Terms of Use - Anditi

Terms of Use

 

1 The Basics

1.1 Agreement

(a) These Terms of Use are a legally binding contract between you, the Customer and us regarding your use of the Product.

(b) The Terms of Use are to be read in combination with our Privacy Policy, our Fee Schedule and our Product Description. Unless specifically expressed in a separate Agreement signed by Anditi, these policies and terms make up the whole Agreement between us and you.

(c) For definitions of words and terms, see Schedule 1.

1.2 License

The general form of this Agreement is that we grant you a license (a limited, non-exclusive, non- transferrable licence for the Approved Purpose) to use the Product for a Term, in return for the Fee.

1.2.1 Restrictions and Limitations of Use

(a) This Licence is granted only to you.

(b) Except for the Approved Purpose, you must not distribute, transfer, resell, assign, rent, lease or sublicense any Product or any of your rights under this Licence without our prior written consent.

(c) You must expressly acknowledge us, in a reasonably prominent manner (by display of the Anditi logo or other appropriate attribution), as the source of the Product or any Derivative Works that you may use, copy, modify, display or distribute.

(d) Unless otherwise permitted by us in writing, you must not remove or cause to be removed any Anditi logo, watermark or other Anditi attribution in the Product or any Derivative Works.

(e) You must at all times comply with all requirements and restrictions that Third Party Providers may impose directly, or indirectly by imposition on us, in relation to their respective products and/or services.

2 Your Obligations

It is your responsibility to make sure you look after your account and usage. If you do not abide by your obligations, or if you violate the Agreement, we may suspend or terminate your account, as outlined in clause 9.

2.1 Your Account

(a) To access the Product, you first create an Anditi user account. You may also need to create an account for your organisation, depending on your subscription type. You acknowledge:

(i) you are responsible for protecting the confidentiality of your account and passwords;

(ii) use of your password or account by any other person may result in the cancellation of your account;

(iii) you agree to immediately notify us of any unauthorised use of your password or email address or any breach of security of which you have become aware;

(iv) you are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents); and

(v) you may create additional user accounts for users within your organisation if you are an Administrator within your organisation.

(b) When you register for an account, you may be required to provide us with some information about yourself, such as your phone number or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate at all times.

2.2 Access and Fair Use

(a) Your access to the Website and the Product will begin when you pay the Fee, and continue for the Term. At the end of the Term, you will automatically be renewed and billed again at the same level, unless you chose to cancel your subscription before the next billing cycle.

(i) Information regarding billing dates, Fees and invoicing can be found in the Fee Schedule.

(b) To ensure fair use, in situations where we believe you are using the Product excessively or inappropriately and slowing it down for other customers, we may have to take action to make it

fair for everyone.

(c) You will not use the Product or Website for any illegal and/or unauthorised use.

(d) You will not use the Product or the Website in connection with any commercial endeavours except those that are specifically allowed by the Approved Purpose.

3 Free Trial Period

We may offer certain products to you at no charge, including free accounts and trial use for a limited time period.

(a) Subject to your compliance with these Terms of Use and the law, we grant you a limited, non-exclusive, non-transferrable licence to use the free trial Products subject to any additional terms that we specify.

(b) The free trial period will be capped at 14 days with access to 10 Sites, after which time you will be prompted to choose a Package and Monthly Quota and enter payment details to continue accessing the Product.

(c) You may only use the Product for the purpose of determining if you wish to purchase a licence from us and at no time use the Product for any commercial or illegal purpose.

(d) We reserve the right to terminate your Licence at any time, in accordance with clause 8.

4 Monthly Subscription

a) Your monthly subscription will commence once you create your paid account, and continue as outlined in clause 5 below.

b) Your level of access to the product will be determined by your Package, which you can upgrade as outlined in clause 9.1.

c) Once you search and confirm a Site, it will be accessible to you for a period of 90 days.

(i) If you are registered under an organisation account, the Site will also be accessible to your colleagues during the 90 day period.

d) If the Pro Feature is available at a Site, you can choose to activate it for that particular Site.

(i) Once activated, the Pro Feature will remain active on the Site for the remaining of the ninety (90) day period.

(ii) The Pro Feature will be charged as a one off Fee, as outlined in the Fee Schedule and invoiced in accordance with clause 6.

e) If you access more Sites than included in your Monthly Quota, you will be charged an Additional Site Fee, as outlined in the Fee Schedule.

5 Payment

(a) Fees will be charged in accordance with the Fee Schedule available on the Website.

(b) All payments made in the course of your use of the Product are made using Stripe (‘Stripe’). You acknowledge;

(i) in using the Website, the Product, or when making any payment in relation to your use of the Product, that you have read, understood and agree to be bound by the Stripe terms and conditions which are available on their website.

(c) You acknowledge and agree that where a request for the payment of the Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Fees.

(d) We will only provide you with a refund of the Fee in the event we are unable to continue to provide the Product to you, or if we make a decision, at our absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Fee that remains unused for the billing period.

6 Invoicing

(a) Anditi will invoice you for the Fees as follows:

(ii) the Package Fee will be invoiced monthly in advance; and

(iii) the Additional Site Fees will be invoiced monthly in arrears.

(b) The invoice will be itemised showing the breakdown of Fees.

(c) The invoice will be issued monthly on the billing date.

(d) The Customer will pay to Anditi the amount stipulated in the invoice in full within 14 days of issue.

(e) Any discrepancy in Fees owed but not yet invoiced (for example, as a result of a miscalculation), may be invoiced by Anditi to the Customer as a separate invoice and will be payable within 14 days of issue.

7 Title

(a) All Intellectual Property Rights in the Product will remain with us.

(b) Nothing in this agreement will, unless expressly stated, affect the ownership of prevailing Intellectual Property Rights in any component of the Product or the Derivative Works.

(c) You must:

(i) immediately notify us if you become aware of any actual or potential unauthorised use of the Product or any actual or potential breach of our Intellectual Property Rights in the Product; and

(ii) co-operate fully with us in taking any and all steps required by us in connection with any infringement of our Intellectual Property Rights in the Product.

8 Warranties

(a) We warrant that:

(i) we have exercised due care and skill in compiling each component of the Product; and

(ii) no additional authorisation, consent, approval, filing or registration with any court or government department, commission, agency or instrumentality is or will be necessary or required for us to enter into and give effect to this agreement.

(b) We take no responsibility for interpretive or user error by you.

(c) We both (you and Anditi) agree to use all reasonable endeavours to ensure that no viruses or similar programming effects are coded or introduced into the Product. We both agree to ensure that reasonable anti-virus software is operating in all relevant respects at all relevant times.

(d) You acknowledge that the location information that the Product is derived from may be subject to privacy legislation and contractual restriction on its publication. We take no responsibility for any breach of privacy legislation by any person in relation to the location information.

(e) You acknowledge that the Pro Add-on features will only be available on a case-by-case basis.

(f) While we have made every effort to ensure the accuracy, reliability, completeness and suitability of the location information, we do 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. We accept no responsibility and disclaim all liability for any losses, damages or costs as a result of the use or reliance on the location information.

9 Variation, Termination and Suspension

9.1 Variation

(a) You can upgrade:

(i) your Package at any time during the Term and will be charged the new Package Fee as outlined in the Fee Schedule on the Website;

(ii) your Monthly Quota, with a corresponding increase to your Fee as outlined in the Fee Schedule on the Website, effective from the following invoice period.

(b) If you upgrade your Package, you cannot downgrade during the Term unless explicitly agreed to in writing by us.

(c) We retain the right to vary the Fee Schedule at any time and will give you at least 14 days’ notice prior to the change.

(d) Any changes to the Fee Schedule will come into effect at the end of the Term, unless oyu upgrade your Package, in which case you will be charged in accordance with the Fee Schedule at the time of the upgrade.

9.2 Termination

(a) For the purpose of this clause, each of the following is a ‘Terminating Event’:

(i) the breach or threatened breach by either us or you of material obligations under this agreement;

(ii) the appointment of any type of insolvency administrator in respect of the property or affairs of either us or you;

(iii) the entry or proposed entry by either party into any scheme, composition or arrangement with any of our or your creditors;

(b) This agreement may be terminated immediately by us or you on the happening of a Terminating Event.

(c) If a Terminating Event occurs, whoever (you or us) is affected by the event must give to the other notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not solved or the undertaking not given (as the case may be) within 14 days whoever is affected by the event may agree to waive their rights under this clause if satisfied that the happening of the Terminating Event has not in any way prejudiced their position under this agreement.

(d) Nothing in this clause prevents whoever is affected from pursuing such other action as may be available to it arising out of the Terminating Event, subject to any exclusion or limitation on liability set out below.

9.3 Suspension

We can, with absolute discretion, suspend access to the Product where, in our opinion:

(a) the Product is being improperly used for criminal activity or misuse of technology.

(b) where any Fees payable remain outstanding 15 days following issue of an invoice and for which no satisfactory explanation has been given;

(c) you misuse the product or become aware of a flaw in the product which allows you access to or use of a Product (or component there of), that you have not subscribed to, and do not immediately notify us.

10 Liability

The liability of either of us (you or us) in damages (including special, indirect or consequential

damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) resulting from an act or omission in connection with our obligations under this agreement, is hereby excluded. To the extent such liability cannot be excluded, it will be capped at the amount paid by you to us under this agreement. If it relates to a breach of a third party’s Intellectual Property Rights, legal action may be taken in accordance with clause 13.

11 Implied Terms

(a) Subject to clause 11(b), any condition or warranty which would otherwise be implied in this agreement is hereby excluded.

(b) Pursuant to ss 64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the Customer establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited:

(i) in the case of goods, to any one of the following as determined by us:

(A) the replacement of the goods or the supply of equivalent goods

(B) the repair of the goods;

(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(D) the payment of the cost of having the goods repaired; and

(ii) in the case of services, to any one of the following as determined by us:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

12 Confidentiality

(a) Neither of us (you and Anditi) will, without the prior written approval of the other, disclose any Confidential Information.

(b) Neither of us (you or Anditi) will be in breach of clause 12(a) in circumstances where we are legally compelled to disclose the other’s Confidential Information.

(c) Both of us (you and Anditi) will take all reasonable steps to ensure that our employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other’s Confidential Information.

(d) Notwithstanding any other provision of this clause, we (you and Anditi) may disclose the terms of this agreement (other than Confidential Information of a technical nature) to our related companies, solicitors, auditors, insurers and accountants.

(e) This clause will survive the termination of this agreement.

13 Dispute Resolution

(a) If either of us (you or us) encounter a problem relating to these Terms of Use, we both agree to:

(i) notify each other in writing of any dispute within 30 days of when it arises;

(A) notice to Anditi shall be sent [email protected]; and

(ii) make attempts to come to an informal resolution prior to any demand for arbitration.

(b) If no resolution can be found within 90 days, we both agree to:

(i) a dispute resolution technique (for example, expert determination) and procedures to be adopted;

(ii) the timetable for all steps in those procedures;

(iii) the selection and compensation of the independent person required for such technique;

(iv) the mediation rules of the Law Society of New South Wales; and

(v) request the President of the Law Society of New South Wales or the President’s nominee to select the mediator and determine the mediator’s remuneration.

14 Force Majeure

(a) If either of us (you or Anditi) is unable to perform or is delayed in performing an obligation under this Agreement (except for any obligation to pay money, including Fees) because of an event beyond our reasonable control (Force Majeure Event):

(i) that obligation is suspended but only so far and for so long as either of us is affected by the Force Majeure Event; and

(ii) whoever is affected will not be responsible for any loss or expense suffered or incurred by the other as a result of, and to the extent that, whoever is affected is unable to perform or is delayed in performing their obligations under this Agreement because of the Force Majeure Event.

(b) If a Force Majeure Event occurs, whoever is affected by the Force Majeure Event must:

(i) promptly give the other notice of the Force Majeure Event and an estimate of the non- performance and delay;

(ii) take all reasonable steps to overcome the effects of the Force Majeure Event; and

(iii) resume compliance as soon as practicable after the Force Majeure Event no longer affects it.

15 General

(a) Any rights not expressly granted herein are reserved.

(b) If one or more of the terms of these Terms of Use are found to be invalid, illegal or

unenforceable in any respect, the validity, legality and enforceability of the remaining terms will not be affected.

(c) We reserve the right at any time to amend these Terms of Use and/or to impose new and/or additional terms or conditions on your use of the Product.

(d) These Terms of Use:

(i) supersede any prior agreement or understanding;

(ii) are governed by the Laws applicable in New South Wales;

(e) We both submit to the non-exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.

(f) All Fees exclude GST and other taxes unless expressly

Schedule 1 – Definitions

In this agreement, unless the context indicates a contrary intention:

Anditi means Anditi Pty Ltd, and includes ‘we, us and our’.

Additional Site means Sites accessed outside of the Monthly Quota.

Approved Purpose means internal business use of the Product in a way that does not make the Product or any Derivative Works available to any third party, except where it is used in a Fixed-layout Report.

Confidential Information means information that is by its nature confidential but does not include:

(a) information already known to the receiving party at the time of disclosure by the other party; or

(b) information in the public domain other thanas a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.

Customer means the person or entity who or which is acquiring the right to use the Website under these Terms of Use.

Derivative Works means any new work created by the Customer that includes or embeds all or part of the Product.

Fee means the cost of the Product, as outlined in the Fee Schedule on the Website.

Fee Schedule means the information relating to Packages and Fees on the Website, which may be updated or amended by Anditi from time to time.

Fixed-layout Report means the extracted image of a Site, for use in a report, that does not contain georeferenced information.

Force Majeure Event means an occurence when a party is unable to perform or is delayed in performing an obligation under this Agreement (except for any obligation to pay money, including Fees) because of an event outside that party’s control.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in relation to any copyright, trade marks, designs, patents, layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, scientific, literary or artistic fields.

Monthly Quota means the Site bundle size you’ve chosen, as outlined in the Fee Schedule and on the product pages on the Website.

Package means the subscription level you choose when you purchase the Product.

Privacy Policy means the Privacy Policy on the Website.

Product means any imagery or data based product offered by us via the Website, as described on the Website.

Product Description means the information relating to the Product, features and inclusions on the Website which may be updated or amended by Anditi from time to time.

Pro Add-on means the additional analytics feature set, as described in the Product Description on the Website.

Site means a geographical area of interest defined by a bounding polygon with size the lesser of the area required to cover a deposited plan lot within Australia or New Zealand, and 10,000 square metres. Where a deposited plan lot does not fit inside a 10,000 square metre polygon, the location of the centre of the polygon within the lot can be selected by you.

Term is the duration of the subscription you purchase on the Website.

Third Party Providers means Anditi’s suppliers of products and services.

Website means all web pages and sub-sites available within the anditi.com domain www.anditi.com.

You means the Customer, and includes ‘You, you and your’.