All content on this website and in any files downloaded from this website is © 2023 by PropCode Trading Pty Ltd ACN 664 294 160.
By using the outputs from the PropCode platform, you accept that the platform:
- Does not answer all questions you may have. Although our analysis is an excellent starting point, you will very likely still need assistance from professionals to complete your project.
- Does not make any recommendations. It is your responsibility to determine how to achieve your preferred land use, building design, approval pathway, and financial goals.
- Is limited to freely available data. You must find other required information that is not processed by this platform, notably including flood risk and bushfire BAL values.
- Does not consider building design. It is your responsibility to follow the regulations to create an appropriate design that suits your objectives.
- Does not guarantee approval by any authority. You retain all uncertainty and risk associated with any past, present, or future application for building works by any process including CDC, DA, etc.
- Makes reasonable assumptions and interpretations. Other parties may have different assumptions or interpretations than PropCode, and we are not liable for these differences.
- Only considers NSW complying development (CDC). Other approval types including development applications (DAs) are not considered in this platform.
- Is fully automated. We do not manually review any individual report or property checked through the platform, and we will not issue individual explanations or corrections.
The content in your report was current within the two months prior to the report generation date. We are not responsible for any regulatory changes after your report generation date.
The Commonwealth or NSW Governments are the owners of all data and rules used in the report. Any errors in the source data or rules are their responsibility.
PLATFORM TERMS - SERVICES AGREEMENT
This Services Agreement is effective from the Effective Date, and is entered into by and between.
- PropCode Trading Pty Ltd ACN 664 294 160 (PropCode); and
- The Customer, whose details are provided at the time of purchase and appear on the invoice (Customer)
Each a "Party" and collectively the "Parties".
PropCode has developed certain software applications and platforms which it uses to generate products available to customers either:
- for SaaS Customers,; or
- for Offline Customers,
in each case, including any combination of interactive software or downloaded documents created by PropCode on a pay-per-use basis, for the purpose of the Customer's property-related research and investigation..
- The Customer wishes to use PropCode's services for its own operations, including business operations for Customers which are incorporated.
- PropCode has agreed to provide and the Customer has agreed to take and pay for PropCode's service subject to the terms and conditions of this Agreement.
Terms and Conditions
All Services provided by PropCode for the Customer shall be governed by these Terms and Conditions.
Definitions and Interpretation
In these Terms and Conditions, except to the extent expressly provided otherwise:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
"Agreement" means a contract made incorporating these Terms and Conditions between PropCode and the Customer;
"API" means the application programming interface for the Hosted Services defined by PropCode and made available by PropCode to the Customer;
"Applicable Law" meansapplicable legislation, regulations, codes of practice, guidance and other requirements of any relevant government or Governmental Agency. This includes, without limitation, the Privacy Act;
"Background IP" means Intellectual Property Rights owned by a Party as at the Effective Date and including all modifications and enhancements to them, whether created by either or both parties or otherwise";
"Business Day" means a day which is not a public holiday in Sydney, NSW"
"PropCode" means the person or entity identified as such in this Agreement and the Subscription;
"Consequential Loss" includes:
- any loss arising from third party information which may be inaccurate or contain errors which may be included in the Services or decisions made by the Customer in reliance on the Services;
- any loss of profits or anticipated savings, including without limitation arising from decisions made by a Customer, their related parties, their service providers or any third party (including any Government Agencies) or other qualified planning professional based upon reliance on the Services; or from an interpretation of the autogenerated output of the Services by the Customer in the absence of consultation or clarification with PropCode;
- any loss of revenue or income;
- any loss of use or production;
- any loss of business, contracts or opportunities; or
- any special, indirect or consequential loss or damage.
"Confidential Information" means in the case of either Party (i) the terms and conditions of this Agreement and all work orders or statements of work and the Parties' performance hereunder, (ii) information relating to a Party's business, customers, financial condition, or operations, (iii) the information technology systems of either Party, (iv) the Intellectual Property Rights of each Party, including the Documentation, (v) trade secrets, know how, information related to current and future products and services, prices, financial information, or business forecasts, marketing plans and information, any commercial, financial or technical or other information concerning or in connection with the affairs of a disclosing Party; (vi) in the case of Customer all Customer Data; and (vii) any other information, whether in a tangible medium or oral and marked or clearly identified by a Party as confidential or proprietary at the time of disclosure, except such information that (a) is known to the recipient prior to its first receipt of such information from the disclosing Party, provided that such information is not subject to another confidentiality agreement of which Customer and PropCode are a Party, (b) is or becomes generally known to the public other than as a result of an unauthorized disclosure by any of the recipient's directors, officers, employees, agents or advisors, or (c) is independently developed by the recipient without access to or use of the Confidential Information. In the case of PropCode includes the PropCode Software and the PropCode Platform, and all algorithms and logic underpinning such products. The Confidential Information of a Party also includes Confidential Information provided to that Party by a third party licensor, supplier, vendor or the like;
"Customer" means the person or entity identified as such in the Subscription or in the case of a SaaS Customer as provided in the [insert the customer capture location], being either a SaaS Customer or a Offline Customer;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to PropCode for uploading to, transmission by or storage on the Platform; generated by the Platform as a result of the use of the Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files) and includes the Customer Personal Data;
"Customer Personal Data" means any Personal Data that is Processed by PropCode or its sub-processors; on behalf of the Customer in relation to the Agreement;
"Cyber Risk Standard"means in respect of the Software and Services, PropCode will install and maintain commercially available anti-virus, anti-malware and anti-ransomware protections, to mitigate against a Cyber Security Incident.
"Cyber Security Incident" means any one or more acts or events or circumstances involving:
- unauthorised access to or modification of computer data or computer program;
- unauthorised impairment of electronic communications to or from a computer; or
- unauthorized impairment of the availability, reliability, security or operation of computer data, a computer program or a computer,
including without limitation:
- data hack,
- cyber attack,
- organization access by a rogue employee,
- denial of service attack, or
- malicious cyber activity,
in each case, whether or not successful or attempted.
"DPA" or "Data Processing Agreement" means the Data Processing Agreement being Schedule A;
"Derived Data" means any data (wholly or in part) manipulated to such a degree that it (a) cannot be identified as originating or deriving directly from the Customer Data and cannot be reverse-engineered such that it can be so identified; and (b) is not capable of use substantially as a substitute for the services;
"Documentation" means the documentation for the Services produced by PropCode and delivered or made available by PropCode to the Customer;
"Effective Date" means the earlier of (i) the date on which the parties agree in the Subscription, or (ii) the date on which PropCode begins providing the Services to the Customer;
"Fees" means :
- the amounts specified under "Fees" for Offline Customers for a Service as communicated by PropCode to the Customer in writing, and for SaaS Customers for the Subscription Fee Period as published by PropCode in conjunction with the Subscription, or otherwise as communicated by PropCode to the Customer in writing;
- such amounts as may be agreed in writing by the parties from time to time;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Good Industry Practice" meansthe exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector;
"Government Agency" means any government or any governmental agency, semi-governmental or judicial entity or authority, including without limitation an approval authority with respect to a Property Application ;
"GST" means Australian goods and services tax, and shall have the meaning given in A New Tax System (Goods and Services Tax) Act "999 (Cth);
"Gross Negligence" means an act or omission that is negligent and constitutes a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable injury or damage;
"Hosted Services" means the Platform and Services that will be made available by PropCode to the Customer in accordance with these Terms and Conditions;
"Insolvency Event" means any of the following events in relation to a Party:
- the Party informs the other in writing or informs creditors generally or passes a resolution to the effect that it is insolvent or is likely to become insolvent or the Party is deemed to be insolvent under any legislation;
- the Party enters, attempts or proposes to enter a scheme of arrangement or any other form of court sanctioned corporate reconstruction (other than if the Party can demonstrate to the satisfaction of the other that it is to carry out a reconstruction or amalgamation while solvent);
- the Party enters, attempts to enter or proposes to enter a compromise or other arrangement with creditors or any class of its creditors;
- the Party has a liquidator, provisional liquidator, administrator, insolvency officer or any other similar official appointed to it or its property;
- the Party takes any steps to obtain, or is granted, protection from creditors under any law;
- any charge, mortgage or encumbrance is enforced or exercised against any material asset of the Party;
- the Party has an application made to the court for its winding up and such application is not withdrawn or dismissed within 14 days;
- the Party ceases to carry on its business or a material part of it, or threatens to do either of those things without the prior written consent of the other Party (which consent may not be unreasonably withheld);
- the Party has a winding up order made against it, is deregistered, dissolved or has any steps taken against it to enforce a judgement of a court or an arbitral award; or
- the Party has something having substantially similar effect to any of the events specified above occur in any jurisdiction;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include current and future copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Notifiable Data Breach" means unauthorised access to or disclosure of Personal Data or loss of Personal Data collected or processed by PropCode or its sub-processors, which is likely to cause serious harm to one or more data subjects where PropCode or its sub processors have not been able to prevent risk of serious harm with remedial action, as more fully described in the Privacy Act
"Offline Customers" means Customers who receive the Services via email by way of downloaded output from the PropCode Platform;
"Personal Data" or "PII" includes any data that relates to a living person who can be identified from that data, or from that data and other data which is in the possession of, or is likely to come into the possession of, the Customer and includes the meaning given to it in the Privacy Act__1988 (Cth) and the Australian Privacy Principles;
"Platform" means PropCode's Platform managed by PropCode and used by PropCode to provide the Services, including the application and database software for the Hosted Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed;
"Privacy Act" means the Australian Privacy Act 1988 (Cth), the Notifiable Data Breach Scheme (Australia), and the Australian APPs;
"Property Application" means any relevant planning for building works or property subdivision or consolidation, or development application;
"SaaS Customers" means Customers who receive the Hosted Services electronically on a Subscription basis.
"Security Standard" means a reasonable standard of network security measured by the standards generally adopted by the cloud service provider or datacentre operator service provider of PropCode;
"Services" means any services that PropCode provides to the Customer, or has an obligation to provide to the Customer, under this Agreement, including support services with respect to the PropCode Software and PropCode Platform, and as described in the Documentation, including reporting, and the Hosted Services. The Services may be one time purchases or downloads or access to the PropCode Platform which are used interactively during the period of a Subscription;
"Software" : the online software applications provided by PropCode as part of the Services;
"Subscription" means the SaaS Customer's subscription to use the Hosted Services in consideration for payment of Fees for the Subscription Fee Period, which may limit access to the PropCode Platform and Services to number of approved individuals, users or seats,
"Subscription Fee Period" the default period is monthly, unless otherwise stated by PropCode to the Customer in writing, which fee may be calculated by number of individuals, users or seats granted access to the PropCode Platform and Services by PropCode;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2 ;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule D (Acceptable Use Policy), including any amendments to that documentation from time to time;
"Third Party Service Provider" means service providers to Customer not being PropCode;
"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services;
"Virus" any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses, malicious code, ransomware and other similar things or devices;
"Vulnerability" a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person's legal and personal representatives, successors or permitted assigns].
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
- References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
Term and Contract Formation
- Commencement: The Agreement shall come into force upon the Effective Date.
- Contract Formation: This Agreement is formed on a click wrap basis upon the earlier of the SaaS Customer confirming its agreement electronically to PropCode; or upon first use by the SaaS Customer of the Services.
- Continuation: The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17 or any other provision of these Terms and Conditions.
Platform Registration: If a Customer, an authorised representative of a Customer submits an application to register on the Platform, that Party:
- will be deemed to have warranted that during the application process that Party provided truthful and accurate information only;
- will be deemed to have warranted that the Party applied for registration on the Platform on behalf of, and with the authority and consent of, any entity that the Party entered into the Platform account registration form;
- will be deemed to have irrevocably agreed to be jointly and severally liable for any breach of these Terms and Conditions by that entity.
License: PropCode hereby grants to the Offline Customer a non-exclusive licence to use the object code of the Software during the Term to the extent required to receive the Services whether through any interactive interfaces or through downloaded documents or files,. PropCode hereby grants to the SaaS Customer a non-exclusive licence to use the Hosted Services and object code of the Software during the Term whether through any interactive interfaces or through downloaded documents or files.
License Limitations: The licence granted by PropCode to the Customer under Clause 3.1 is subject to the following limitations:
- the Customer holds a valid license to use any third party software;
- the integrated Services may only be used by such number of individuals, users, seats as are permitted by PropCode of the Customer's officers, employees, sub-contractors, agents, affiliates or related third parties;
- the Customer must not sub-license its right to access and use the Services.
- the Customer must not permit any unauthorised person or application to access or use the Services;
- the Customer must not make any alteration to the Platform, except as permitted by the Documentation;
- the Customer is not granted a right to source code of the Software or the Services; and
- the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Services without the prior written consent of PropCode.
Access Security: The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Services.
Availability: PropCode shall apply Good Industry Practice to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
Acceptable Use Policy: The Customer must comply with Schedule D (Acceptable Use Policy).
Damage or Impairment: The Customer must not use the Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
Excessive Resources: The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by PropCode to its other customers using the Platform; and the Customer acknowledges that PropCode may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
Fraudulent Use: The Customer must not use the Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
No Rights to Source Code: For the avoidance of doubt, the Customer has no right to access the software code (including beta object code, intermediate code and source code) of the Platform, either during or after the Term.
Standards: In the provision of the Services, PropCode shall apply Good Industry Practice to comply with:
- the Privacy Act, and the DPA;
- the Cyber Risk Standard; and
- the Security Standard.
- Authority: The Customer confirms that it has authority to use the Services.
- Rights to Process Customer Data: The Customer grants to PropCode a non-exclusive right to the copy, collect, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data in accordance with the DPA to the extent reasonably required for the performance of PropCode's obligations and the exercise of PropCode's rights under the Agreement. The Customer also grants to PropCode the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
- Notifiable Data Breach: In the event of a data breach affecting Customer Data, and/or a Notifiable Data Breach, PropCode as Data Processor, shall notify the Customer's Representative and Data Protection Officer as soon as practicably possible after first being made aware..
- Consents: Each Party shall ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to comply with its obligations in the Agreement.
- Suspension: PropCode may suspend the provision of the Services if any amount due to be paid by the Customer to PropCode under the Agreement is overdue, and PropCode has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
- Responsibility: Customer will provide all necessary governmental, legal and regulatory licences, consents, permits, information, documentation co-operation, support and advise as are reasonably necessary to enable PropCode to perform its obligations under the Agreement;
Background IP - No assignment of Intellectual Property Rights
- Ownership to Background IP: Each Party retains ownership to its Background IP.
- No Assignment: Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from PropCode to the Customer, other than the rights specified in clause 3.2 (License), or from the Customer to PropCode.
- Payment of Fees: The Customer shall pay the Fees to PropCode in advance unless otherwise stated, and accordance with these Terms and Conditions.
- GST: All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST and any applicable value added taxes, which will be added to those amounts and payable by the Customer to PropCode.
- Variation: PropCode may elect to vary any element of the Fees by giving to the Customer not less than 30 days' written notice of the variation.
- Payment Terms: The Customer must pay the Fees to PropCode in advance of the period to which they relate within thirty (30) days of the date of PropCode's invoice.
- Interest on Overdue Moneys: If the Customer does not pay any amount properly due to PropCode under these Terms and Conditions, PropCode may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Reserve Bank of Australia base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
- Compliance with Privacy Act: Each Party shall comply with the Privacy Act with respect to the collection of the Customer Personal Data.
- Right to Disclose: The Customer warrants to PropCode that it has the legal right to disclose all Personal Data that it does in fact disclose to PropCode under or in connection with the Agreement.
- PropCode may Collect and Process Customer Personal Data: Notwithstanding any other provision of the Agreement, PropCode may collect and process the Customer Personal Data.
- Confidentiality in Respect of Customer Personal Data: PropCode and the Customer shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Mutual Security Obligations: PropCode and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
Mutual Warranties: Each Party warrants to the other Party that:
it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
it will comply with all Applicable Laws and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under these Terms and Conditions; and
it has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
PropCode's Skill & Care Services Warranty: PropCode warrants for the Term, that it will provide the Services in accordance with Good Industry Practices with due skill care and diligence at all times.
Customer's Accuracy Warranty: Customer represents and warrants to PropCode that all information provided to PropCode is complete and accurate, and the Customer acknowledges that where the output of the PropCode Platform is dependant upon the accuracy of the information provided by the Customer, such accuracy of the output from the PropCode Platform may be reduced to the extent the Customer's information is not complete and accurate.
Customer's Intellectual Property Warranty: The Customer warrants to PropCode that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any Applicable Law.
Disclaimer: All of the Parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
Acknowledgements, Disclaimers and Warranty Limitations
Australian Consumer Law: PropCode acknowledges that the Customer has consumer rights under the Australian Consumer Law (ACL), which are not excluded by this Agreement. The Customer acknowledges that fitness for intended purpose in respect of the Services are as described in this Agreement.
Nature of the Services: The Customer acknowledges that by entering into this Agreement has elected to receive the Services freely acknowledging that such Services are produced on an automated basis, without specific case by case human intervention, and that the Services may not be fully comparable or identical to similar outputs from an experienced human service provider. The Customer knowingly acknowledges that the Services are a trade off of cost versus accuracy, when compared against like services provided by a human service provider.
Fitness for Purpose: The Customer acknowledges that the Services are a mere tool to assist with the Customer's property investigation requirements which a customer would expect to receive from an autogenerated software tool, but such purpose does not extend to investigations and human expertise holistic accuracy as may be obtained from a human specialist service provider.
Performance, Condition and Quality: The Customer acknowledges that the Services are a mere tool to assist with the Customer's property investigation requirements, but the performance condition and quality do not extend to reporting accuracy of a human specialist service provider.
Errors & Bugs: The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, PropCode gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.
Vulnerabilities: The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, PropCode gives no warranty or representation that the Services will be entirely secure.
Compatibility: The Customer acknowledges that the Services are designed to be compatible only with the PropCode Software and those systems specified as compatible in the Documentation and PropCode does not warrant or represent that the Services will be compatible with any other software or systems.
No Advice: The Customer acknowledges that PropCode will not provide comprehensive planning, construction, quality surveying, legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Services; , except and only to the limited extent that the output from the PropCode Platform reorganises and restates freely publicly available information which is made available without regard for the specific needs and requirements of the Customer, and, except to the extent expressly provided otherwise in these Terms and Conditions, PropCode does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person. The Customer further expressly acknowledges that all information provided in and related to the Services is of an autogenerated nature determined by reference to freely and publicly available information and is not guaranteed to be reliable beyond the extent of the accuracy of such information and should not be construed as specific advice tailored to the needs and requirements of the indiviudual nor relied upon in lieu of appropriate planning, construction or quality surveying advice.
Currency of information: While PropCode will use commercially reasonable efforts to ensure that the information provided in the Services is current, PropCode does not warrant the accuracy, currency or completeness of the information provided as output of the Services, and to the fullest extent permitted by law, excludes all loss or damage howsoever arising including through negligence (except for Gross Negligence) in connection with the information provided in the Services.
Information from Third Parties: The Customer acknowledges that the Services receive information from third parties which information is used to generate output from the PropCode Platform, which includes publicly available information from the Government and other sources relating to the location specified in an order. The Customer acknowledges that PropCode is not responsible for any error or inaccuracy in such information or reports generated where such information is included, or conclusions or outputs based upon such information.
Other limitations: Without limitation of the generality of the foregoing subsections, the Customer acknowledges that complex software is never completely accurate and the PropCode Software and PropCode Platform contain the following limitations:
Any and all reports are fully automated with no human review of the output;
Any and all reports are limited to publicly available data with no guarantee as to the accuracy of such data used in the report;
Any and all reports makes reasonable assumptions and interpretations of particular terms or rules, but such assumptions and interpretations may not be universally shared by all industry participants, councils, planning boards or other government bodies;
The content made available as part of the Services and output from the PropCode Platform generated as part of the Services is suitable only to the specific situation referred to in the particular Service, and may not be applicable to any other process, application, pathway, nor authority;
The use of the Services does not guarantee approval by any authority;
Any indicators within the Services such as green/yes/pass, red/no/fail, yellow/unknown, etc. may have associated qualifications or assumptions and must be interpreted according to the corresponding instructions in the Services; and
The use of the Services does not amount to any guarantee that the Customer will require no further advice or incur no further costs relating to professional services.
The Customer acknowledges the above limitations and that PropCode is not liable for any claims, losses or damages suffered in connection with the Customer relying on any information forming part of the Services which may not be fully accurate or correct.
- Service Levels: PropCode shall supply the Services in accordance with Good Industry Practices.
Security and Cyber
- Anti-Virus & Safeguards: Each Party shall install and maintain commercially available anti-Virus, anti-malware and anti-ransomware protections. PropCode will use all reasonable measures, to safeguard the environment, network, infrastructure and equipment containing the Customer's Confidential Information and Customer Data against a Cyber Security Incident. The Customer will use all reasonable measures, to safeguard the environment, network, infrastructure and equipment containing PropCode's Confidential Information and PropCode data against a Cyber Security Incident.
- Notification: In the event of a Cyber Security Incident affecting Customer Data under the control and responsibility of PropCode, where the Cyber Security Incident has a significant impact to Customer's critical infrastructure, PropCode shall report such Cyber Security Incident to the Customer as soon as reasonably practical upon being made aware.
- Confidential Information – As between the Parties, the Confidential Information of each Party will remain its sole property. All Confidential Information shall be held and protected by the recipient in strict confidence, and shall be used by the recipient only as required to render performance or to exercise rights and remedies under this Agreement. Each Party will protect the other Party's Confidential Information from unauthorized use, access or disclosure with the same measures that the recipient takes to protect its own proprietary information of like importance, but in no event less than reasonable care. No Confidential Information will be disclosed to any third party by the recipient party without the prior written consent of the disclosing party, except that each Party may disclose this Agreement and the other party's Confidential Information to its Related Bodies Corporate, and their respective directors, employees, attorneys, agents, auditors, insurers and subcontractors who require access to such information in connection with their employment or engagement and who are obligated to keep such information confidential in a manner no less restrictive than set forth in this Section. The Party employing or engaging such persons is responsible and liable for their compliance with such confidentiality obligations.
- Required Disclosure – Each Party may disclose the Confidential Information of the other Party in response to a request for disclosure by a court or another Government Agency, including a subpoena, court order, or audit-related request by a taxing authority, if that Party; (i) promptly notifies the other Party of the terms and the circumstances of that request, (ii) consults with the other Party, and cooperates with the other Party's reasonable requests to resist or narrow that request, (iii) furnishes only information that, according to written advice of its legal counsel, that Party is legally compelled to disclose, and (iv) uses reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded the information disclosed.
- Reasonable Care – Each Party agrees to be responsible for enforcing the terms of Sections 15.1 and 15.2 above and to take such action, legal or otherwise, to the extent necessary to cause anyone having access to the Confidential Information to comply with the terms and conditions set forth herein (including all actions that the Customer would take to protect its own trade secrets and confidential information but with not less than reasonable care).
- Continuation of Obligation -These obligations of confidentiality continue for a period of eighteen (18) months after the expiry of this Agreement, and shall cease to apply to any particular item of Confidential Information once it becomes public knowledge other than by any act or default of either Party.
Limitations and exclusions of liability
Excluded Heads of Liability: Nothing in these Terms and Conditions will:
limit or exclude any liability for death or personal injury resulting from negligence;
limit or exclude any liability for fraud or fraudulent misrepresentation;
limit any liabilities in any way that is not permitted under applicable law; or
exclude any liabilities that may not be excluded under applicable law.
Liability Limitations: The limitations and exclusions of liability set out in this Clause 16 and elsewhere in these Terms and Conditions:
are subject to Clause 16.1; and
govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
Force Majeure: Neither Party shall be liable to the other Party in respect of any losses arising out of a Force Majeure Event.
Consequential Loss: Neither Party shall be liable to the other for Consequential Loss, or special or indirect, incidental, or punitive damages, whether arising under statute, in contract, or tort (in each case including negligence) under or in respect of this Agreement, save and except for claims arising from wilful misconduct or Gross Negligence, even if advised of or aware of the possibility of such losses.
Mutual Liability Cap for Direct Damages: To the maximum extent permitted by law, excluding a breach of Section 15 (Confidentiality), and excluding claims for losses arising under Section 17.1 (Excluded Heads of Liability and Gross Negligence and wilful misconduct), the maximum liability of either Party to the other Party for claims for losses or damages arising from a breach of this Agreement, shall not exceed in aggregate for all claims, an amount equal to the lesser of (i) 100% of the amount paid by the Customer to PropCode for Services provided during the twelve (12) month period immediately preceding such claim or (ii) if the claim arises in the first twelve (12) months of the Term an amount equivalent to the months of fees paid by the Customer prior to the claim being made which correspond to that period.
Customer's Indemnity to PropCode: The Customer shall indemnify and shall keep indemnified PropCode against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of:
use of the Platform by the Customer, including claims, losses or damages arising from building or construction, non-construction, real property transaction costs, and other fees and charges in reliance on output from the PropCode Platform, including without limitation the cost of materials, fees and charges to contractors and Government Agencies, the availability of certain development opportunities, and others;
a breach of the Customer's intellectual property warranty;
any breach by the Customer of these Terms and Conditions;
a negligent act or omission by Customer;
(each of the above a "Customer Indemnity Event").
Indemnity Claims: PropCode will:
upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer.
Indemnity Limitations: The indemnity protection set out in this Clause 17 shall be subject to the limitations and exclusions of liability set out in the Agreement.
Extension to GST: Where one Party to this Agreement is obliged to indemnify the other Party, such indemnity shall extend to any amount representing GST to the extent that the other Party has been unable to obtain credit or repayment of this GST.
Force Majeure Event
- Force Majeure Event: If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
- Termination For Cause: Either Party may terminate the Agreement with immediate effect from written notice if the other Party is in breach of any material obligation under this Agreement, and, if the breach is capable of remedy, that Party has failed to remedy such breach within sixty (60) calendar days of receipt of notice so to do.
- Termination for Insolvency: Either Party may terminate the Agreement with immediate effect from written notice specifying the Insolvency Event, if the other Party suffers an Insolvency Event.
- Termination from Force Majeure: If PropCode is prevented from performing its obligations by an event of Force Majeure for more than four (4) weeks, either Party may terminate this Agreement by giving written notice to the other Party. Such termination shall not be deemed to be for cause.
Effects of termination
- Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions which shall survive and continue to have effect:
|Background IP - No Assignment of Intellectual Property Rights
|Acknowledgements, Disclaimers and Warranty Limitations
- Accrued Rights: Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either Party.
- Payments : Without prejudice to PropCode' other legal rights, within 30 days following the termination of the Agreement for any reason, the Customer must pay to PropCode any Fees in respect of Services provided to the Customer before the termination of the Agreement.
Service of Notices: Any notice from one Party to the other Party under these Terms and Conditions must be given by one of the following methods:
sent by email to the relevant email address specified through the Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server; or
sent using the contractual notice mechanism incorporated into the Services, in which case the notice shall be deemed to be received upon dispatch,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
- Subcontracting: Subject to any express restrictions elsewhere in these Terms and Conditions, PropCode may subcontract any of its obligations under the Agreement.
- No Waiver: No breach of any provision of the Agreement shall be waived except with the express written consent of the Party not in breach.
- Enforcement: If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- PropCode Right to Vary: PropCode may vary the Agreement by giving to the Customer at least 14 days' written notice of the variation.
- Assignment: The Customer hereby agrees that PropCode may assign PropCode's contractual rights and obligations under the Agreement to any third party. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of PropCode assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
- Rights of Third Parties: The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
- Entire Agreement: The Subscription, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
Governing Law and jurisdiction
- The Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia.
- The courts of Sydney, Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.