices for Access Fees
• Reminders for subscription payments and Access Fees
• Notification of suspension or termination of services

Subscribers accept that we may communicate to them via email for these critical communications and commit to whitelisting our domains (cerclos.com, etool.app, etoollcd.com, etoolglobal.com, etool.net.au, rapidlca.com and rapidlca.app) such that communications and information therein are made available to Subscribers.