TERMS AND CONDITIONS – VALOCITY LIMITED
These Terms of Use, including any schedules (Terms) govern your use of the website
located at portal.valocity.com.au (Website) and the internet
hosted software APIX (together the Service)
and form a binding contractual agreement between you, the individual (‘you’ and
‘your’) and Valocity Limited (ACN 613 496 790) (Valocity).
If you have any questions relating to these Terms, please
contact Valocity on before you agree to the Terms and use the Service, and if
you do not agree to these Terms, you must not use the Service.
Valocity can be contacted by one of the following
methods:
Mail: Level
13, 333 George Street, Sydney 2000
Phone:
+61 (2) 8073-5107
Email:
info@valocity.com.au
VALOCITY AND YOU AGREE AS FOLLOWS:
1.
About these Terms
1.1
By registering to use the Service, you agree to
these Terms and acknowledge that these Terms are binding in relation to you and
your use of the Service and apply from the time Valocity provides you access to
the Service.
1.2
The Service will develop over time and Valocity
reserves the right to change these Terms at any time, effective from the time
the modified Terms are posted on the Website. Valocity will endeavour to notify
you of any changes to these Terms via a notification on the Website.
1.4
By using the Service, you acknowledge and agree to
these Terms and:
(a)
to comply with these Terms as amended from time to
time;
(b)
that these Terms may change and that it is your
obligation to ensure you have read, understood, and agree to the most recent
Terms;
(c)
to provide Valocity, and keep up to date, personal
information about yourself reasonably required by Valocity, including your
email address, and warrant that this information is accurate, correct and up to
date.
2.
Licence to use the
Service
2.1
You acknowledge that Valocity is the sole owner (or
licensee) of all intellectual property and content (including, but not limited
to, all trademarks, brands, trade names, ideas, systems, applications, copyrights,
trade secrets, database, know how, confidential information, message and
communication facilities, any textual or graphic material, processes and
competitions, together the ´Intellectual Property´) which is displayed
on the Service (but for the avoidance of doubt, this excludes any content
posted on the Service by a user).
2.2
Conditional on your compliance with these Terms,
and your ongoing acknowledgement and agreement of the Property Data Disclaimer set
out in the Schedule 1 and Schedule 2 to these Terms (Disclaimer), Valocity
grants you a non-exclusive, worldwide, non-transferable licence to use the
Service in accordance with these Terms.
2.3
Valocity will allow you to manage your password,
subject to minimum complexity requirements, and subject to the user role
assigned to you, allow you to manage accounts for your organisation.
2.4
Unless otherwise stated you may access and use the
Service (including any incidental copying that occurs as part of that use) in
the normal manner and may also copy textual material published via the Service for
internal, non-commercial or personal use only, but any copyright notice
applying to the material, including in accordance with the Disclaimer, must appear on all copies.
2.5
Some material on the Service may include trade marks are owned by third parties. If Valocity is not the
owner of the intellectual property rights in any material (including trademarks
and logos) published on this Service, or if you have accessed material via a
link provided on the Service, your rights regarding that material will be as
defined by the owner of the intellectual property rights in the material
concerned.
2.6
Except as set out above in terms 2.4 and 2.5, all rights to the
Service (including rights in text, graphics, selection, arrangement, and
overall design) are reserved and no right or licence is granted or implied
under any copyright, patent, trademark, or other intellectual property right of
Valocity or any other party as a consequence of the publication of any material
on the Service.
2.7
No material from the Service may be published in
any media (including electronic media) without prior written permission from
Valocity, except where the material is contained in a valuation report, in
which case it may be published to the extent reasonably required for you to
conduct and report on a valuation of a property.
2.8
Where the Service contains links to other websites
as well as content added by people other than Valocity, Valocity does not endorse,
sponsor or approve any such user generated content or any content available on
any linked website, unless otherwise indicated on the Service.
2.9
You acknowledge and agree that:
(a)
Valocity retains complete editorial control over
the Service and it may alter, amend or cease the operation of the Service at
any time in its sole discretion;
(b)
the Service will not operate on a continuous basis
and may be unavailable from time to time (including for maintenance purposes);
(c)
Valocity may at any time request a form of
identification to verify your identity; and
(d)
no refunds or any amounts will be paid by Valocity
for any system issues or Service down time.
3.
Use of the Service
3.1
You will be provided with an access login and
initial password for the Service once you are approved as an authorised user.
When you first log on you will be prompted to change your password (and such
new password must meet a minimum security criteria).
3.2
You must keep your login details and password
secure at all times and must not share your login details and password with any
other person.
3.3
You may use the Service for the purposes of
requesting a valuation for a property, or accepting such request and uploading
a valuation report (as the case may be), or general property research, and for
other purposes agreed or reasonably required to ensure the efficient and
effective operation of the Service.
3.4
You will be solely responsible for any content or
data that you upload (whether it be images, text, or documents) to the Service.
3.5
You must not:
(a)
use this Service directly or indirectly for any
activity which breaches any laws, infringes a third party´s rights, is
unlawful, or breaches these terms and conditions;
(b)
attempt to gain unauthorised access to the Service
or use another person´s name, registration account or password;
(c)
tamper with, hinder the operation of or make
unauthorised modifications to the Service;
(d)
translate, reverse engineer, reverse assemble, or
decompile, or otherwise attempt to access or discover the source or object code
of the Service;
(e)
copy or reproduce the Service without Valocity´s
prior written consent;
(f)
permit any unauthorised third party to examine,
repair or in any way alter the Service;
(g)
provide access to, sell, transfer, licence,
sub-licence, loan, lease, disclose or publish the Service to any third person,
except with Valocity´s prior written consent;
(h)
upload content or data to the Service, that:
(i)
solicits, encourages or promotes the use of illegal
substances or illegal activities; or
(ii)
would cause you or Valocity to breach any law,
regulation, rule, code or other legal obligation;
(iii)
contains direct marketing or other solicitation of
services;
(iv)
would bring Valocity, or
the Service, into disrepute;
(v)
is or could reasonably be considered to be obscene,
inappropriate, defamatory, disparaging, indecent, seditious, offensive,
pornographic, threatening, abusive, harassing, bigoted, profane, liable to incite racial hatred,
discriminatory, blasphemous, in breach of confidence or in breach of privacy,
or otherwise objectionable;
(vi)
contains destructive materials, including but not
limited to computer viruses, hackers, spyware, adware or other technical
sabotage;
(vii) gives rise to civil or criminal liability or
otherwise violates any applicable law;
(viii)
breaches
the intellectual property rights of any person; or
(ix)
is inaccurate, misleading or deceptive; or
(x)
contains any
malicious code, data or disabling feature.
3.6
Valocity reserves the right to:
(a)
review,
modify, reformat, reject or remove any content or data which you upload, post,
transmit or otherwise make available (or attempt to upload, post, transmit or
otherwise make available) that, in its opinion, violates the Terms or otherwise
has the potential to harm, endanger or violate the rights of any person; and
(b)
monitor
use of the Service, and store or disclose any information that we collect,
including in order to investigate compliance with the Terms or for the purposes
of any police investigation or governmental request.
3.7
By uploading content or data to the Service you
grant Valocity an irrevocable, royalty and fee free, worldwide licence to use,
copy, distribute, or publish, such content or data in anyway
for the purpose of operating the Service.
4.
Warranties
4.1
You represent and warrant to Valocity that you have
the legal capacity to enter into these Terms
4.2
You represent and warrant to Valocity that you will
not use the Service:
(a)
for any purpose that is unlawful or prohibited by
these terms and conditions; and
(b)
in any manner which could damage, disable,
overburden or impair the Service or interfere with any other party’s use and
enjoyment of the Service.
4.3
Valocity agrees to use its best endeavours to
ensure, but does not warrant, guarantee or make any representations, that the:
(a)
Service is suitable for your intended purpose, or
for any particular purpose at all; or
(b)
Service will be fully accessible at all times,
uninterrupted or error free; or
(c)
data stored in the Service will be error free or
protected from loss; or
(d)
Service is free from destructive materials,
including but not limited to computer viruses, hackers, spyware, adware or
other technical sabotage.
5.
Compliance with API
standards
5.1
You must comply with:
(a)
all applicable guidance and requirements issued by
the Australian Property Institute Limited; and
(b)
the Australian Property Institute Code of Conduct
as updated from time to time and available at https://www.api.org.au/code-of-professional-conduct.
6.
Liability
6.1
The Service is provided on an “as is” basis and to
the extent permitted by law, use of the Service is at your own risk.
6.2
Any conditions, warranties or other terms implied
by statute or common law are excluded to the fullest extent allowed by law.
6.3
Valocity shall not be liable in contract, tort
(including negligence), or otherwise for any direct or indirect damage,
economic loss, or consequential or other loss whatsoever in respect of or arising
out of use of the Service, infringement of any intellectual property or any act
or omission of Valocity.
6.4
To the extent that any claim is not excluded, any
claim for loss or damage suffered by you as a result of Valocity’s negligence
or breach of these Terms, will be limited to the fees collected by Valocity in
respect of your usage of the Service, in the preceding 12
month period.
6.5
If you place reliance on material posted on this Service
you do so at your own risk, and you indemnify Valocity (and its related
entities) from any liabilities, claims, costs, loss (including consequential
loss) or damage suffered or caused by reason of your reliance on any material
posted on the Service.
6.6
To the extent permitted by law, Valocity does not
accept any liability for any loss or damage suffered or incurred by you or any
other person in connection with the use, storage or disclosure of Personal
Information, as that term is defined in the Privacy
Act 1988 (Cth), and you agree to indemnify
Valocity against any reasonable cost resulting from a breach by you of the Privacy
Act 1988 (Cth), the Australian Privacy Principles and any other
regulations introduced and as amended or varied.
6.7
These Terms are to be read subject to any
legislation which prohibits or restricts the exclusion, restriction or
modification of any implied warranties, conditions, guarantees or obligations.
If such legislation applies, to the extent possible, Valocity limits its
liability in respect of any claim to, at its option:
(i)
the supply of the Services again; or
(ii)
the payment of the cost of having the Services
supplied again.
7.
Privacy
7.1
We will act in accordance with the Privacy Act
1993. For further details on privacy, please read Valocity’s Privacy Policy
available at https://valocityglobal.com/privacy.
8.
Linked websites
8.1
Valocity is not responsible for the content of any
other website, even if you access that website via a link on
portal.valocity.com.au, valocity.co.nz or valocityglobal.com. Valocity provides
links to you only as a convenience, and the inclusion of any link does not
imply endorsement by Valocity of that website.
9.
Purpose and validity of
information
9.1
Information on the Service is primarily of an
informative nature. Valocity uses its best endeavours to ensure that as far as
is reasonable and possible, the information on the Service is correct and up to
date but does not accept liability for any errors or omissions.
9.2
Valocity is not responsible for the results of any
actions taken on the basis of information on the Service. Valocity disclaims
all and any liability to any person in respect of any act done or omitted to be
done in reliance on the contents of the Service. The views expressed by
independent industry analysts and commentators are those of the author only and
not necessarily those of Valocity.
9.3
The development of Valocity’s products and services
is continuous and published information may not be up-to-date. Some information
on the Service about Valocity’s products and services is provided through links
to other websites.
10.
Termination
10.1
These Terms terminate automatically if, for any
reason, Valocity ceases to operate the Service.
10.2
Valocity may otherwise terminate these Terms immediately
or suspend your access to the Service immediately if you have breached these
Terms, or if your subscription ceases.
10.4
Termination of these Terms does not affect the
accrued rights of any party up to the date of termination.
10.5
On termination of these Terms:
(a)
you will remain liable for any other charges that
become due and payable before or after the date of termination; and
(b)
you must cease to use the Service.
11.1
Any Party must attempt to resolve a dispute in
accordance with the procedures set down in this clause 11
before commencing legal proceedings against another Party.
11.2
If a dispute arises in relation to these Terms or
your use of the Service in anyway, either you or Valocity, or both, may give
written notice to the other (together “the Disputing Parties”) requiring
that an attempt be made to resolve the dispute and the Disputing Parties agree
to use their best endeavours to first settle the dispute by discussions in good
faith between the Disputing Parties (or a person a Disputing Party nominates as
its representative).
11.3
If a dispute is not resolved within two weeks (or
such period as agreed in writing by the Disputing Parties) after written notice
of the dispute has been given, any Disputing Party may give the other a written
notice requiring that the dispute be resolved by a mediator appointed jointly
by the Disputing Parties (Mediation Notice).
11.4
If the Disputing Parties do not agree on the
appointment of a mediator within 1 week after the Mediation Notice is given,
the mediator is to be appointed by the Resolution Institute (Institute).
11.5
The mediation is to be conducted in accordance with
the Institute’s Rules for the Conduct of Commercial Mediation and those rules
are binding on the Disputing Parties.
11.6
The Disputing Parties must co-operate fully with
the mediator.
11.7
Any mediation agreement resulting from the
mediation shall be binding on the Disputing Parties.
11.8
The Disputing Parties must pay an equal share of
the fees and expenses the mediator is entitled to.
11.9
Nothing in this clause 11
prevents a Party from seeking urgent injunctive, declaratory
or other interlocutory or equitable relief before an appropriate Court.
12.
Interpretation
12.1
In these Terms the following rules of
interpretation apply unless the context otherwise requires:
(a)
a reference to any legislation or legislative
provision includes any statutory modification or re-enactment of, or
legislative provision substituted for, and any subordinate legislation issued
under, that legislation or legislative provision;
(b)
the singular includes the plural and vice versa;
(c)
a reference to an individual or person includes a
corporation, partnership, joint venture, association, authority, trust, state
or government and vice versa;
(d)
a reference to any gender includes all genders;
(e)
a reference to a recital, clause, schedule,
annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of
or to these Terms;
(f)
a recital, schedule, annexure or a description of
the parties forms part of these Terms;
(g)
a reference to any agreement or document is to that
agreement or document (and, where applicable, any of its provisions) as
amended, novated, supplemented or replaced from time to time;
(h)
a reference to any party to these Terms, or any
other document or arrangement, includes that party’s executors, administrators,
substitutes, successors and permitted assigns;
(i)
where an expression is defined, another part of
speech or grammatical form of that expression has a corresponding meaning;
(j)
where an expression is defined anywhere in these
Terms, it has the same meaning throughout;
(k)
a reference to “dollars” or “$” is to an amount in
Australian currency;
(l)
a reference to a matter being “to the knowledge” of
a person means that the matter is to the best of the knowledge and belief of
that person after making enquiries reasonable in the circumstances;
(m)
mentioning anything after include, includes or
including does not limit what else might be included; and
(n)
the rule of contra
proferentem does not apply to these Terms.
13.
General
13.1
You must not assign, sublicence or otherwise deal
in any other way with any of your rights under these Terms.
13.2
To the extent of any inconsistency between these
Terms and the schedules to it, the following order of precedence will apply:
(a)
first,
these Terms; then
(b)
Schedule
2; then
(c) Schedule 1.
13.3
The non-exercise of or delay in exercising any
power or right of Valocity does not operate as a waiver of that power or
right. A power or right may only be
waived in writing by Valocity.
13.4
If a provision of these Terms is invalid or
unenforceable it is to be read down or severed to the extent necessary without
affecting the validity or enforceability of the remaining provisions.
13.5
Each party must at its own expense do everything
reasonably necessary to give full effect to these Terms and the events
contemplated by it.
13.6
These terms and conditions are governed by the laws
of Australia and you submit to the non-exclusive jurisdiction of the Australian
courts.
13.7
Except where stated otherwise these Terms represent
the entire agreement between you and Valocity on the subject matter. All
representations, communications, prior agreements, statements and
understandings, whether verbal or in writing, in relation to the subject matter
are merged in and superseded by these Terms.
SCHEDULE 1 – PROPERTY
DATA DISCLAIMER
1.
INTRODUCTION
1.1.
This Disclaimer is to be read in conjunction with
the Terms. The provisions regarding interpretation in the Terms will also apply
to this Disclaimer.
1.2.
The terms of this Disclaimer apply to any person
accessing the Service, including an end user and any entity registered for the
Service (including where the registered entity is an employer of a user)
(collectively the Users).
1.3.
This Disclaimer explains how Users may use the data
made available on the Service and satisfies Valocity’s obligations to each
State and Territory to explain the limitations around the data and information
on the Service.
1.4.
Using the Service will be considered an acceptance
of the terms and limitations of this Disclaimer.
1.5.
This Disclaimer may be amended or modified from
time to time, and any amendments will be effective from the time the modified Disclaimer
is posted on the Website.
2.
PURPOSE
2.1
The information accessed on the Service is distributed
as a general reference source.
2.2
All information and data available on the Service
has been provided to Valocity by third parties, and Valocity is unable to
determine the legitimacy of the information.
2.3
Valocity recommends that all users consider the source,
accuracy, currency, completeness and relevance of the information and data
available on the Service and consider the suitability of that information or
data for that Users’ purpose.
2.4
In
consideration for using the Service, Users acknowledge and agree that Valocity
gives no warranty in relation to the data (including accuracy, reliability,
completeness, currency or suitability) and accepts no liability (including
without limitation, liability in negligence) for any loss, damage or costs
(including consequential damage) relating to any use of the Service, or data
and information available on the Service.
2.5
All Users must exercise their own due care and
skill with respect to all information and data available on the Service.
2.6
Users must not use any information or data accessed
through the Service to produce any promotional material which would enable a
reader or user of the promotional material to identify an individual as
presently holding or as having held an interest of any kind in land identified
in the data.
2.7
Users must not use the Service, or allow materials
from the Service to be used, for direct marketing purposes or to be used in
breach of any applicable privacy legislation and regulations.
2.8
Users must not contact vendors or purchasers
directly using any information obtained through the Service.
2.9
Users must not sell, assign, transfer, sub-license,
reproduce, repackage or on-supply any data obtained from the Service.
2.10 Valocity
is not obligated to provide updates to the data or notify of any changes to
information or data accessed through the Service.
3.
VALUATION LIMITATIONS
3.1
Users acknowledge and agree that the Service is not
intended to (and should not be used to) replace a valuation prepared by a professional
valuer in accordance with industry standards.
3.2
Users acknowledge and agree that the Service does
not involve a physical inspection of the property but is rather an online analysis
of comparable sales.
3.3
The Service does not make any comment regarding the
state of the property and is not a building, structural or land survey. The
Service will also not identify issues available upon inspection of the
property, including but not limited to structural, weather tightness,
contaminants, regulatory, legal, title, town planning or stability issues). It
is the responsibility of the User to identify any such issues.
3.4
Any map showing property boundaries of comparable
sales is indicative only and may not be complete or accurate. Any map that is
produced is not intended or designed to replace a certificate of title,
deposited plan or land survey information for any purpose.
4.
LIABILITY AND RELEASE
4.1
The Service is provided on an “as is” basis and to
the extent permitted by law, use of the Service is at a User’s own risk.
4.2
All Users release Valocity to the fullest extent
permitted at law from any and all claims relating to the usage of the material
made available through the Service.
4.3
Valocity bears no responsibility to any third party
or client of a User who relies upon any information obtained through the
Service, and Users indemnify Valocity for any such claims.
4.4
Valocity is not liable for any loss, damage or
injury suffered by any third party that may arise from use of the Services.
4.5
Users indemnify and keep indemnified Valocity
against any loss, costs, expenses, damages and liability of any kind, which
Valocity may sustain or incur arising directly or indirectly from any claim
relating to the Services made or permitted to be made, or relating to any data
produced by or on behalf of the User which incorporates any data or information
accessed through the Service.
4.6
Users indemnity Valocity from and against any loss or
liability incurred, or loss of or damage to property, or loss or expense incurred
in dealing with any claim against Valocity arising from any breach of this
Disclaimer by a User and from an act or omission of a User where there was
fault on the part of a User that gave rise to that liability, loss, damage or
expense.
5.
AUSTRALIAN CAPITAL TERRITORY SERVICES
5.1
This clause 5 applies to the
use of Services in connection with or relating to the Australian Capital
Territory.
5.2
The Australian Capital Territory data is the
property of the Australian Capital Territory. No part of it may in any form or
by any means (electronic, mechanical, microcopying,
photocopying, recording or otherwise) be reproduced, stored in a retrieval
system or transmitted without prior written permission. Enquiries should be
directed to:
Manager
Customer Services
Environment and Planning Directorate
GPO Box 158
CANBERRA ACT 2601
5.3
For the purposes of clause 5.2 data includes any materials provided through use
of the Services.
6.1
This clause 6 applies to the
use of Services in connection with or relating to New South Wales.
6.2
Users:
(a)
acknowledge the Service includes data from the NSW
Government as modified by Valocity through incorporating additional information
and creating a report;
(b)
acknowledge that the NSW data is licensed pursuant,
and agree to be bound, to the Creative Commons Licence, available at: https://creativecommons.org/licenses/by/4.0/legalcode;
(c)
acknowledge that the only terms that Valocity
offers are the Valocity Terms and Conditions and this Disclaimer, and Valocity
offers no additional or different terms or conditions in relation the NSW data,
other than what is contained in the Creative Commons Licence;
(d)
acknowledge that the full extent permitted by
applicable law, the State of NSW offers the NSW data “as-is” and “as-available”
and makes no representations, warranties or conditions of any kind concerning
the NSW data, whether express, implied, statutory or otherwise. This includes,
without limitation, any representations, warranties or conditions regarding:
(i)
the
contents or accuracy of the Work;
(ii)
title,
merchantability, or fitness for a particular purpose;
(iii)
non-infringement;
(iv)
the
absence of latent or other defects; or
(v)
the
presence or absence of errors, whether or not discoverable.
7.
NORTHERN TERRITORY SERVICES
7.1
This clause 7 applies to the
use of Services in connection with or relating to the Northern Territory.
7.2
Users:
(a)
acknowledge the Service includes data which the
Northern Territory is the owner of, and holds copyright in;
(b)
acknowledge that that the Northern Territory may
require a written undertaking, in a form satisfactory to the Territory, that
Users must observe and perform with respect to the data terms and conditions
similar to Valocity’s terms and conditions with the Northern Territory;
(c)
agree not to reproduce, repackage or on supply any
data.
8.1
This clause 6 applies to the use of Services in connection with
or relating to Queensland.
8.3
The Service contains data provided by the State of
Queensland (Department of Natural Resources Mines and Energy) 2020.
In consideration
of the State permitting use of this data Users acknowledge and agree that the
State gives no warranty in relation to the data (including accuracy,
reliability, completeness, currency or suitability) and accepts no liability
(including without limitation, liability in negligence) for any loss, damage or
costs (including consequential damage) relating to any use of the data. Data
must not be used for direct marketing or be used in breach of the privacy laws.
8.4
For the purposes of this clause 8data includes any materials provided through use of
the Services.
9.1
This clause 9 applies to the use of Services in connection with
or relating to South Australia.
9.2
WARNING: The information contained in this dataset
is extracted from records of land status and cadastral boundary definition held
by the Government of the State of South Australia (the State). The
information is not represented to be accurate, current, complete, or suitable
for any purpose, at the time of its supply by the State, and may have changed
since the date of supply by the State. The software by which the information is
provided is not represented to be error free. No responsibility is accepted by
the State for any reliance placed by any person upon the information, or the
software by which it is provided. Persons acquiring or using the information
and its associated software must exercise their independent judgement in doing
so.
9.3
COPYRIGHT: Copyright in the information remains
with the Crown in right of the State of South Australia. The information is
reproduced under licence from the Crown.
9.4
PRIVACY: The information contained in this dataset
must not be used for the purposes of compiling contact lists, whether
personalised or not.
9.5
For the purposes of this clause 9 dataset includes any materials provided through
use of the Services.
10.1
This clause 10 applies to the use of Services in connection with
or relating to Tasmania.
10.2 COPYRIGHT
STATEMENT & DISCLAIMER: This product incorporates data the copyright
ownership of which is vested in the Crown in Right of Tasmania. The data has been used in the product with
the permission of the Crown in Right of Tasmania. The Crown in Right of
Tasmania and its employees and agents:
(a)
give no warranty regarding the data’s accuracy,
completeness, currency or suitability for any particular purpose; and
(b)
do not accept liability howsoever arising,
including but not limited to negligence for any loss resulting from the use of
or reliance upon the data.
Base data from the LIST © Crown in Right of Tasmania
www.thelist.tas.gov.au.
10.3
Users are not entitled to any access or use of the
data included in the Service, outside of the Service provided by Valocity.
10.4
Users acknowledge that although the Tasmanian Crown takes
steps to ensure that the data is correct, the Crown does not warrant the
accuracy, completeness, currency or suitability of the data – the data has not
been prepared to meet any individual requirements and it is therefore the
responsibility of the user to ensure that the data meets ay such requirements.
The Tasmanian Crown does not warrant that the data will
be capable of being accessed, delivered or processed on all software or
hardware. To the extent permitted by law, the Tasmanian Crown excludes all
warranties in respect of the data. In respect of the warranties unable to be
excluded by law, liability is limited, entirely at the Crown’s option, to
resupply of the data or supply of equivalent data.
10.5
For the purposes of this clause 10 data includes any materials provided through use
of the Services.
11.1
This clause 11 applies to the
use of Services in connection with or relating to Victoria.
11.2
Users agree to be bound to the Victorian Customer
Terms of Use, in Schedule 2 of the Terms and by entering
these Victorian Customer Terms of Use Users are in effect executing and
agreement to be bound by the Victorian Customer Terms of Use.
11.3
The State of Victoria owns the copyright in the
Property Sales Data and reproduction of that data in any way without the
consent of the State of Victoria will constitute a breach of the Copyright Act
1968 (Cth).
The State of Victoria does not warrant the accuracy or completeness of
the Property Sales Data and any person using or relying upon such information
does so on the basis that the State of Victoria accepts no responsibility or
liability whatsoever for any errors, faults, defects or omissions in the
information supplied.
11.4
The data must not be used for marketing,
promotional purposes, including compilation or validation of mailing lists,
list brokering, data mining, or contacting vendors or purchasers. This
includes, without limitation, use of or access to the data for the creation or
validation of marketing or mailing lists or data matching.
11.5
For the purposes of this clause 11
Property Sales Data includes any materials provided through use of the
Services.
12.
WESTERN AUSTRALIA SERVICES
12.1
This clause 11 applies to the use of Services in connection with
or relating to Western Australia.
12.2
Users agree to be bound to the following
obligations and must:
(a)
only use the Services for your personal or business
purposes and must not sell, licence, hire, let, trade, expose for sale, or
derive revenue from the Services or part thereof;
(b)
not use the Services for the purposes of direct
marketing, being any activity which makes it possible
to offer goods or services or to transmit other messages to a third party aimed
at informing or soliciting a response from the third party, as well as any
service ancillary to the same;
(c)
acknowledge that the Service is derived from
Landgate’s location information, © Western Australian Land Information
Authority (Landgate) (2020). Landgate owns all copyright in the location
information which is protected by the Copyright Act 1968. Apart from any
use as permitted under the fair dealing provisions of the Copyright Act 1968,
all other rights are reserved and no location information, or part thereof, may
be reproduced, distributed, commercialised or re-used for any other purpose
without the prior written permission of Landgate;
(d)
acknowledge that the location information that the
Service is derived from is provided by Landgate in good faith on an “as is”
basis. While Landgate has made every effort to ensure the accuracy,
reliability, completeness and suitability of the location information, Landgate
does not give any guarantee or take any responsibility or accept any liability
(including without limitation, liability in negligence) arising from or
connected to any errors or omissions in the location information. Landgate
accepts no responsibility and disclaims all liability for any losses, damages
or costs as a result of the use or reliance on the location information.
Reliance should only be placed on the original source documents such as the
certificate of title and survey plan available from Landgate. It is strongly
recommended that users exercise their own skill and care with respect to the
use of the location information, and before relying on the location
information, users should carefully consider its relevance to their purpose and
obtain any professional advice appropriate to their particular circumstances;
(e)
acknowledges that areas and dimensions shown in the
Service may be approximate values only. Refer to official registered documents,
survey plans, diagrams etc available from Landgate for accurate area,
dimensions and other information;
(f)
acknowledges that the location information that the
Service is derived from may be subject to privacy legislation and contractual
restriction on its publication. Landgate takes no responsibility for any breach
of privacy legislation by any person in relation to the location information.
13.
INTELLECTUAL PROPERTY RIGHTS
13.1
Nothing in this Disclaimer or the Valocity Terms
and Conditions constitutes a transfer of any intellectual property rights. Users
acknowledge and agree that Valocity owns all intellectual property rights in
the Service, and in all information and reports accessed through the Service,
subject to any restrictions of the States and Territories.
13.2
By posting or adding any content onto the Service, Users
grant Valocity a perpetual, non-exclusive, royalty-free, fee-free, irrevocable,
worldwide and transferable right and licence (including a right of sub-licence)
to use that content in any way (including, without limitation, by reproducing, modifying,
adapting, publishing, changing, and communicating the content to the User) and
permit Valocity to authorise any other person to do the same thing.
13.3
Users consent to any act or omission which would
otherwise constitute an infringement of that User’s moral rights, and if Users
add any content in which any third party has moral rights, User’s warrant that
the third party also consents in the same manner.
13.4
Users represent and warrant to Valocity that they
have all necessary rights to grant the licences and consents set out in this
clause 13 and Users must
not breach any provisions of the Copyright Act 1968 (Cth)
in connection to the use of the Service.
13.5
This clause 13 will survive
any termination or expiry of a User’s agreement with Valocity.
SCHEDULE
2 – VICTORIAN TERMS OF USE
Terms
of use for all Users of Services in connection to Victoria (“Customers”)
(a)
Customers must not use any data provided through
use of the Services which was recorded as a result of individual land
transactions recorded by the Department of Transport, Planning and local
Infrastructure of Victoria (or its successors under any machinery of Government
changes as may be implemented) and released pursuant to section 5(2) of the Valuation
of Land Act 1960 (Vic) (“Licensed Material”), to:
(i)
prepare
mailing lists or to assist in direct marketing;
(ii)
subject
to clause (h)) reproduce, repackage or on-supply the Licensed Material;
(iii)
breach
the provisions of the Copyright Act 1968 (Cth) in
relation to access to and use of the Licensed Material; and
(iv)
must
ensure that no other person breaches the above conditions.
(b)
Customers must not, access or use the Licensed
Material for marketing or promotional purposes, including compilation or
validation of mailing lists, list brokering, data mining or contacting vendors
or purchasers. This includes, without limitation, use of or access to the
Licensed Material for the creation or validation of marketing or mailing lists
or data matching. The Customer must not cause or allow the presentation of the
Licensed Material to be linked to other information (by way of reference to a
website or otherwise) that may infer in any way that the data may be used or
available for marketing or promotional purposes. For the avoidance of doubt,
this clause (b) does not prevent the Licensed Material being used for the
purpose of general research of the property market.
(c)
The Customer acknowledges that if it contravenes
any of the requirements these Terms its access to the Licensed Material may be
terminated immediately.
(d)
Upon the expiration or termination of these Terms,
the Customer must immediately delete all Licensed Material from its servers and
destroy or return to Valocity all other forms (written, electronic or
otherwise) of the Licensed Material in the possession or control of the
Customer and its employees and agents and provide to Valocity a certificate by
one of its directors or company secretary (or by a partner or the proprietor as
appropriate) verifying its deletion, destruction or return.
(e)
Before being granted access to the Licensed
Materials, a Customer must accept these Terms.
(f)
If a Customer is able to
access vendor and purchaser names in accordance with the terms of these Terms,
the Customer must execute a deed prior to being given access to such details.
(g)
A User may only access or use the Licensed Material
for their own personal use and must not distribute any of the Licensed Material
to any third party without the prior written permission from Valocity.
(h)
Notwithstanding clause (a)(ii), a valuer, government
agency or licensed real estate agent is only authorised to access the data for
that customer class as follows:
(i)
valuer
or government agency – property address, municipality, sale price, property
classification code, land area, contract date, settlement date, land
description (lot/plan or crown description), number of bedrooms, constructions
material, council assessment number, vendor name, purchaser name, title
reference, cash or terms, deposit, Melway of VicRoads map
reference, licence, plant and machinery, chattels, microfilm number or dealing
number;
(ii)
licensed
real estate agent – property address, municipality, sale price, property
classification code, land area, contract date, settlement date, land
description (lot/plan or crown description), number of bedrooms, constructions
material, council assessment number, vendor name (Read Only), purchaser name
(Read Only, title reference, cash or terms, deposit, Melway or VicRoads map reference, licence,
plant and machinery, chattels, microfilm number or dealing number;
and
the data accessed shall not be shared with any other person or corporation,
save for:
(iii)
any
employee or agent who executes a confidentiality deed; and
(iv)
clients
of the valuer or licensed real estate agent:
A. where the client has
commissioned the valuer or licensed real estate agent to carry out a valuation
of real estate or engaged the valuer or licensed real estate agent to sell real
estate on behalf of the client, such that the valuer or licensed real estate
agent is required to prepare an estimated selling price of the real estate in
accordance with the legislative requirements of a state or territory;
B. only to the extent necessary
that the data be included in the valuation or estimate report prepared for the
client; and
C. in any case, details of any
vendor or purchaser contained in the data must not be disclosed to the client;
and
D. with Valocity’s prior written
consent companies, firms or persons carrying on business by way of a common
franchise agreement or a similar common business structure; and
(v)
as
permitted by law.