General Terms & Conditions

This document that sets out the terms on which ARCHISTAR Pty Ltd (ABN62 143 137 115) (“ARCHISTAR”) provides access to the Application and any associated Services to the Subscriber identified in the Product Schedule and the terms on which the Subscriber may use the Application.

These General Terms and Conditions and the signed Product Schedule constitute the legal agreement between ARCHISTAR and the Subscriber (Agreement). Definitions are in clause 25.

1. Application

1.1 Access and use

ARCHISTAR will provide the following to the Subscriber:

(a) access to and use of the Application in accordance with the terms of this Agreement;
(b) regular updates of and enhancements to the Application; and
(c) electronic storage of the Subscriber Data.

1.2 Licence

Subject to the payment of the Charges, ARCHISTAR grants to the Subscriber a limited, non-exclusive, non-transferable and non-sub-licensable right to access and use the Application (through its Permitted Users but only up to the Maximum Number of Permitted Users) in respect of the Locations for the Permitted Purpose during the Term on the terms set out in this Agreement.

2. Services

ARCHISTAR will perform any Services:

(a) in accordance with the provisions of this Agreement; and
(b) with due care and skill, in a proper and professional manner consistent with standard industry practice.

3. Term

3.1 Initial Term

The Agreement will commence on the Subscription Start Date and will continue for the Initial Term.

3.2 Renewal

(i) For Initial terms greater than one month: Following the Initial Term, subject to clause 3.3, the Agreement will automatically renew for subsequent Renewal Periods unless either party provides at least 90 days’ written notice prior to the expiry of the Term.

(ii) For Initial Terms one month or less: Following the Initial Term, subject to clause 3.3, the Agreement will automatically renew for subsequent Renewal Periods unless either party provides at least 7 days’ written notice prior to the expiry of the Term.

3.3 Adjustment to Charges

ARCHISTAR may require an adjustment of the Charges for any Renewal Period. ARCHISTAR will notify the Subscriber of any adjusted Charges at least 60 days prior to the end of the current Term. If the Subscriber does not agree to such an adjustment, the Agreement will not renew and will expire at the end of the current Term.

4. Charges

4.1 Obligation

The Subscriber will pay ARCHISTAR the Charges in the manner set out in the Product Schedule.

4.2 GST

Unless expressly stated otherwise, all Charges quoted under this Agreement are exclusive of GST. If GST is payable on any supply made under this Agreement and the consideration is not expressly stated to include GST, the Subscriber agrees to pay ARCHISTAR an additional amount equal to the GST payable on that supply, payable at the same time the Charges for the supply are payable.

4.3 Issuing invoices

ARCHISTAR will invoice for Charges in the manner set out in the Product Schedule.

4.4 Payment

The Subscriber must pay all undisputed invoices provided by ARCHISTAR within 30 days of the date of issue. All payments must be made without deduction, withholding, set-off or counterclaim.

4.5 Interest

Any undisputed amounts not paid when due will be subject to interest equal to a rate that is 10% per annum above the cash rate last published by the Reserve Bank of Australia, and will be calculated on a daily basis.

4.6 Suspension

If the Charges are not paid to ARCHISTAR as per the agreed payment terms, ARCHISTAR may suspend access to part or all of the Application until the Charges are paid.

5. Permitted Users

5.1 Appointment of administrator

The Subscriber must appoint an administrator who is responsible for issuing Access Details to Permitted Users.

5.2 Maximum Number of Permitted Users

Access Details must only be provided to the Maximum Number of Permitted Users. The Subscriber will ensure that only the Maximum Number of Permitted Users will access and use the Application.

5.3 No sharing of accounts

Each Permitted User must have their own account and own Access Details, which must not be shared with or used by others.

5.4 Access Details

The Subscriber must ensure that Permitted Users:

(a) keep the Access Details confidential in accordance with clause 18 and ensure that the Access Details are not disclosed to or used by any person other than the relevant Permitted User (Unauthorised Person); and
(b) promptly notify ARCHISTAR if it becomes aware, or has reason to suspect, that any of the Access Details have been disclosed to, or used by, an Unauthorised Person.

5.5 Responsibility for Permitted Users

The Subscriber is responsible for the acts and omissions of its Permitted Users in respect of the Application, as if they were those of the Subscriber.

6. Subscriber Data

6.1 Ownership of Subscriber Data

The Subscriber is and remains the sole and exclusive owner of all right, title and interest (including any Intellectual Property Rights) in the Subscriber Data.

6.2 Licence

The Subscriber grants ARCHISTAR a perpetual, non-exclusive license to use any Subscriber Data for the purposes of operating the Application for the Subscriber, for analysis so that ARCHISTAR can maintain and improve the Application, for statistical analysis, and for creating and distributing reports that aggregate data. Subject to the foregoing, ARCHISTAR will not disclose any of the Subscriber’s data to any third party, unless authorised or requested by the Subscriber.

6.3 Warranties

The Subscriber warrants that Subscriber Data uploaded to the Application:

(a) does not violate any law, misappropriate the rights of any third party or otherwise breach the terms of this Agreement; and
(b) is owned by the Subscriber, or the Subscriber has been authorised to upload the Subscriber Data to the Application.

6.4 Back-up copies

If requested by the Subscriber, ARCHISTAR shall make back-up copies of the Subscriber Data. On reasonable notice from the Subscriber and at the Subscriber’s cost, ARCHISTAR shall make the Subscriber Data available for inspection by the Subscriber or the Subscriber’s auditors.

6.5 Data storage

The Subscriber acknowledges and agrees that:

(a) ARCHISTAR operates a “fair use” policy in relation to the disk storage space and data usage to be made available to the Subscriber for the purposes of the Agreement; and
(b) if ARCHISTAR determines that the Subscriber’s usage of data storage space or data usage is unreasonable or excessive, the Subscriber will comply with any notice from ARCHISTAR limiting Subscriber’s disk storage space and data usage.

7. Subscriber obligations in relation to use of the Application

7.1 Use of the Application

To successfully use the Application, the Subscriber must:

(a) procure and operate the Subscriber Access Facilities;
(b) procure all network and Internet connections and associated network and Internet charges for connection to and use of the Application; and
(c) use the most recent version of the Application.

7.2 Notification of issues

The Subscriber must notify ARCHISTAR as soon practicable if the Subscriber becomes aware of any issue in relation to the Application.

7.3 Subscriber warranties

The Subscriber warrants and agrees that the Subscriber (and the Subscriber will ensure that each Permitted User):

(a) will access and use the Application in accordance with all applicable laws;
(b) will access and use the Application in accordance with the terms of the this Agreement;
(c) will use the most recent version of the Application;
(d) will establish, maintain and enforce security measures to ensure that the Subscriber Data does not contain any malware;
(e) will not remove any trade mark, branding, disclaimer or legal notice incorporated into the Application;
(f) will not distribute, resell, transfer, assign, rent, lease or sub-license the Application to any third party or use the ARCHISTAR Materials on behalf of any third party;
(g) will not modify, duplicate or create any derivative software works based on the ARCHISTAR Materials;
(h) will not use the Application to support, or for display on, any system which is accessible by members of the public;
(i) will not use the Application in any way in connection with direct marketing;
(j) will not use the Application on behalf of or for the benefit of any third party;
(k) will not disclose any Access Details or otherwise enable unlawful access to the Application by any other person who is not a Permitted User;
(l) will not data mine, scrape, crawl, aggregate, copy, extract or attempt to harvest the ARCHISTAR Materials for any purpose, including setting up or adding to another database;
(m) will not use its access to the Application to create a database of images for resale, distribution, sub-license or other commercial purposes or to facilitate mass downloads or bulk feeds of any imagery;
(n) will not decompile, disassemble, translate, replicate or otherwise reverse engineer the Application or any portion of the ARCHISTAR Materials, unless expressly permitted by law to do so;
(o) will not interfere with or violate any security measures implemented in relation to the Application; and
(p) will not circumvent (or attempt to circumvent) any technical limitations designed to protect the integrity of the Application.

8. Rights reserved

ARCHISTAR reserves the right at any time during the Term to:

(a) modify the method of supply and delivery of, or access to, the Application;
(b) upgrade, change, delete, modify, amend, correct, reconfigure, refine or discontinue any features and functionality of the Application for any reason;
(c) require the Subscriber use the most recent version of the Application or any Add-On;
(d) suspend access to or delivery of the Application or any Add-On, for maintenance, system updates, upgrades or changes to the Application or Add-On;
(e) suspend or deactivate the Subscriber or a Permitted User’s access to the Application or an Add-On due to systems or security concerns; or
(f) remove any Subscriber Data without notice.

9. Third Party Agreements

9.1 Acknowledgement

The Subscriber acknowledges and agrees that:

(a) ARCHISTAR’s ability to provide the Application (including the Add-Ons) is subject to its agreements with third party suppliers (Third Party Agreements);
(b) the Subscriber will comply with all requirements and restrictions that third party suppliers may place on the Subscriber directly or indirectly through ARCHISTAR; and
(c) ARCHISTAR does not verify the accuracy or completeness of any data, product or functionality provided by a third party supplier.

9.2 Restriction

The Subscriber acknowledges and agrees that:

(a) a relevant Third Party Agreement may expire or terminate during the Term; or
(b) third party suppliers pursuant to a Third Party Agreement may cease to provide or make available the relevant services, products or data for any reason whatsoever or direct ARCHISTAR to alter the way in which parts of the Application can be provided; and

in such circumstances, ARCHISTAR:

(c) will not be required, nor have any obligation, to provide some or all of the Application to the Subscriber;
(d) will have no liability whatsoever for any failure to provide the affected portion of the Application to the Subscriber; and
(e) may discontinue an Add-On or product feature.

10 Intellectual Property Rights

The parties acknowledge and agree that:

(a) no intellectual property rights are transferred or assigned by the Subscriber to ARCHISTAR or by ARCHISTAR to the Subscriber pursuant to this Agreement; and
(b) no trade mark licence is granted by ARCHISTAR to the Subscriber pursuant to this Agreement.

11 No warranty

The Subscriber acknowledges and agrees that:

(a) except as required by law or as provided in this Agreement, ARCHISTAR does not make any warranties of any kind in respect of the Application or the Services;
(b) the Application is made available subject to the disclaimers, limitations and descriptions set out in the ARCHISTAR Disclaimers, and that any access to or use of the Application by the Subscriber or any Permitted User is subject to the disclaimers, limitations and descriptions set out in the ARCHISTAR Disclaimers;
(c) the information contained in the Application is provided ‘as is’ and the Application:
(i) contains information derived from a variety of internal and external sources and may be based on assumptions; and (ii) is intended only as a guide to further investigation by the Subscriber; and (d) the Subscriber is responsible for ensuring that the Application satisfies its needs.

12 Disclaimer

To the fullest extent permitted by law, all warranties are hereby excluded, and ARCHISTAR and its third party suppliers hereby expressly disclaim all warranties that:

(a) the Application will meet the Subscriber’s requirements, is fit or suitable for the Subscriber’s purpose or intended use, is of merchantable quality, will be compatible with, or suitable for use with the Subscriber Access Facilities;
(b) the Application will be error-free, correct, accurate, complete, reliable, secure, current, up-to-date or otherwise;
(c) the Application will function in an uninterrupted manner;
(d) the statistical methods on which any of the Application are based use appropriate or accurate assumptions; and
(e) the performance of the Application will not be affected by data entry errors, including in relation to data supplied by ARCHISTAR’s third party suppliers.

13 Algorithm-based modelling

The Subscriber acknowledges that:

(a) parts of the Application, such as the Parametric Design Add-On, use algorithm-based modelling to produce computer generated outputs such as site plans, building layouts, estimated development site values and the like, and that such outputs are generated:
(i) by a computer driven mathematical model in reliance on available data; (ii) without the physical inspection of the subject site; (iii) without taking into account any market conditions; and (iv) without identifying observable features or risks which may, together or separately, affect the site; and (b) any outputs generated by the Application are general and for information purposes only and must not be relied upon as professional advice or as an accurate representation of the development potential of the subject site.

14 Remedies

To the extent that any law implies any warranties under this Agreement, then ARCHISTAR’s liability is limited (at ARCHISTAR’s sole discretion) to any one or more of the following in the first instance:

(a) the resupply of the Application or the Services; or
(b) the payment of the cost of resupplying the Application or the Services.

15 Indemnity

The Subscriber indemnifies ARCHISTAR, its directors, agents and employees against all liability, costs (including legal costs on a full indemnity basis), expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) arising out of or in connection with:

(a) any breach by the Subscriber of this Agreement;
(b) the use of the Application by the Subscriber or any Permitted User; or
(c) actions taken or not taken, and advice given by the Subscriber, that relies upon the output of the Application.

16 Limitation of liability

16.1 Limitation of liability

To the maximum extent permitted by law, ARCHISTAR’s maximum aggregate liability to the Subscriber is the lesser of:

(a) ten thousand dollars (A$10,000); or
(b) the amount of fees actually paid by the Subscriber to ARCHISTAR under this Agreement in the previous two year period prior to any Claim being made.

16.2 Consequential loss

To the maximum extent permitted by law, ARCHISTAR is not liable under or in connection with this Agreement to the Subscriber or any other person for any Consequential Loss.

16.3 No liability

ARCHISTAR has no liability to the Subscriber or any other person for:

(a) acts and omissions of, or any faults or defect in the Application caused by any third party, including any third party supplier;
(b) faults or defects in the Application which are caused by a Permitted User including any failure to comply with the Subscriber’s obligations under this Agreement;
(c) any loss or corruption of Subscriber Data uploaded to the Application;
(d) any delay, faults, failure, interruption or defects that arise in telecommunication systems or other services provided to the Subscriber by a third party; and
(e) the Subscriber’s (including its Permitted Users’) inability to access or use the Application for any reason.

17 Suspension or termination

17.1 Suspension

ARCHISTAR may, in its sole discretion and with no liability, suspend access to and use of the Application by notice to the Subscriber:

(a) for non-payment, in accordance with clause 4.6;
(b) if the Subscriber breaches this Agreement or any Permitted User does not comply with this Agreement; or
(c) if an event of Force Majeure occurs that affects ARCHISTAR’s ability to provide the Application, but only for so long as ARCHISTAR is affected by the event of Force Majeure.

17.2 Termination by either party

Either party may, by notice, immediately terminate this Agreement:

(a) if the other party is Insolvent; or
(b) if the other party commits a material breach of this Agreement and does not rectify it within seven days of being notified of the breach.

17.3 Consequences

Upon termination or expiry of the Agreement:

(a) the Subscriber must immediately cease using the Application; and
(b) no refund of Charges paid in advance for the unexpired Term will be provided unless the Subscriber has terminated under clauses 17.2 or 22, in which case a proportionate refund will be due to the Subscriber based on the Application paid for but not consumed by the Subscriber.

18 Confidentiality

18.1 Confidential Information

For the purposes of this Agreement, Confidential Information means:

the terms of this Agreement, including the pricing information;
in relation to ARCHISTAR, the Application and the Access Details; and
in relation to the Subscriber, the Subscriber Data.

18.2 Use of Confidential Information

Subject to clause 6.2, a party (Recipient) may only use the other party’s Confidential Information for the purposes of performing the Recipient’s obligations or exercising Recipient’s rights under this agreement.

18.3 Disclosure of Confidential Information

Subject to clause 6.2, each party agrees not to disclose Confidential Information of the other party that is not publicly available except:

(a) to officers, employees, legal and other advisers and auditors of the party in recipient of the Confidential Information who require it for the purposes of this Agreement;
(b) with the consent of the party who provided the information; or
(c) as required by any law or stock exchange.

19 Privacy

ARCHISTAR is bound by the Privacy Act and operates in accordance with its Privacy Policy. To the extent that the Application contains Personal Information, the Subscriber agrees to:

(a) comply with the Privacy Act and the Privacy Policy;
(b) only use Personal Information that ARCHISTAR discloses to the Subscriber for the purposes which ARCHISTAR disclosed that information;
(c) take all reasonable steps to ensure that it, and any of its Permitted Users, do not contravene the Privacy Act;
(d) notify immediately ARCHISTAR of any complaints, breaches or potential breaches of the Privacy Act and assist ARCHISTAR in dealing with same; and
(e) indemnify ARCHISTAR against all liability, costs (including legal costs on a full indemnity basis), expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) arising out of or in connection with any breach by the Subscriber of the Privacy Act.

20 Audit

20.1 Audit rights

ARCHISTAR or its nominees may, on reasonable notice, audit the Subscriber to confirm that the Subscriber’s use of the Application (including any Add-On) is in compliance with the obligations under this Agreement. The Subscriber must cooperate with ARCHISTAR’s audit and provide reasonable assistance and access to its premises, systems, information and personnel.

20.2 Continuing rights

ARCHISTAR’s rights under this clause 20 continue for two years following termination or expiry of the Agreement.

20.3 Costs

Without limiting any other of ARCHISTAR’s rights and remedies, if an audit reveals non-compliance by the Subscriber with its obligations under this Agreement, the Subscriber will be liable for the cost of the audit and any additional Charges applicable to the Subscriber’s excessive use of the Application. The Subscriber must pay such costs within 30 days of ARCHISTAR providing written notification of non-compliance.

21 Notices

21.1 Notice details

Notices under this Agreement must be delivered to the party’s physical or email address set out in the Product Schedule.

21.2 Deemed notice

Notice will be deemed given:

(a) in the case of hand-delivered mail, upon delivery;
(b) in the case of registered mail, upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving party (such receipt not to be unduly delayed or withheld);
(c) in the case of ordinary mail on the third day after the date of posting; or
(d) in the case of email transmission upon completion of successful transmission.

22 Updates to the General Terms and Conditions

ARCHISTAR may amend the terms of these General Terms and Conditions at any time upon 30 days written notice to the Subscriber. If the change has an adverse impact on the Subscriber, the Subscriber may terminate the Agreement by written notice to ARCHISTAR within the 30 day notice period and the Subscriber will receive a pro rata refund of any prepaid Charges calculated from the date of termination.

23 General

23.1 Entire agreement

This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior understandings, arrangements and agreements between the parties.

23.2 Severability

If any provisions of this Agreement or any document made in connection with this Agreement is determined by any court to be wholly or partly unenforceable, that unenforceability shall not affect the rest of the Agreement.

23.3 Discretion in exercising rights

A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly states otherwise.

23.4 Partial exercise of rights

If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.

24 Governing law

This Agreement is governed by the law in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of that place.

25 Definitions

In this Agreement, unless the context otherwise requires:

Access Details means any user names, passwords or other authentication credentials for use by a Permitted User for the purpose of accessing the Application.
Additional Charges means any additional charges as set out in the Product Schedule.
Add-On means the HD Add-On, the Market Activity Add-On, the Market Activity (Plus) Add-On or the Parametric Design Add-On or any other add-on to the Application, as set out in the Product Schedule.
Application means the computer software application known as Archistar, including any Add-Ons, as set out in the Product Schedule.
Charges means the fees set out in a Product Schedule (as amended or varied from time to time in accordance with clause 3.3), including any Additional Charges.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, action, suit, motion or demand of any nature howsoever arising and whether at law, in equity, under statute or otherwise.
Consequential Loss means any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss or damage to or corruption of data, loss of goodwill, loss of reputation or for any special or indirect loss, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.
Corporations Act means Corporations Act 2001 (Cth).
Force Majeure means any circumstances beyond a party’s control including strikes or industrial disputes, acts of God, acts of government, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, fire, explosion, floods, cyclone, tsunami or other extreme weather events, aircraft unserviceability or unavailability, war, terrorism or civil disturbance, or impossibility of obtaining material and/or data.
General Terms and Conditions means these terms and conditions, as revised and updated from time to time in accordance with clause 22.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST has the meaning it has in the GST Act.
HD Add-On means additional functionality providing high definition aerial maps and imagery of urban and regional metropolitan areas in Australia
ARCHISTAR Disclaimers means any copyright or other proprietary notice, legal disclaimer, or other disclaimer provided by ARCHISTAR to the Subscriber from time to time, including on accessing the Application or any Add-On.
ARCHISTAR Environment means any hardware, software, information, networks, systems or other technology solutions owned or controlled by ARCHISTAR.
ARCHISTAR Materials means the Application, the ARCHISTAR Environment, databases, platforms and models, including any other material made available or supplied by ARCHISTAR to the Subscriber, or otherwise accessed by the Subscriber in the use of the Application.
Initial Term means the initial period set out in a Product Schedule, commencing on the Subscription Start Date.
A person is Insolvent if:
- it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
- it has had a controller appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
- it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement);
- an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
- it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand;
- it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject);
- it is otherwise unable to pay its debts when they fall due; or
- something having a substantially similar effect to any or all of (a) to (g) happens in connection with that person under the law of any jurisdiction.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Location means a location included in the Product Schedule.
Market Activity Add-On means additional functionality providing recent property data and analytics, including property address, recent sale information and property attributes
Market Activity (Contact Details) Add-On means additional functionality providing the Market Activity Add-On plus contact details in relation to properties.
Maximum Number means the maximum number of Permitted Users of the Application, as set out in the Product Schedule.
Parametric Design Add-On means additional functionality providing algorithm-based modelling within development site-based parameters
Permitted Purpose means the Subscriber’s internal business needs.
Permitted User means a member of the Subscriber’s personnel who is a natural person authorised by the Subscriber to access and use the Application.
Personal Information means ‘personal information’ as that term is defined in the Privacy Act, and which a party holds, creates or receives under or in connection with this Agreement.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Policy means ARCHISTAR’s privacy policy as updated from time to time and located at https://property.archistar.ai/privacy?redirect=consHome.
Product Schedule means the product schedule signed by the parties pursuant to this Agreement.
Renewal Period means one year.
Services means any services described in the Product Schedule, which may include implementation, support, training and development services.
Subscriber Access Facilities means any software, applications, websites or technology systems (including any infrastructure needed to support them) owned or controlled by the Subscriber and used by Permitted Users to access or use the Application.
Subscriber Data means any data, information, photographs or other materials which the Subscriber uploads to the Application.
Subscription Start Date means the start date set out in the Product Schedule.
Term means the Initial Term (and any Renewal Period).
Website means ARCHISTAR’s website at https://property.archistar.ai/.

26 Interpretation

The meaning of general words is not limited by specific examples introduced by “including”, “for example”, “such as” or similar expressions. Headings are not to be considered in the interpretation of this Agreement.

API – ZONING DATABASE TERMS AND CONDITIONS

This document sets out the terms on which Archistar Pty Ltd (ABN 62 143 137 115) (“ARCHISTAR”) provides access to the Zoning Database to the Subscriber identified in the Product Schedule and the terms on which the Subscriber may use and access the Zoning Database.

These Zoning Database Terms and Conditions and the signed Product Schedule constitute the legal agreement between ARCHISTAR and the Subscriber (Agreement). Definitions are in clause 24.

1. Zoning Database

1.1Access and use

ARCHISTAR will provide access to and use of the Zoning Database to the Subscriber through:

(a)the ARCHISTAR API; or(b)a Flat-file,as set out in the Product Schedule.

1.2Licence

Subject to the payment of the Charges, ARCHISTAR grants to the Subscriber a limited, non-exclusive, non-transferable and non-sub-licensable right to access and use the Zoning Database in respect of the Locations for the Permitted Purpose during the Term on the terms set out in this Agreement.

2. API

2.1Access

ARCHISTAR will provide the Subscriber with access to the ARCHISTAR API on and from the Subscription Start Date.

2.2API Specifications

ARCHISTAR will use reasonable endeavours to ensure the ARCHISTAR API meets the ARCHISTAR API Specifications.

2.3Availability

(a)The Subscriber acknowledges and agrees that availability of the ARCHISTAR API is not guaranteed and ARCHISTAR will not be liable under this Agreement for any unavailability of the ARCHISTAR API, or any interruption or restriction to the Subscriber’s access to the ARCHISTAR API.(b)Without limiting clause 2.3(a), the Subscriber acknowledges and agrees that access to the ARCHISTAR API may be:(i)interrupted, impacted or restricted due failures of the public internet, interruption of power and other circumstances beyond ARCHISTAR’s control; or(ii)made unavailable due to scheduled or unscheduled maintenance.(c)ARCHISTAR will use reasonable endeavours to provide the Subscriber at least 3 days’ notice in writing prior to the ARCHISTAR API being made unavailable due to scheduled maintenance, repairs, or other similar activities.

2.4Updates

ARCHISTAR may, from time to time, modify or update the ARCHISTAR API provided ARCHISTAR gives the Subscriber written notice of such updates. The Subscriber must comply with all instructions provided by ARCHISTAR in relation to the implementation of any updates to the ARCHISTAR API.

2.5Use of the ARCHISTAR API

To successfully use the ARCHISTAR API, the Subscriber must:

(a)procure and operate the Subscriber Access Facilities; and(b)procure all network and internet connections and associated network and internet charges for connection to and use of the ARCHISTAR API.as set out in the Product Schedule.

2.6Fair Use

The volume of ARCHISTAR API access calls submitted by the Subscriber must be fair, reasonable and not excessive as determined by ARCHISTAR acting reasonably (Fair Use). Where the volume of ARCHISTAR API access calls exceeds Fair Use, ARCHISTAR may restrict access to and use of the ARCHISTAR API to a level consistent with Fair Use.

3. Flat-file

3.1Flat-file

On the Subscription Start Date, ARCHISTAR will provide the Subscriber with the Flat-file.

3.2Updated Flat-file

In each month during the Term, ARCHISTAR will provide the Subscriber with an updated version of the Flat-file.

3.3Use of the Flat-file

To successfully access and use the Flat-file, the Subscriber must:

(a)provide ARCHISTAR with all information required to enable ARCHISTAR to provide the Subscriber with the Flat-file;(b)procure and operate the Subscriber Access Facilities;(c)procure all network and internet connections and associated network and internet charges to enable receipt of the Flat-file; and(d)use the most recent version of the Flat-file.

4. Term

4.1Initial Term

The Agreement will commence on the Subscription Start Date and will continue for the Initial Term.

4.2Renewal

Following the Initial Term, subject to clause 4.3, the Agreement will automatically renew for subsequent Renewal Periods unless either party provides at least 90 days’ written notice prior to the expiry of the Term.

4.3Adjustment to Charges

ARCHISTAR may require an adjustment of the Charges for any Renewal Periods. ARCHISTAR will notify the Subscriber of any adjusted Charges at least 60 days prior to the end of the current Term. If the Subscriber does not agree to such an adjustment, the Agreement will not renew and will expire at the end of the current Term.

5. Charges

5.1Obligation

The Subscriber will pay ARCHISTAR the Charges in the manner set out in the Product Schedule.

5.2GST

5.3Issuing invoices

ARCHISTAR will invoice for Charges in the manner set out in the Product Schedule.

5.4Payment

The Subscriber must pay all undisputed invoices provided by ARCHISTAR within 30 days of the date of issue. All payments must be made without deduction, withholding, set-off or counterclaim.

5.5Interest

5.6Suspension

If the Charges are not paid to ARCHISTAR as per the agreed payment terms, ARCHISTAR may:

(a)suspend access to part or all of the ARCHISTAR API; or(b)not provide the Subscriber with the Flat-file or an updated version of the Flat-file, until the Charges are paid.

6. Permitted persons

The Subscriber is responsible for the acts and omissions of any person the Subscriber permits to access and use the Zoning Database, ARCHISTAR API or Flat-file as if they were those of the Subscriber.

7. Solution Design

The subscriber may use the Zoning Database to develop a Subscriber Application. The Subscriber acknowledges and agrees:

(a)the final solution design for any Subscriber Application must be submitted to ARCHISTAR for approval (not to be unreasonably withheld or delayed);(b)the Subscriber will not promote any Subscriber Application to a live production environment until the final solution design for the Subscriber Application has been approved by ARCHISTAR; and(c)if ARCHISTAR requests a change or variation to any aspect of the solution design for the Subscriber Application, then any such variations must be:(i)agreed by the parties in writing;(ii)documented in a revised solution design; and(iii)resubmitted to ARCHISTAR for approval in accordance with clause 7(a).

8. Subscriber obligations

8.1Notification of issues

The Subscriber must notify ARCHISTAR as soon practicable if the Subscriber becomes aware of any issue in relation to the completeness or accuracy of the Zoning Database, or the operation of the ARCHISTAR API.

8.2Subscriber obligations

The Subscriber warrants and agrees that the Subscriber:

(a)will access and use the Zoning Database and ARCHISTAR API or Flat-file in accordance with all applicable laws;(b)will access and use the Zoning Database and ARCHISTAR API or Flat-file in accordance with the terms of this Agreement;(c)will use the most recent version of the Zoning Database;(d)will establish, maintain and enforce security measures to ensure that the Subscriber Access Facilities do not contain any viruses, worms, defects, Trojan horses, or any other malware that may be transmitted to ARCHISTAR, Zoning Database or ARCHISTAR API;(e)will establish, maintain and enforce security measures to ensure no third party is able to data mine, scrape, crawl, aggregate, copy, extract or attempt to harvest the Zoning Database for any purpose;(f)will not remove any trade mark, branding, disclaimer or legal notice incorporated into the Zoning Database;(g)will not distribute, resell or sub-license the entire Zoning Database or Flat-file to any third party;(h)will only create derivative works using the Zoning Database as expressly permitted to carry out the Permitted Purpose;(i)will not use the Zoning Database and ARCHISTAR API or Flat-file to support, or for display on, any system which is accessible by members of the public unless expressly permitted to carry out the Permitted Purpose;(j)will establish, maintain and enforce security measures to ensure that the Subscriber Access Facilities do not contain any viruses, worms, defects, Trojan horses, or any other malware that may be transmitted to ARCHISTAR, Zoning Database or ARCHISTAR API;(k)will not use the Zoning Database and ARCHISTAR API or Flat-file on behalf of or for the benefit of any third party;(l)will not use or include information from the Zoning Database in any customer-facing Subscriber Application unless expressly permitted to carry out the Permitted Purpose, and will include any disclaimers notified by ARCHISTAR to the Subscriber in any customer-facing Subscriber Application that uses or includes all or part of the Zoning Database;(m)will not allow any unauthorised person to access or use the Zoning Database and ARCHISTAR API or Flat-file;(n)will not data mine, aggregate, extract, attempt to harvest or copy the entire Zoning Database unless expressly permitted to carry out the Permitted Purpose;(o)will not interfere with or violate any security measures implemented in relation to the Zoning Database and ARCHISTAR API or Flat-file;(p)will not circumvent (or attempt to circumvent) any technical limitations designed to protect the integrity of the Zoning Database and ARCHISTAR API or Flat-file; and(q)will not use the Zoning Database and ARCHISTAR API or Flat-file for any purpose not expressly contemplated or authorised by this Agreement or otherwise agreed by the parties in writing.

8.3Subscriber obligations in relation to the ARCHISTAR API

The Subscriber warrants and agrees that the Subscriber will not:

(a)reverse compile, reverse engineer, modify, obscure, circumvent, or disable any element of the ARCHISTAR API;(b)distribute the ARCHISTAR API or provide any information about the ARCHISTAR API to third parties; or(c)disrupt, interfere with, or adversely impact the access or use of the ARCHISTAR API by ARCHISTAR or others.

9. Rights reserved

ARCHISTAR reserves the right at any time during the Term to:

(a)modify the method of supply and delivery of, or access to, the Zoning Database;(b)upgrade, change, delete, modify, amend, correct, reconfigure, refine or discontinue any features and functionality of the Zoning Database and ARCHISTAR API or Flat-file for any reason;(c)require the Subscriber to use the most recent version of the Zoning Database and ARCHISTAR API or Flat-file;(d)suspend access to or delivery of the Zoning for maintenance, system updates, upgrades or changes to the Zoning Database; or(e)suspend or deactivate the Subscriber’s access to the Zoning Database due to systems or security concerns.

10. Third Party Agreements

10.1Acknowledgement

The Subscriber acknowledges and agrees that ARCHISTAR’s ability to provide the Zoning Database is subject to being able to source some or all of the information in the Zoning Database from third parties. The Subscriber acknowledges and agrees:

(a)the Subscriber will comply with all requirements and restrictions third parties may place on the Subscriber directly or indirectly through ARCHISTAR;(b)ARCHISTAR does not verify the accuracy or completeness of any information, product or functionality provided by a third party;(c)a relevant third party arrangement may expire or terminate during the Term; and(d)third parties may cease to provide, update or make available the relevant services, products or information ARCHISTAR uses to create the Zoning Database for any reason whatsoever or may otherwise direct ARCHISTAR to alter the way in which the Zoning Database can be provided.

10.2ARCHISTAR’s obligations

Where clauses 10.1(a), 10.1(d) or 10.1(d) apply, ARCHISTAR:

(a)will not be required, nor will have any obligation, to provide all or part of the Zoning Database to the Subscriber (including information or material which may have previously been accessed by the Subscriber);(b)will not be required, nor have any obligation, to update or ensure the accuracy of the Zoning Database; and(c)may (or may be required to) amend or delete any information contained in the Zoning Database that is sourced from a third party,and where this occurs:(d)ARCHISTAR will endeavour to advise the Subscriber in advance of any such action, where possible; and(e)otherwise, will have no liability whatsoever for any failure to provide the affected portion of the Zoning Database to the Subscriber.

11. Intellectual Property Rights

11.1No transfer or assignment

The parties acknowledge and agree that:

(a)no Intellectual Property Rights are transferred or assigned by the Subscriber to ARCHISTAR or by ARCHISTAR to the Subscriber pursuant to this Agreement; and(b)no trade mark licence is granted by ARCHISTAR to the Subscriber pursuant to this Agreement.

11.2ARCHISTAR’s intellectual property

ARCHISTAR is and remains the sole and exclusive owner of all right, title and interest (including all Intellectual Property Rights) subsisting in and to the Zoning Database, the ARCHISTAR API and each Flat-file provided to the Subscriber under this Agreement.

12. No warranty

The Subscriber acknowledges and agrees that:

(a)except as required by law or as provided in this Agreement, ARCHISTAR does not make any warranties of any kind in respect of the Zoning Database, the ARCHISTAR API or the Flat-file;(b)the Zoning Database and ARCHISTAR API or Flat-file is made available subject to the disclaimers, limitations and descriptions set out in the ARCHISTAR Disclaimers, and that any access to or use of the Zoning Database and ARCHISTAR API or Flat-file by the Subscriber is subject to the disclaimers, limitations and descriptions set out in the ARCHISTAR Disclaimers;(c)the information contained in the Zoning Database and ARCHISTAR API or Flat-file is provided ‘as is’ and the Zoning Database:(i)contains information derived from a variety of internal and external sources and may be based on assumptions;(ii)may contain information that is not current, accurate or complete;(iii)may not contain information in relation to all government zoning laws in the Locations; and(iv)is intended only as a guide to further investigation by the Subscriber; and(d)the Subscriber is responsible for ensuring that the Zoning Database satisfies its needs.

13. Disclaimer

To the fullest extent permitted by law, all warranties are hereby excluded, and ARCHISTAR and its third party suppliers hereby expressly disclaim all warranties that:

(a)the Zoning Database will meet the Subscriber’s requirements, is fit or suitable for the Subscriber’s purpose or intended use or is of merchantable quality;(b)the ARCHISTAR API or Flat-file, will be compatible with, or suitable for use with the Subscriber Access Facilities;(c)the Zoning Database will be error-free, correct, accurate, complete, reliable, secure, current, up-to-date or otherwise;(d)the ARCHISTAR API will function in an uninterrupted manner; and(e)the Zoning Database will not be affected by information entry errors, including in relation to information supplied by ARCHISTAR’s third party suppliers.

14. Remedies

(a)the resupply of the Zoning Database; or(b)the payment of the cost of resupplying the Zoning Database.

15. Indemnity

(a)any breach by the Subscriber of this Agreement; or(b)the use of the Zoning Database or any information contained therein or supplied under this Agreement.

16. Limitation of liability

16.1Limitation of liability

To the maximum extent permitted by law, ARCHISTAR’s maximum aggregate liability to the Subscriber is the lesser of:

(a)ten thousand dollars (A$10,000); or(b)the amount of fees actually paid by the Subscriber to ARCHISTAR under this Agreement in the previous two year period prior to any Claim being made.

16.2Consequential loss

To the maximum extent permitted by law, ARCHISTAR is not liable under or in connection with this Agreement to the Subscriber or any other person for any Consequential Loss.

16.3No liability

ARCHISTAR has no liability to the Subscriber or any other person for:

(a)acts and omissions of, or any faults or defect in the Zoning Database and ARCHISTAR API or Flat-file caused by any third party, including any third party supplier;(b)faults or defects in the Zoning Database and ARCHISTAR API or Flat-file which are caused by the Subscriber including any failure to comply with the Subscriber’s obligations under this Agreement;(c)any delay, faults, failure, interruption or defects that arise in telecommunication systems or other services provided to the Subscriber by a third party; and(d)the Subscriber’s inability to access or use the Zoning Database and ARCHISTAR API or Flat-file for any reason.

17. Suspension or termination

17.1Suspension

ARCHISTAR may, in its sole discretion and with no liability:

(a)suspend access to and use of part or all of the ARCHISTAR API; or(b)not provide the Subscriber with the Flat-file or an updated version of the Flat-file,by notice to the Subscriber:(c)for non-payment, in accordance with clause 5.6;(d)if the Subscriber breaches this Agreement does not comply with this Agreement; or(e)if an event of Force Majeure occurs that affects ARCHISTAR’s ability to provide the Zoning Database and ARCHISTAR API or Flat-file, but only for so long as ARCHISTAR is affected by the event of Force Majeure.

17.2Termination by either party

Either party may, by notice, immediately terminate this Agreement:

(a)if the other party is Insolvent; or(b)if the other party commits a material breach of this Agreement and does not rectify it within seven days of being notified of the breach.

17.3Consequences

Upon termination or expiry of the Agreement:

(a)the licence provided in clause 1.2 automatically terminates;(b)the Subscriber must immediately cease using the Zoning Database, ARCHISTAR API or any Flat-file provided to the Subscriber;(c)the Subscriber must immediately and permanently destroy or, if requested by ARCHISTAR, return to ARCHISTAR all copies (including all electronic copies) of the Zoning Database in the Subscriber’s possession or control (or the possession or control of persons who have received all or part of the Zoning Database from the Subscriber);(d)the Subscriber must immediately and permanently destroy any part of a Subscriber Application that contains any part of the Zoning Database;(e)if requested by ARCHISTAR, the Subscriber must certify in writing to ARCHISTAR that the Subscriber has complied with clauses 17.3(b), 17.3(c) and 17.3(d); and(f)no refund of Charges paid in advance for the unexpired Term will be provided unless the Subscriber has terminated under clauses 17.2 or 21, in which case a proportionate refund will be due to the Subscriber calculated from the date of termination.

17.4Failure to Return or Destroy

If the Subscriber does comply with clauses 17.3(b), 17.3(c) and 17.3(d), the Subscriber must pay to ARCHISTAR the Charges ordinarily charged by ARCHISTAR under this Agreement until such time as the obligations under clause 17.3(b), 17.3(c) and 17.3(d) are satisfied.

18. Confidentiality

18.1Confidential Information

For the purposes of this Agreement, Confidential Information means:

(a)the terms of this Agreement, including the pricing information; and(b)in relation to ARCHISTAR, the Zoning Database and ARCHISTAR API or Flat-file.

18.2Use of Confidential Information

A party (Recipient) may only use the other party’s Confidential Information for the purposes of performing the Recipient’s obligations or exercising Recipient’s rights under this Agreement.

18.3Disclosure of Confidential Information

Each party agrees not to disclose Confidential Information of the other party that is not publicly available except:

(a)to officers, employees, legal and other advisers and auditors of the party in recipient of the Confidential Information who require it for the purposes of this Agreement;(b)with the consent of the party who provided the information; or(c)as required by any law or stock exchange

19. Privacy

ARCHISTAR is bound by the Privacy Act and operates in accordance with its Privacy Policy. To the extent that the Zoning Database and ARCHISTAR API or Flat-file contains Personal Information, the Subscriber agrees to:

(a)comply with the Privacy Act and the Privacy Policy;(b)only use Personal Information that ARCHISTAR discloses to the Subscriber for the purposes which ARCHISTAR disclosed that information;(c)take all reasonable steps to ensure that it does not contravene the Privacy Act;(d)notify immediately ARCHISTAR of any complaints, breaches or potential breaches of the Privacy Act and assist ARCHISTAR in dealing with same; and(e)indemnify ARCHISTAR against all liability, costs (including legal costs on a full indemnity basis), expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) arising out of or in connection with any breach by the Subscriber of the Privacy Act.

20. Notices

20.1Notice details

Notices under this Agreement must be delivered to the party’s physical or email address set out in the Product Schedule.

20.2Deemed notice

Notice will be deemed given:

(a)in the case of hand-delivered mail, upon delivery;(b)in the case of registered mail, upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving party (such receipt not to be unduly delayed or withheld);(c)in the case of ordinary mail on the third day after the date of posting; or(d)in the case of email transmission upon completion of successful transmission.

21. Updates to the Zoning Database Terms and Conditions

ARCHISTAR may amend the terms of these Zoning Database Terms and Conditions at any time upon 30 days written notice to the Subscriber. If the change has an adverse impact on the Subscriber, the Subscriber may terminate the Agreement by written notice to ARCHISTAR within the 30 day notice period and the Subscriber will receive a pro rata refund of any prepaid Charges calculated from the date of termination.

22. General

22.1Entire agreement

This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior understandings, arrangements and agreements between the parties.

22.2Severability

22.3Discretion in exercising rights

A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly states otherwise.

22.4Partial exercise of rights

If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.

23. Governing law

This Agreement is governed by the law in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of that place.

24. Definitions

In this Agreement, unless the context otherwise requires:

Additional Charges means any additional charges set out in the Product Schedule.
Additional Database means any additional database set out in the Product Schedule.
Charges means the fees set out in a Product Schedule (as amended or varied from time to time in accordance with clause 4.3), including any Additional Charges.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, action, suit, motion or demand of any nature howsoever arising and whether at law, in equity, under statute or otherwise.
Consequential Loss means any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss or damage to or corruption of data, loss of goodwill, loss of reputation or for any special or indirect loss, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.
Corporations Act means Corporations Act 2001 (Cth).
Flat-file means each flat-file of the Zoning Database provided by ARCHISTAR to the Subscriber under this Agreement.
Force Majeure means any circumstances beyond a party’s control including strikes or industrial disputes, acts of God, acts of government, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, fire, explosion, floods, cyclone, tsunami or other extreme weather events, aircraft unserviceability or unavailability, war, terrorism or civil disturbance, or impossibility of obtaining material or information.
Zoning Database Terms and Conditions means these terms and conditions, as revised and updated from time to time in accordance with clause 21.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST has the meaning it has in the GST Act.
ARCHISTAR API means the API provided by ARCHISTAR to the Subscriber under this Agreement.
ARCHISTAR API Specifications means the specifications for the ARCHISTAR API provided by ARCHISTAR to the Subscriber from time to time.
ARCHISTAR Disclaimers means any copyright or other proprietary notice, legal disclaimer, or other disclaimer provided by ARCHISTAR to the Subscriber from time to time, including on accessing the Zoning Database and ARCHISTAR API or Flat-file.
Initial Term means the initial period set out in a Product Schedule, commencing on the Subscription Start Date.
A person is Insolventif:(a)it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);(b)it has had a controller appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;(c)it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement);(d)an order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;(e)it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand;(f)it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject);(g)it is otherwise unable to pay its debts when they fall due; or(h)something having a substantially similar effect to any or all of (a) to (g) happens in connection with that person under the law of any jurisdiction.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Location means a location included in the Product Schedule.
Permitted Purpose means the purpose set out in the Product Schedule.
Personal Information means ‘personal information’ as that term is defined in the Privacy Act, and which a party holds, creates or receives under or in connection with this Agreement.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Policy means ARCHISTAR’s privacy policy as updated from time to time and located at https://property.archistar.ai/privacy.
Product Schedule means the product schedule signed by the parties pursuant to this Agreement.
Renewal Period means the period of time set out in the Product Schedule.
Subscriber Access Facilities means any software, materials, applications, websites or technology systems (including any infrastructure needed to support them) owned or controlled by the Subscriber to access or use the ARCHISTAR API or Flat-file.
Subscriber Application means any software, applications, websites or technology systems developed by the Subscriber that uses all or part of the Zoning Database.
Subscription Start Date means the start date set out in the Product Schedule.
Term means the Initial Term (and any Renewal Periods).
Zoning Database means the database of government zoning laws created by ARCHISTAR, including any Additional Database set out in the Product Schedule.