1.1 Permission to use the Software is conditional upon you reading and accepting all the terms of this licence agreement.
1.2 You acknowledge that you have read the entire agreement and that you agree all terms of this agreement by checking the checkbox upon you registering for an account.
1.3 You warrant that you have the capacity to and are authorised to enter into a binding agreement on the terms of this Licence Agreement.
2.1 We grant you a non-exclusive, non-transferable, licence to use the Software on the terms of this agreement specifically for the purpose of siting houses on land allotments in the course of your day to day business activities
2.2 We grant you a non-exclusive, non-transferable licence to use the Documentation on the terms of this agreement.
2.3 You acknowledge that there is no transfer to you of any right in respect of the Software or the Documentation other than the licences granted in clauses 2.1 and 2.2.
2.4 In addition to the licensing conditions pursuant to clause 2.1, you will ensure that the Software is used only by the account holder for single user accounts and any listed user under a small team accounts.
2.5 You agree that you will not share your login details with others. Any breach of this may result in cancellation of your account.
3.1 You must not and must not allow any other person to:
(a) except as expressly permitted by non-excludable laws, copy, alter, modify, tamper with, decompile, reverse engineer or attempt to reverse engineer, the Software, or use the Software to develop other software;
(b) copy the Documentation;
(c) permit the Software to be combined with or incorporated in other software;
(d) use the Software to supply hosting services or bureau services to any person; or
(e) infringe any of our Intellectual Property Rights in respect of the Software or otherwise.
3.2 You must:
(a) use the Software only in accordance with the Documentation;
(b) conduct your own due diligence on the integrity and accuracy of the Documentation we create based on the floor plans you provide to us, to ensure our output is accurate and you accept full responsibility for the accuracy of that output;
(c) ensure that the Software is used only by people trained to use it;
(d) comply with our support and operating procedures current from time to time; and
(e) comply with all reasonable directions issued by us regarding use of the Software.
(f) ensure you have unfettered permission to use any files uploaded for use in our software.
(g) notify us of any substantial programme errors you identify in your use of the Software
3.3 We will:
(a) investigate any programme errors you identify and report to us and at our expense correct any actual errors within 15 business days following receipt of your report
(i) if You are unsatisfied with any corrections we implement you may terminate this Agreement subject to payment of any moneys due and payable at the date of termination and without entitlement to a refund of any moneys paid
(b) use reasonable endeavours to correct any error related to the Software which renders the Software unusable within 7 business days of the error arising
4.1 Your use of the Software will be activated on payment of your first Monthly Subscription Fee
4.2 Following activation, your use of the Software will be deactivated if during the term of the Licence agreement you do not pay your Monthly Subscription Fee when due for payment.
You acknowledge that the Documentation contains sufficient information for the adequate use of the Software, except to the extent we have notified you of any omission or deficiency or of any variation that we consider necessary for the proper use of the Software.
6.1 All fees are payable via direct debit of your nominated credit card
6.2 You hereby request and authorise Landconnect to arrange for any amount Landconnect may debit or charge you to be debited from your nominated credit card account held at the financial institution nominated by you.
6.3 All fees are made payable via Braintree Payment gateway, a PayPal company.
6.4 A receipt of payment will be provided after each successful payment.
6.5 In the event a payment is denied or cannot be completed on your monthly renewal date, we will attempt to debit your nominated credit card over 5 consecutive days. If direct debit payment fails after 5 direct debit attempts, your account will be immediately suspended.
6.6 All Fees are non-refundable.
6.7 If you dispute any Invoice, you must pay any undisputed amount and must notify us in writing within seven days after receipt of the Invoice of the reason for the dispute. The dispute will then be dealt with under clause 17. If the outcome of the dispute resolution process is that some or all of the disputed amount should properly have been paid, you must pay that amount together with interest at the cash target rate specified by the Reserve Bank of Australia on the day that the payment was due, plus 3%, calculated at daily rests from the original due date.
6.7 The Monthly Subscription Fee and any additional fees payable under this agreement are subject to adjustment, by us giving you 30 days written notice.
6.8 All fees, charges and other amounts referred to in this agreement are exclusive of Government Charges.
6.9 If any supply under this agreement is a taxable supply or results in Government Charges, the party making the supply:
(a) may, in addition to any payment for the supply, recover from the recipient the amount of the Government Charges applicable to the supply; and
(b) must issue a tax invoice to the recipient within 28 days after making the taxable supply.
You are responsible for the use, supervision, management and control of the Software and Documentation. You must ensure that the Software is protected at all times from misuse or any form of Unauthorised Use.
8.1 We will provide access to the software to you in respect of the Software in accordance with the provisions of this clause 8.
8.2 The Monthly Subscription Fee is a recurring fee payable monthly in advance from commencement of the Licence.
8.3 A Monthly Subscription Fee is payable on a per user basis.
8.4 If you do not wish to continue use of the Software you may request your account be cancelled at any time but no part of the prepaid Monthly Subscription Fee will be refunded.
8.5 If you do not pay the Monthly Subscription Fee in accordance with our payment terms your access to and use of the Software will be terminated.
8.6 Access to the software does not include support, advice or assistance relating to general housing construction, town planning, property development, finance, evaluation or other non-Software issues, or issues arising from computer hardware, operating systems, other software, data migration or conversion or telecommunications systems.
8.7 After the end of the period for which you have paid the Monthly Subscription Fee we may discontinue access to the software at any time without notice to you.
8.9 The operational hours of the Help Desk are 24 hours per day seven days per week excluding public holiday. We reserve the right to alter the operational hours of the Help Desk from time to time.
8.10 We may vary the terms of this clause 8 from time to time by notice to you. Any variations will become effective at the end of your then-current period of Access to the Software, unless you and we agree otherwise.
8.11 You acknowledge and agree that to the extent you or any of your users of the software seek our assistance regarding individual sitings we may in our absolute discretion provide assistance on the condition that such assistance will at all times be provided on a no liability basis and you forever release us from any and all claims of whatsoever nature regarding our provision of assistance to you, your users, your employers, your contractors and your customers or any third party suppliers.
(a) You acknowledge and agree that any assistance we provide will be based solely on the information provided to us, and
(b) You acknowledge and agree that we are not responsible for any inconsistencies in information provided to us, including any inconsistencies within plans of subdivisions or land title dimensions, and
(c) You acknowledge and agree that you are solely responsible to conduct due diligence on all information relating to plans of subdivision and land title dimensions, and
(d) You acknowledge and agree that any assistance or correspondence we provide does not constitute the provision of advice by us, and
(e) You acknowledge and agree that any assistance or correspondence we provide will at all times be treated by you, your users, your employers, your contractors, your customers or any third party suppliers as a point of reference requiring verification by you, your users, your employers, your contractors, your customers, any third party suppliers and any independent third party experts, and
(f) You indemnify us and our officers, employees and agents from and against any loss (including reasonable legal costs and expenses) and damages or liability in relation to us providing assistance on any individual siting(s).
(e) You acknowledge that accuracy of the plans and individual sitings are completely dependent upon the files that you upload to use within the software.
9.1 We do not warrant or represent that the Training services or participation in the Training services will result in particular level of competence or any other particular result.
10.1 We warrant that:
(a) for the duration of the Warranty Period, the Software will operate in accordance with the Documentation in all material respects;
(b) use of the Software and Documentation in accordance with this agreement does not infringe the Intellectual Property Rights or moral rights of any person; and
(c) we have all necessary rights to grant the licences under clauses 2.1 and 2.2.
10.2 If, during the Warranty Period, you consider there is a defect in the Software that has the effect that the Software does not operate in accordance with the Documentation in a material respect, you must notify us within the Warranty Period. We will investigate any defects so notified and, upon verification of the existence of the defect, use reasonable endeavours to rectify the defect without additional charge to you.
(a) do not and will not share, distribute or sell your designs, trade secrets or other intellectual property;
(b) will take reasonable care to ensure the security of any files you provide to us;
10.4 The warranties in clause 10.1 do not apply to the extent that breach of those warranties and representations is caused by:
(a) Unauthorised Use; or
(b) your breach of this agreement.
11.1 You acknowledge that:
(a) the Software or the Documentation may contain errors or inaccuracies;
(b) the results produced by the Software are for information purposes only and do not constitute advice or take into account your particular circumstances (see clause 12);
(c) the results produced by the Software may contain errors or inaccuracies;
(d) we are not responsible for the accuracy of plans you upload to the application and you acknowledge that it is your responsibility to ensure the accuracy of the plans you use and their makeup
(e) you rely on your own skill and judgement in using the Software and in determining its suitability for any purpose;
(f) you alone are responsible to provide at your cost the Minimum Requirements as defined in this Licence Agreement to enable your use of the Software; and
(g) the Software may not work in all hardware or software configurations even though the Minimum Requirements are met.
11.2 Subject to this clause 11, we are not liable to you or to any other person for:
(a) any loss or damage of any kind that is directly or indirectly caused by or results from any wrongful, wilful or negligent act or omission by you or any of your officers, employees, agents or contractors; or
(b) any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or loss or damage resulting from wasted management time irrespective of whether:
(i) the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise;
(i) the loss or damage is caused by or relates to Unauthorised Use; or
(i) we or any other person were previously notified of the possibility of the loss or damage.
11.3 Our maximum aggregate liability for all proven losses, damages and claims arising out of this agreement, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the amount of the Monthly Subscription Fee paid by you to us under this agreement.
11.4 Any representation, warranty, condition, guarantee or undertaking that would be implied in this agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
11.5 Nothing in this agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law, the Completion and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.
11.6 To the fullest extent permitted by law, our liability for a breach of a non-excludable guarantee referred to in clause 11.5 is limited, at our option, to:
(a) in the case of goods: the replacement of the goods or the supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and
(b) in the case of services: the supplying of the services again or payment of the cost of having the services supplied again.
11.7 You indemnify us and our officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified where such loss or liability was caused by:
(a) Unauthorised Use of the Software;
(b) your breach of your obligations under this agreement; or
(c) your wilful, unlawful or negligent act or omission.
12.1 You acknowledge that the results produced by the Software involve an analysis of data input by you. Accordingly, you acknowledge that before acting on any results produced by the Software, you must consider whether it is appropriate to do so in light of your particular objectives.
12.2 We do not guarantee that the Software is or will be error free for all possible systems, combinations of software and input variations.
12.3 You acknowledge that software in general is not error free and agree that the existence of such errors will not constitute a breach of this agreement. We do not warrant that the Software will be free from all known computer viruses and you are solely responsible for scanning the Software for computer viruses.
12.4 It is a condition of this agreement that you test the Software for compatibility with your systems, existing software and input permutations. You must audit the output results of the Software on a regular basis to ensure the ongoing suitability and integrity of the Software.
12.5 You agree that we do not warrant or represent that the Software or your use of the Software will result in particular level of profitability, return on investment or any other particular financial or non-financial result.
12.6 The Software is provided “As Is” without warranty of any kind. We do not warrant that the Software will meet your requirements or that they will be uninterrupted or error-free. To the fullest extent permitted by law, we hereby disclaim all other warranties, whether express or implied, oral or written, with respect to the Software including, without limitation, all implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for any particular purpose and all warranties arising from any course of dealing, course of performance or usage of trade.
13.1 Each party:
(a) may use Confidential Information of the other party solely for the purposes of this agreement;
(b) except as permitted under clause 13.1(c), must keep confidential all Confidential Information of the other party; and
(c) may disclose Confidential Information of the other party only to persons who:
(i) are aware and agree that the Confidential Information of the other party must be kept confidential; and
(ii) either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party; or
(d) may disclose Confidential Information of the other party as required by law or stock exchange regulation;
(e) must take all reasonable steps to secure and keep secure all of the other party's Confidential Information coming into its possession or control; and
(f) must not memorise, use, modify, reverse engineer or make copies, notes or records of the other party's Confidential Information for any purpose other than in connection with the performance of its obligations under this agreement.
13.2 Even though information is the Confidential Information of a party, the other party is not obliged to comply with clause 13.1 in relation to that Confidential Information if:
(a) the Confidential Information has become public knowledge; or
(b) the other party became aware of that Confidential Information from a third person, in circumstances where there was no breach of any obligation of confidence.
13.3 You must not make any public statement about:
(a) the performance of;
(b) the operation of; or
the Software without our prior written consent.
13.4 You are liable to us for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity caused by any breach of confidentiality by you
13.5 You must not
(a) use any Confidential Information to create any software, content or documentation that is similar to the licensed Software,
(b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the licensed Software or encryption for the content (except and only to the extent these restrictions are expressly prohibited by applicable statutory law),
(c) encumber, lease, rent, loan, sublicense, transfer or distribute the licensed Software,
(d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify the licensed Software,
(e) use the licensed Software in an automated process,
(f) use the licensed Software, or allow the transfer, transmission, export or re-export of all or any part of the licensed Software or any product thereof, in violation of any export control laws or regulations of Australia or any other relevant jurisdiction or
(g) permit any third party to engage in any of the foregoing prescribed acts.
13.6 You shall not use the licensed Software for the benefit of any third party without Our prior written consent.
14.1 In the event that proceedings are brought or threatened by a third party against you alleging that your use of the Software constitutes an infringement of Intellectual Property Rights, we may at our option and own expense conduct the defence of such proceedings and you must:
(a) notify us in writing as soon as practicable of any infringement or alleged infringement;
(b) not make any admissions in relation to any infringement or alleged infringement;
(c) give us or our nominee the right to conduct the defence of such a claim, including negotiations for settlement or compromise prior to and after the institution of legal proceedings; and
(d) provide all necessary co-operation, information and assistance to us in the conduct of the defence of such proceedings.
14.2 If the Software is found to infringe a third party’s Intellectual Property Rights, we may at our option:
(a) procure for you the right to continue using the Software;
(b) modify the Software so that it becomes non-infringing;
(c) replace the Software with other software with similar functionality; or
(d) terminate this agreement
15.1 This agreement commences on the Commencement Date and continues until:
(a) a party terminates the agreement in accordance with clause 15.2; or
(b) you unsubscribe.
15.2 A party may terminate this agreement with immediate effect by giving notice to the other party if:
(a) that other party breaches any material term of this agreement not capable of remedy;
(b) that other party breaches any material term of this agreement capable of remedy and fails to remedy the breach within 30 days after receiving notice requiring it o do so; or
(c) an Insolvency Event happens in relation to that other party (whether or not notified).
16.1 On termination of this agreement (other than by you under clause 15.2), the licences granted under clauses 2.1 and 2.2 terminate and you must immediately:
(a) stop using the Software and the Documentation;
(b) return to us all copies of the Documentation in your possession or control;
16.2 You acknowledge that if this agreement is terminated other than by you under clause 15.2, in addition to any other remedies we may have, we may:
(a) retain all fees paid under this agreement;
(b) charge a reasonable sum for work performed in respect of which work no sum has been previously charged
16.3 Clauses 1, 13, 14, 16 and 17 will survive the termination of this agreement.
17.1 Neither party may start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute relating to or arising out of this agreement ("Dispute") unless it has first complied with this clause 17.
17.2 A party claiming that a Dispute has arisen must notify the other party within 10 working days after the event occurring that has given rise to the Dispute.
17.3 Within 7 working days after a notice given under clause 17.2 each party must nominate in writing to the other party a representative authorised to settle the Dispute on its behalf.
17.4 During the 20 working day period after a notice is given under clause 17.2 (or if the parties agree a longer period, that longer period) each party must use its best efforts to resolve the Dispute.
17.5 If a Dispute is not resolved within that time, the Dispute must be referred:
(a) for mediation, in accordance with the then-current version of the Australian Commercial Disputes Centre (ACDC) Mediation Guidelines; and
(b) to a mediator agreed by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current Chief Executive Officer of the ACDC or the CEO’s nomine (or if no such person is available or wiling to nominate a mediator, by the then President of the Law Institute of Victoria).
17.6 The ACDC Mediation Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the ACDC Mediation Guidelines are hereby deemed to be incorporated into this Agreement.
17.7 If the Dispute is not resolved under clause 17.5 within 60 days after referral (or any longer period agreed between the parties) either party may commence proceedings in a court.
17.8 Nothing in this clause 17 prevents a party from seeking urgent interlocutory relief in a court.
18.1 Neither party is liable for any delay or failure to perform its obligations pursuant to this agreement (other than an obligation to pay money) if that delay or failure is due to Force Majeure.
18.2 If a delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party's obligations will be suspended.
18.3 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the agreement on providing notice in writing to the other party.
18.4 If this agreement is terminated pursuant to clause 18.3, we will refund moneys previously paid by you for any gods or services not supplied to you.
(a) This Agreement, including any Invoices, constitutes the entire agreement, and supersedes all prior representations, negotiations, statements, understandings or agreements (oral or written) between the parties about the subject matter of this Agreement.
(b) No terms, requirements or specifications in order forms or other documents provided by you form part of this agreement. Terms set forth in any Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by you. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected.
(c) No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought.
(d) The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.
(e) If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement and the rights and obligations hereunder are personal to You, and may not be assigned or otherwise transferred, in whole or in part, without Our prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Your consent, We may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
This agreement may be varied only by a document signed by both parties that states expressly that it varies this agreement.
Any provision of this agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this agreement in any other case, without invalidating or affecting the remaining provisions of this agreement or the validity of that provision in any other jurisdiction.
23.1 This agreement is governed by the law applicable in the State of Victoria, Commonwealth of Australia and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia.
24.1 Notices under this agreement must be in writing and may be delivered by hand, by mail, by email or by facsimile to the addresses specified on the Invoice.
24.2 Notice will be deemed given:
(a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
(b) in the case of posting, 3 days after dispatch;
(c) in the case of email, within 30 minutes of dispatch of the email
(d) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.
25.1 The following definitions apply unless the context requires otherwise:
Commencement Date means the earlier of the date we provide the Software to you or the date of the Invoice in respect of the Software.
Confidential Information of a party means all confidential information (including trade secrets and confidential know how) relating to that party or a corporation related (as that term is used in the Corporations Act 2001 (Cth) to that party from time to time, of which the other party becomes aware.
(a) any operating manuals and other printed materials including users' manuals, programming manuals, modification manuals, flow charts, drawings and software listings that are designed and provided by us to assist or supplement the understanding or application of the Software; &
(b) hard copies of all Software produced sitings uploaded on your Software account including all facades for a particular floorplan, together with all available structural options for any single floorplan, produced by us based on information provided by you to us, and based on the minimum lot size requirements for a particular floor plan.
Force Majeure means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this agreement. Such circumstances include:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
Government Charges means any taxes, duties or government charges arising out of or in connection with entering into this agreement or making a supply under it, including GST.
Insolvency Event means, in respect of a party, any one or more of the following events or circumstances:
(a) a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;
(b) having a controller (as defined in the Corporations Act 2001 (Cth), receiver, receiver and manager, administrator, liquidator (whether provisional or otherwise) of that party or that party's property or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity;
(c) being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act 2001 (Cth) or any other law;
(d) seeking protection from its creditors under any law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or
(e) any analogous event or circumstance to those described in paragraphs (a) to (d) under any law or in any jurisdiction, unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other party (which approval is not to be unreasonably withheld or delayed).
Intellectual Property Rights means all intellectual property rights, including:
(a) patents, copyright, rights in circuit layouts, registered designs, trade marks and the right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of those rights.
Invoice means our invoice to you in relation to this agreement.
Minimum Requirements means the latest version of Adobe Flash and a secure and reliable Internet connection.
Monthly Subscription cost means the cost for Access To The Software as specified at the time of registration (or otherwise in accordance with the rates notified to you from time to time)
Access To The Software means:
(a) telephone, email and internet support in respect of technical issues and software usage through our Help Desk;
(b) directly related upgrades and improvements of the Software limited to the positioning of a floor plan on a lot (at no additional cost to you);
(c) use of the software.
Software means the Footprints Software owned by Landconnect in its existing form as at the Commencement Date created for the purpose of siting houses on land allotments and which you are licensed to use pursuant to the terms of this licence agreement.
Unauthorised Use means:
(a) an alteration or modification to the Software or Documentation that has not been authorised in writing by us;
(b) use of the Software other than in accordance with the Documentation or for a purpose not reasonably contemplated by us or under this agreement; or
(c) use of the Software in combination with equipment, computer programs or services not set out in the Documentation or otherwise authorised in writing by us.
Warranty Period is the period of 90 days from the date on which you first access the Software.
We, including its different grammatical forms such as our and us, means Landconnect Pty Ltd (ACN 601 164 836) of Level 2, 707 Collins St, Docklands, VIC, 3008
You and your means the person or organisation or company specified in the Schedule.
25.2 The following rules of interpretation apply unless the context requires otherwise:
(a) any use of the verb "includes", or of words such as "for example" or "such as", do not limit anything else that is included in general speech;
(b) the singular includes the plural and vice versa; and
(c) unless otherwise stated, monetary references are references to the Australian dollar.