Terms and Conditions
These terms and conditions govern the use of CheckSite and the products of any CheckSite operating software between us, Spatial Vision Innovations Pty Ltd A.B.N. 28 092 695 951 (“Spatial Vision”) a company registered in The State of Victoria, Australia and you, the user.
- Definitions In these terms and conditions the following words and phrases have the following meanings unless the context manifestly requires otherwise:
(a) "Content" means any data, computing and information services and software, and other content and documentation or support materials and updates included in and/or supplied by or through the Websites, in Reports or Services or in any other way by Spatial Vision and shall include Spatial Vision developed and Third Party Content.
(b) "GST" means Australian Goods and Services Tax and the terms “taxable supply” and ”tax invoice” shall have the same meanings as those terms in the GST legislation.
(c) "Information Pack" means a pack compiled by or on behalf of the owner or prospective buyer of the Property, designed to aid the marketing or purchase of the Property and containing information provided by or on behalf of the owner, lessee, licensee, occupier prospective buyer of the Property as the case may be.
(d) "Intellectual Property Rights" means copyright, patent, design right (registered or unregistered), service or trade mark (registered or unregistered), database right or other data right, moral right or know how or any other intellectual property right.
(e) "Order" means the request by You for Services from Spatial Vision.
(f) "Property" means a land site for which Spatial Vision provides a Service.
(g) References to "We", "Us" and "Our" are references to Spatial Vision Innovations Pty Ltd A.B.N. 28 092 695 951 ("Spatial Vision")
(h) References to "You/Your/Yourself or User" refer to the contracting party who accesses the Website or places an Order with Spatial Vision.
(i) "Report" includes any information that Spatial Vision supplies to You including all reports, services, datasets, software or information contained in them.
(j) "Services" means the provision of any service by Spatial Vision pursuant to these Terms, including without limitation, any Report.
(k) "CheckSite Fees" means any charges levied by Spatial Vision for Services provided to You.
(l) "Data Custodian" means any organisation that owns, maintains or provides data or information of any form to Spatial Vision.
(m "Terms" means these Terms and Conditions.
(n) "Third Party Content" means the services, software, information and other content or functionality provided by third parties and linked to or contained in the Services which ,may include that of Data Custodians.
(o) "Websites" means websites hosted by Spatial Vision and includes the Content and any report, service, document, data-set, software or information contained therein, derived there from or thereby.
(p) All amounts of money are expressed in Australian dollars.
(q) These Terms are expressed in the English language and the original English version prevails over all other versions or translations.
(r) The headings in these Terms are for convenience only and do not affect the meaning or interpretation of any part of these Terms.
- Relationship These Terms govern the relationship between You and Spatial Vision whether You are an unregistered visitor to the Website or are purchasing Services. Where these Terms are not expressly accepted by You they will be deemed to have been accepted by You, and You agree to be bound by these Terms when You place any Order, or pay for any Services provided.
- Modifications Spatial Vision may modify these Terms, and may discontinue or revise any or all other aspects of the Services at our sole discretion, with immediate effect and without prior notice, including without limitation changing the Services available at any given time. Any amendment or variation to these Terms shall be posted on our Websites. Continued use of the Services by You shall be deemed an acceptance by You to be bound by any such amendments to the Terms.
- Terms to Prevail These Terms shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which You may purport to apply even if such other provisions are submitted in a later document or purport to exclude or override these Terms and neither the course of conduct between parties nor trade practice shall act to modify these Terms.
- No Warranty as to Accuracy, etc. Spatial Vision will use reasonable care and skill in providing the Services to You, however, the Services are provided on the express basis that the information and data supplied in the Services are derived from third party sources and Spatial Vision does not warrant the accuracy or completeness of such information or data. Such information is derived solely from those sources specifically cited in the Services and Spatial Vision does not claim that these sources represent an exhaustive or comprehensive list of all sources that might be consulted.
- Intellectual Property You acknowledge that all Intellectual Property Rights in the Services are and shall remain owned by either Spatial Vision or our Data Custodians and nothing in these Terms purports to transfer, assign or grant any rights to You in respect of the Intellectual Property Rights.
- Licence of Intellectual Property Subject always to these Terms, You may, without further charge, incorporate the Content in the form of a Report and make it available to;
(a) the owner of the Property at the date of the Report,
(b) any person who purchases, leases or licenses a right in relation to the whole of the Property,
(c) any person who provides funding secured on the whole of the Property,
(d) any person for whom You act in a professional or commercial capacity,
(e) any person who acts for You in a professional or commercial capacity; and
(f) prospective buyers, lessees or licensees of the Property as part of an Information Pack but for the avoidance of doubt, Spatial Vision shall have no liability to such prospective buyer;
PROVIDED always that you must preserve the whole of the Content, including all disclaimers, copyright and trade mark notices and all third-party notices intact and without alteration.
- Making and Providing Copies You may make and provide copies of the Report in its entirety to third parties but Spatial Vision reserves the right to embed such copy protection or digital rights management information as it may consider necessary to protect its interests under this clause and You will not alter or remove such protection or information nor authorise any other person to do so.
- No Warranty to Third Parties The limitations of Spatial Vision’s liability as set out in clause 6 shall apply to all users of the Service in question in aggregate and Spatial Vision shall not be liable to any other person.
- Confidentiality All parties given access to the Services agree that they will treat as strictly private and confidential the Services and all information which they obtain from the Services and shall restrict any disclosure to employees or professional advisors to enable the relevant party to conduct its internal business. The requirement in this clause to treat the Services as confidential shall include a requirement to maintain adequate security measures to safeguard the Services from unauthorised access, use or copying or from removal or modification of any trade marks.
- No Extraction, Reverse Engineering, etc. Each recipient of the Services agrees (and agrees it will cause its employees, agents or contractors who may from time to time have access to the Services to agree) it will not, except as permitted herein or by separate agreement with Spatial Vision:-
(a) effect or attempt to effect any modification, merger or change to the Service, nor permit any other person to do so; or
(b) copy, use, market, re-sell, distribute, merge, alter, add to or carry on any redistribution, reproduction, translation, publication, reduction to any electronic medium or machine readable form or commercially exploit or in any other way deal with or utilise or (except as expressly permitted by applicable law) reverse engineer, decompile or disassemble the Services, Content or Website; or
(c) remove, alter or in any way change any trademark or proprietary marking in any element of the Services and You shall acknowledge the ownership of the Content, where such Content is incorporated or used into Your own documents, reports, systems or services whether or not these are supplied to any third party.
(d) create any product which is derived directly or indirectly from the data contained in the Services.
- Crown Copyright The mapping contained in any Services is protected by Crown Copyright and must not be used for any purpose outside the context of the Services or as specifically provided by these Terms.
- GST GST at the prevailing rate shall be payable in addition to the CheckSite Fees. You shall pay any other applicable taxes, duties or government imposed fees related to Your use of the Services.
- Payment Terms An individual or a monthly invoice showing all Orders created by You will be generated subject to these Terms. You will pay the CheckSite Fees at the rates set out in Spatial Vision’s invoice. The CheckSite Fees are payable in full within 30 days without deduction, counterclaim or set off. You acknowledge that time is of the essence with respect to the payment of such invoices. Spatial Vision reserves the right to amend the CheckSite Fees from time to time and the Services will be charged at the CheckSite Fee applicable at the date on which the Service is ordered.
- Interest on Late Payment We may charge interest on late payment at a rate equal to 3% per annum above our overdraft rate from time to time as specified by our bankers.
- Third Party Invoices Spatial Vision shall not be obliged to invoice any party other than You for the provision of Services, but where CheckSite does so invoice any third party at Your request, and such invoice is not accepted or remains unpaid, Spatial Vision is entitled to claim payment of such invoices from you as primary debtor.
- Obligation to Pay is Separable Where Your order comprises a number of Services or severable elements within any one or more Services, any failure by Spatial Vision to provide an element or elements of the Services shall not prejudice Spatial Vision’s ability to require payment in respect of the Services delivered to You.
- Suspension or Termination of Service Spatial Vision may suspend or terminate Your rights under these Terms without any liability to You with immediate effect if at any time:-
(a) You fail to make any payment due in accordance with clause 15;
(b) You breach or commit or cause to be committed any material breach of these Terms which is not capable of remedy under paragraph (c); or
(c) You commit a breach and You fail to remedy the breach within 7 days of receipt of a written notice to do so; additionally, without prejudice to the foregoing, Spatial Vision may remedy the breach and recover the costs thereof from You; but nothing in this clause relieves You of your obligation to pay any invoice by the due date in accord with its terms.
- Refunds If Your rights are terminated under the preceding clause and You have made an advance payment We will refund You a reasonable proportion of the balance as determined by Us in relation to the value of Services previously purchased.
- Refusal of Supply Spatial Vision reserves the right to refuse to supply any or all Services to You without notice or reason and will not be liable to you under any circumstance by reason of such refusal.
- Limitations of Liability
22.1 In addition to and not in derogation from the disclaimers as to warranty contained in clauses 6 10 and 24 to 28 (inclusive):
(a) We provide warranties and accept liability only to the extent stated in this agreement;
(b) nothing in these Terms excludes either party's liability for death or personal injury caused by that party's negligence or wilful default, and the remainder of this clause is subject to this provision and Your statutory rights;
(c) as most of the information contained in the Services is provided to Spatial Vision by others, Spatial Vision cannot control its accuracy or completeness, nor is it within the scope of Spatial Vision’s Services to check the information on the ground. Accordingly, Spatial Vision will only be liable to You for any loss or damage caused by its negligence or wilful default; and
(d) subject to this clause neither Spatial Vision nor any person providing information contained in any Services shall in any circumstances be liable for any inaccuracies, faults or omissions in the Services, nor shall Spatial Vision have any liability if the Services are used otherwise than in accordance with these Terms.
22.2 Save as precluded by law, Spatial Vision shall not be liable for any indirect or consequential loss, damage or expenses (including loss of profits, loss of contracts, business or goodwill) howsoever arising out of any problem, event, action or default by Spatial Vision.
22.3 In any event, and notwithstanding anything contained in these Terms, Spatial Vision’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever arising by reason or in connection with this Contract (except in relation to death or personal injury) shall be limited:
(a) to the cost of providing the Service again; or
(b) to a full refund of the price of the Service.
- No Third Party Claims You acknowledge that subject to this clause You have no claim or recourse against any Third Party Content supplier nor any of our other Data Custodians. You will not in any way hold us responsible for any selection or retention of, or the acts of omissions of Third Party Content suppliers or other Suppliers (including those with whom We have contracted to operate various aspects or parts of the Service) in connection with the Services (for the avoidance of doubt Spatial Vision is not a Third Party Content supplier). Spatial Vision does not promise that the supply of the Services will be uninterrupted or error free or provide any particular facilities or functions, or that the Content will always be complete, accurate, precise, free from defects of any other kind, computer viruses, software locks or other similar code although Spatial Vision will use reasonable efforts to correct any inaccuracies within a reasonable period of them becoming known to us.
- Duty of Care and Skill Limited Spatial Vision’s only obligation is to exercise reasonable skill and care in providing environmental property risk information to persons acting in a professional or commercial capacity who are skilled in the use of property and environmental information and You hereby acknowledge that You are such a person.
- No Physical Verification has Occurred No physical inspection of the Property reported on is carried out as part of any Services offered by Spatial Vision and Spatial Vision do not warrant that all land uses or features whether past or current will be identified in the Services. The Services do not include any information relating to the actual state or condition of any Property nor should they be used or taken to indicate or exclude actual fitness or unfitness of a Property for any particular purpose nor should it be relied upon for determining saleability or value or used as a substitute for any physical investigation or inspection. Spatial Vision recommends that You inspect and take other advice in relation to the Property and not rely exclusively on the Services.
- Error or Corruption of Data Spatial Vision shall not be responsible for error or corruption in the Services resulting from inaccuracy or omission in primary or secondary information and data, inaccurate processing of information and data by third parties, computer malfunction or corruption of data whilst in the course of conversion, geo-coding, processing by computer or electronic means, or in the course of transmission by telephone or other communication link, or printing.
- Report Specific to Property Spatial Vision will not be held liable in any way if a Report on residential property is used for commercial property or for a part, subdivision or any parcel of the Property for which it was ordered and such unauthorised use will be deemed to be a breach of these Terms.
- No Warranty as to Fitness for Individual Purpose The Services have not been prepared to meet Your or anyone else's individual requirements. You assume the entire risk as to the suitability of the Services and waive any claim of detrimental reliance upon the same; and You confirm You are solely responsible for the selection or omission of any specific part of the Content.
- Linked Internet Services Spatial Vision offers no warranty for the performance of any linked internet service not operated by Spatial Vision.
- You must Check You will on using the Services make a reasonable inspection of any results to satisfy Yourself that there are no defects or failures. In the event that there is a material defect You will notify us in writing of such defect within seven days of its discovery.
- Support Services Any support or assistance provided to You in connection with these Terms is at Your risk. In any event no person may rely on a Service more than 3 months after its original date.
- Time Time shall not be of the essence with respect to the provision of the Services.
- Positional Accuracy Discrepancies You acknowledge that certain Data Custodians have undertaken a positional accuracy improvement program which may result in discrepancies between the positioning of features used in datasets in the Services and the updated Victorian Department of Sustainability & Environment mapping provided independently by that Data Custodian. Spatial Vision and its Data Custodians exclude all and any liability incurred as a result of the implementation of such positional accuracy improvement program.
- Force Majeure Events You acknowledge that Spatial Vision shall not be liable for any delay, interruption or failure in the provision of the Services which are caused or contributed to by any circumstance which is outside our reasonable control including but not limited to, lack of power, telecommunications failure or overload, computer malfunction, inaccurate processing of data, or delays in receiving, loading or checking data, corruption of data whilst in the course of conversion, geo-coding, processing by computer in the course of electronic communication, or printing (“Force Majeure Events”).
- Severance, Reading Down, etc. If any provision of these Terms are found by either a court or other competent authority to be void, invalid, illegal or unenforceable, that provision shall be deemed to be deleted from these Terms and never to have formed part of these Terms and the remaining provisions shall continue in full force and effect.
- Assignment Spatial Vision may assign its rights and obligations under these Terms without prior notice or any limitation.
- Third Party Services Spatial Vision may authorise or allow our contractors and other third parties to provide to Spatial Vision and/or to You services necessary or related to the Services and to perform Spatial Vision’s obligations and exercise Spatial Vision’s rights under these Terms, which may include collecting payment on Spatial Vision’s behalf.
- No Obligation to non-Parties A person who is not a party to any contract made pursuant to these Terms shall have no right to enforce any terms of such contract and Spatial Vision shall not be liable to any such third party in respect of any Services supplied.
- No Waiver No waiver on Spatial Vision’s part to exercise, and no delay in exercising, any right, power or provision hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or provision hereunder preclude the exercise of that or any other right, power or provision.
- Notices Unless otherwise stated in these Terms, all notices from You to Spatial Vision must be in writing and sent to Spatial Vision’s registered office.
- Complaint Resolution Any complaints in relation to the Services should, in the first instance, be in writing addressed to the Customer Service Support Manager at the Spatial Vision’s registered office. Spatial Vision will respond to any such complaints in writing as soon as practicably possible.
- Governing Law, etc. These terms shall be governed by and construed in accordance with the laws of the State of Victoria, Australia. If any dispute arises out of or in connection with this agreement (a “Dispute") the parties undertake that, prior to the commencement of Court proceedings, they will seek to have the Dispute resolved amicably by use of an alternative dispute resolution procedure acceptable to both parties with the assistance of a mediator appointed by the President for the time being of the Law Institute of Victoria. If the Dispute has not been resolved to the satisfaction of either party within 60 days of initiation of the procedure or if either party fails or refuses to participate in or withdraws from participating in the procedure then either party may refer the Dispute to the Court.
End of Terms and Conditions
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