Terms and Conditions

Smart Overlay · smartoverlay.com.au · Hart Digital Pty Ltd · ABN: 76 696 566 195 · Last updated: 18 April 2026

Welcome to Smart Overlay. We are Hart Digital Pty Ltd, an Australian business with ABN 76 696 566 195 (“we”, “our” or “us”) and we provide a cloud-based software platform for the Australian construction industry that enables construction professionals to quickly identify changes between two revisions of engineering or architectural drawing sets, known as Smart Overlay, as described on our Website (Platform).

These terms and conditions (Terms) govern your access to the Platform and our provision of any Subscription, free trial, or demo access to the Platform, and any other goods and services as set out in these Terms. You can view the most updated version of our Terms at https://smartoverlay.com.au/ (Website). Please read these terms and conditions carefully before agreeing to proceed with your Subscription.

Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website (Subscription Tier).

Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 15. Please ensure you contact us if you want to cancel your Subscription.

Reading and Accepting These Terms

In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.

By clicking the tick box below or clicking the “I accept these Terms” button on our Website, paying for your Subscription or otherwise accepting the benefit of any part of your Subscription, you agree to be bound by these Terms which form a binding contractual agreement between you (the person acquiring a Subscription or the company you represent and are acquiring the Subscription on behalf of) (“you” or “your”) and us.

We may change these Terms at any time by notifying you in accordance with these Terms, and your continued use of the Platform following such an update will represent an agreement by you to be bound by the Terms as amended.

1. Eligibility

By accepting these Terms, you represent and warrant that:

you have the legal capacity and authority to enter into a binding contract with us; and
you are authorised to use the payment you provided when purchasing a Subscription.

The Platform is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Platform. By using the Platform, you represent and warrant that you are either:

over the age of 18 years; or
accessing the Platform on behalf of someone under the age of 18 years old and consent to that person’s use of the Platform.

Please do not access the Platform if you are under the age of 18 years old and do not have your parent or guardian’s consent, or if you have previously been suspended or prohibited from using the Platform.

If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Platform on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

2. Duration of Your Subscription

Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continue for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 15.

Subject to clause 2(c), upon expiration of the Subscription Period, this agreement will automatically and indefinitely renew on an ongoing basis for subsequent periods equal to the Subscription Period (Renewal Period).

This agreement will automatically renew on expiry of the Subscription or Renewal Period (Renewal Date), unless either party provides written notice of cancellation:

for monthly subscriptions, at any time up until 11:59pm on the day immediately prior to the Renewal Date; and
for annual subscriptions, at least 7 days prior to the Renewal Date.

We will provide you with advanced written notice of the agreement renewing and any applicable changes to the Fees or these Terms (Renewal Notice) at least 7 days prior to the expiry of the Renewal Date for annual subscriptions. For monthly subscriptions, no Renewal Notice will be provided.

3. Platform

3.1 Scope of Your Subscription and the Platform

We will provide you, to the extent described in your Subscription Tier, the Platform and the Documentation.

Your Subscription includes the benefits and limitations of your Subscription Tier as set out on our Website, or as otherwise communicated to you when you subscribe for your Subscription (and as amended from time to time by notice to you).

3.2 Accounts

(Accounts) To use the Platform, you may be required to sign-up, register and receive an account through the Platform or the Website (an Account).

(Provide Information) As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing address, mobile phone number, profile information, payment details, and other information as determined by us from time to time.

(Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.

(Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.

3.3 Disclaimer

You acknowledge and agree that:

any information provided to you as part of or in connection with the Platform is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice;
the Platform is a visual comparison and document processing tool designed to identify and display differences between uploaded drawing revisions, and does not interpret, analyse, or assess the significance of any outputs;
the Platform does not provide engineering, architectural, construction, or any other professional advice of any kind;
the Platform does not produce cost estimates, variation claims, or contractual documentation;
the Platform does not replace your professional judgment, and you are solely responsible for reviewing, verifying, and acting on any outputs generated by the Platform;
the Platform does not guarantee that all differences between two drawings will be detected in every case, and output quality may vary depending on factors including the resolution, format, quality, and complexity of the source drawings;
all outputs are provided for visualisation and comparison purposes only and must not be relied upon as a substitute for professional review or due diligence;
the Platform may utilise artificial intelligence technologies (AI) in limited circumstances as part of its functionality, however AI is not a core feature of the Platform. Where AI is used, it is employed to enhance efficiency and quality but is not infallible and we are not liable for any errors, omissions, or inaccuracies attributable to AI used in the Platform;
you must independently verify critical outputs where reliance on the Platform could impact your decision-making and must not rely solely on the outputs generated by the Platform; and
it is your responsibility to comply with applicable Laws relevant to your business, including industrial relations Laws and privacy Laws.

3.4 Access

While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Platform and Documentation for the Number of Overlays per month.

3.5 Enhancements

We may from time to time, in our absolute discretion, release enhancements to the Platform, meaning upgraded, improved, modified or new versions of the Platform (Enhancements). Any Enhancements to the Platform will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.

We may change any features of the Platform at any time on notice to you.

3.6 Support Services

We will provide general support where reasonably necessary to resolve technical issues with the Platform (Support Services). Unless otherwise agreed in writing:

we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the Platform internally and we will not assist with issues that are beyond our reasonable control);
we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;
you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Users to access and use the Platform; and
you will not have any claim for delay to your access to the Platform due to any failure or delay in Support Services.

3.7 Demo Access

Where we provide you with access to a demo or trial version of the Platform (Demo Account), such access is provided for evaluation purposes only and is not a Subscription.

Unless otherwise stated in this clause, these Terms apply to Demo Accounts. However, in the event of any inconsistency, this clause will prevail.

Demo Accounts are subject to clause 8 (Intellectual Property and Data), clause 11 (Privacy) and clause 13 (Liability), unless expressly stated otherwise in this clause.

We may limit or restrict functionality, availability, or access to User Data within a Demo Account and may modify or terminate Demo Account access at any time in our absolute discretion.

You must not rely on any outputs, results, or functionality provided through a Demo Account for commercial, operational, or professional purposes. To the maximum extent permitted by law, we exclude all liability arising from your use of a Demo Account.

We may delete or remove any data uploaded to a Demo Account at any time and are not required to retain such data.

For the avoidance of doubt, a Demo Account does not constitute a Subscription under these Terms.

4. Data Hosting

We will store User Data you upload to the Platform using a third party hosting service selected by us (Hosting Services), subject to the following terms:

(hosting location) You acknowledge and agree that we may use storage servers to host the Platform through cloud-based services, and potentially other locations outside Australia.
(service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.
(security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available, that such a backup will be free from errors or defects.

5. Client Obligations

5.1 Assistance

You agree to:

provide us with all documentation, information and assistance reasonably required by us to provide you with the Platform, the Hosting Services, or the Support Services; and
provide us with access to any third party or other accounts used by you (including log-in details and passwords) where reasonably required by us to provide you with the Platform, the Hosting Services, or the Support Services.

5.2 Client Material

You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Platform is complete, accurate and up-to-date.

You release us from all liability in relation to any loss or damage arising out of or in connection with the Platform, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.

6. Your Obligations

You must, and must ensure that all Users, comply with these Terms at all times.

You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.

You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:

upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Platform;
use the Platform for any purpose other than for the purpose for which it was designed, including you must not use the Platform in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
upload any material that is owned or copyrighted by a third party;
make copies of the Documentation or the Platform;
adapt, modify or tamper in any way with the Platform;
remove or alter any copyright, trade mark or other notice on or forming part of the Platform or Documentation;
act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Platform;
use the Platform in a way which infringes the Intellectual Property Rights of any third party;
create derivative works from or translate the Platform or Documentation;
publish or otherwise communicate the Platform or Documentation to the public, including by making it available online or sharing it with third parties;
integrate the Platform with third party data or Platform, or make additions or changes to the Platform (including by incorporating APIs into the Platform) other than integrating in accordance with any Documentation or instructions provided by us in writing;
intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Platform;
sell, loan, transfer, sub-licence, hire or otherwise dispose of the Platform or Documentation to any third party, other than granting a User access as permitted under these Terms;
decompile or reverse engineer the Platform or any part of it, or otherwise attempt to derive its source code;
share your Account or Account information, including login details or passwords, with any other person, except that you may share access with your Personnel for the purposes of operating your business. You acknowledge that the Account is for use by a single organisation and may only be used by your authorised Personnel. Any use by persons other than your Personnel is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Platform’s security;
except as otherwise agreed, upload sensitive information or commercial secrets to the Platform;
make any automated use of the Platform, and you must not copy, reproduce, translate, adapt, vary or modify the Platform without our express written consent; or
attempt to circumvent any technological protection mechanism or other security feature of the Platform.

If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.

You agree, and you must ensure that all Users agree:

to comply with each of your obligations in these Terms;
that information given to you through the Platform, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
that we may cancel your, or any User’s, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 6.

7. Fees and Payment

7.1 Subscription Fees

You must pay subscription fees to us in the amounts specified on the Website for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees).

All Subscription Fees must be paid in advance and are non-refundable for change of mind.

Unless otherwise agreed in writing, the Subscription Fees are due and payable on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period and at the beginning of every Renewal Period thereafter.

7.2 Trial Period

We may from time to time offer a free trial period of the Platform (Free Trial Period). No payments will be due during any Free Trial Period. Upon expiry of the Free Trial Period, your access to the Platform will either (at your election) continue under a paid Subscription or cease. You will not be automatically charged or enrolled into a Subscription, and no Subscription Fees will be payable unless and until you actively elect to commence a Subscription.

7.3 Automatic Recurring Billing

Subject to clauses 7.4 and 7.5:

your Subscription will continue to renew on an automatic indefinite basis unless you notify us that you wish to cancel in accordance with this clause 7;
while your Subscription is maintained, your Subscription Fees will continue to be debited at the beginning of each Renewal Period from the payment method you nominated when you registered for an Account; and
by signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.

7.4 Grace Period

If you fail to cancel your Subscription prior to a Renewal Period and you are charged recurring charges, you have up to 5 Business Days from the date of that renewal to cancel your Subscription by contacting us (Grace Period). If you cancel your Subscription within the Grace Period, please contact us via our Website to request a refund for any recurring fees charged to you during the Grace Period.

7.5 Changes to Subscription Fees

We may, from time to time, change our Subscription Fees and provide you with 10 Business Days’ notice prior to the changes. During this time, you have the opportunity to cancel your Subscription with us. If you do not cancel your Subscription before the new Subscription Fees take effect, you will be deemed to have agreed to pay the new Subscription Fees on the relevant date(s) for payment. The Subscription Fees will be effective from the date specified in the notice or, if no date is specified, on your next billing date.

7.6 Late Payments

We reserve the right to suspend all or part of the Platform indefinitely if you fail to pay any Fees in accordance with this clause 7.

7.7 GST

Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

7.8 Card Surcharges

We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

7.9 Online Payment Partner

We may use a third-party online payment partner, currently Stripe (Online Payment Partner), to collect Subscription Fees.

Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you acknowledge and agree that:

the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner, which can be found here;
you release us and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment; and
we reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment.

You have the right to reject any terms and conditions of the Online Payment Partner. If you reject those terms, we cannot provide you with the Subscription and clause 15 will apply.

8. Intellectual Property and Data

8.1 Intellectual Property

(Our ownership) We retain ownership of all Materials provided to you throughout the course of your Subscription in connection with the Platform (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Platform Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Platform Content not expressly granted to you.

(Licence to you) You are granted a licence to the Platform Content, for the Number of Overlays, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Platform. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Platform Content without prior written consent from us or as otherwise permitted by law.

8.2 User Data — Our Rights and Obligations

You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use User Data to the extent reasonably required to provide the Platform, and for our internal business purposes, including to improve the Platform and our other products and services, and including to apply machine learning and other analytics processes to the User Data, to gain commercial insights and other associated learnings, and to improve the Platform, our business and our other products and services.

We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.

We will store and retain User Data, including files, materials and outputs uploaded to or generated through the Platform, including overlay drawings and comparison results, for the period specified in your applicable Subscription Tier. After expiry of the relevant retention period, or upon termination or expiry of your Subscription, we may delete or permanently remove such User Data from the Platform without further notice and are not obliged to retain or provide access to it.

8.3 User Data — Your Obligations and Grant of Licence to Us

You are responsible for ensuring that:

you share User Data only with intended recipients; and
all User Data is appropriate and not in contravention of these Terms.

You:

warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and
indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

For the avoidance of doubt, this clause applies to all User Data, including any User Data uploaded, processed or generated through a Demo Account.

9. Third Party Terms

If we are required to acquire goods or services supplied by a third party, you may be subject to the terms and conditions of that third party (‘Third Party Terms’).

Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you agree to any Third Party Terms applicable to any goods or services supplied by a third party that we acquire as part of providing the Platform to you, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

Currently, such Third Party Terms include:

You have the right to reject any Third Party Terms. If you reject the Third Party Terms, we cannot provide the Platform to you and clause 15 will apply.

10. Confidentiality

Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.

Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of, Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.

The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.

11. Privacy

We are committed to protecting your privacy and will handle your personal information in accordance with this agreement and any obligations we hold under applicable legislation or privacy guidelines.

12. Warranties and Limitations

(Service Limitations) While we will use our best endeavours to ensure the Platform is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:

the Platform may have errors or defects;
the Platform may not be accessible at times;
messages sent through the Platform may not be delivered promptly, or delivered at all;
information you receive or supply through the Platform may not be secure or confidential; or
any information provided through the Platform may not be accurate or true.

(Errors) We will correct any errors, bugs or defects in the Platform which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:

result from the interaction of the Platform with any other solution or computer hardware, software or services not approved in writing by us;
result from any misuse of the Platform; or
result from the use of the Platform by you other than in accordance with these Terms or the Documentation.

(Warranties) We warrant that:

during the Subscription Period, the Platform will perform substantially in accordance with the Documentation;
during the Subscription Period, the Platform will be provided as described to you in, and subject to, these Terms; and
to our knowledge, the use of the Platform in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.

(Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.

(Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

13. Liability

13.1 Liability

To the maximum extent permitted by law, and subject to clause 13.3, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by you to us in the 3 months preceding the date of the event giving rise to the relevant liability, or if no Subscription Fees have been paid, $100 AUD.

13.2 Consequential Loss

To the maximum extent permitted by law, and subject to clause 13.3, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by us except:

in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

13.3 Exclusion

Clauses 13.1 and 13.2 do not apply to your liability in respect of loss or damage sustained by us arising from your breach of clauses 1 (Eligibility), 3 (Platform), 6 (Your Obligations), 7 (Fees and Payment), 8 (Intellectual Property and Data) or 10 (Confidentiality).

14. Upgrades and Downgrades

You may notify us that you would like to upgrade or downgrade your Subscription Tier or your Number of Overlays at any time. If you do, we will:

take reasonable steps to promptly provide you with access to the new Subscription Tier or the adjusted Number of Overlays; and
upon providing such access, charge the relevant Subscription Fees, from the Renewal Period immediately following the period in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in every subsequent Renewal Period.

If you choose to downgrade your Subscription or your Number of Overlays, access to the new Subscription Tier or reduced Number of Overlays and the new Subscription Fees will be effective at the start of the next Renewal Period, unless we notify you otherwise. We generally do not pro-rate downgrades in between Renewal Periods, however we reserve the right to from time to time.

If you choose to downgrade your Subscription, you acknowledge and agree we are not liable, and you release us from all claims in relation to, any loss of content, features, or capacity, including any User Data.

15. Cancellation

15.1 Cancellation at Any Time

Either party may cancel or terminate the Subscription for convenience by providing written notice prior to the Renewal Date, being:

for monthly subscriptions, at any time up until 11:59pm on the day immediately prior to the Renewal Date; and
for annual subscriptions, at least 7 days prior to the Renewal Date.

The Subscription will end at the end of the then-current Subscription Period and will not renew for the next Renewal Period.

15.2 Cancellation for Breach

Either party may cancel your Subscription immediately by written notice if there has been a Breach of these Terms.

A “Breach” of these Terms means:

a party (Notifying Party) considers the other party (or any of its Personnel or Users) is in breach of these Terms and notifies the other party;
the other party is given 10 Business Days to rectify the breach; and
the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.

15.3 Effect of Termination

Upon termination of this agreement:

you will no longer have access to the Platform, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point);
unless agreed in writing, any unpaid Subscription Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid will be refundable; and
each party must comply with all obligations that are by their nature intended to survive the end of this agreement.

16. If the Parties Have a Dispute

A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

17. Force Majeure

We will not be liable for any delay or failure to perform our obligations under this agreement if such delay or failure arises out of a Force Majeure Event.

If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:

reasonable details of the Force Majeure Event; and
so far as is known, the probable extent to which we will be unable to perform or be delayed in performing our obligations under this agreement.

Subject to compliance with clause 17(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

For the purposes of this agreement, a ‘Force Majeure Event’ means any:

act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
strikes or other industrial action outside of the control of us;
war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

18. Notices

A notice or other communication to a party under these Terms must be:

in writing and in English; and
delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
when replied to by the other party,

whichever is earlier.

19. General

19.1 Governing Law and Jurisdiction

This agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

19.2 Waiver

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

19.3 Severance

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

19.4 Joint and Several Liability

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

19.5 Assignment

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

19.6 Entire Agreement

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

19.7 Interpretation

(singular and plural) words in the singular includes the plural (and vice versa);
(currency) a reference to $ or “dollar” is to Australian currency;
(gender) words indicating a gender includes the corresponding words of any other gender;
(defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(headings) headings and words in bold type are for convenience only and do not affect interpretation;
(includes) the word “includes” and similar words in any form is not a word of limitation; and
(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

20. Definitions

Confidential Information: means information of or provided by a party that is by its nature confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
Demo Account: means any limited, evaluation or trial access to the Platform provided by us, which is not a Subscription.
Documentation: means all manuals, help files and other documents supplied by us to you relating to the Platform.
Hosting Services: has the meaning given in clause 4.
Intellectual Property Rights: means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
Material: means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
Number of Overlays: means the number of Overlays you are permitted to compare using the Platform in accordance with your Subscription Tier.
Overlays: means a set of two or more drawing sheets (being an original and a revised version of a drawing) that are uploaded to and compared using the Platform.
Personnel: means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
Platform: has the meaning given in the first paragraph of these Terms.
Platform Content: has the meaning set out in clause 8.1.
Subscription: means the paid, ongoing access to the Platform provided by us to you under these Terms, in accordance with your selected Subscription Tier and any applicable Subscription Period and Renewal Periods. For the avoidance of doubt, a Subscription does not include any Free Trial Period or Demo Account access.
Subscription Fees: has the meaning set out in clause 7 of these Terms.
Subscription Period: means the period of your Subscription to the Platform as agreed on the Website.
Subscription Tier: has the meaning given in the first paragraph of these Terms.
Support Services: has the meaning given in clause 3.6.
User: means you and any third party end user of the Platform who you make the Platform available to.
User Data: means any files, data, document, information or any other Materials, which is uploaded to the Platform by you or any other User or which you, your Personnel or Users otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials.
Website: means the website at the URL set out in the first paragraph of these Terms, and any other website operated by us in connection with the Platform.

Contact

Hart Digital Pty Ltd (trading as Smart Overlay)
ABN: 76 696 566 195
Email: support@smartoverlay.com.au
Address: P.O. Box 2128 West Burleigh QLD 4220