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The following terms and conditions constitute a legal and enforceable contract between Hometrack Australia Pty Limited, as the owner of the Hometrack Data, and you as the End User in relation to the rights granted to you in respect of and your use of the Hometrack Data.
Meanings shall apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires:
Agreement means these Terms and Conditions.
Claim includes a claim, action, damage, loss, cost, expense or liability incurred by or to or made or recovered by or against any person, however arising, whether present, unascertained, immediate, future or contingent.
Confidential Material means the Hometrack Data (whether in oral, written or electronic form) which is of a confidential nature and which, due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential.
Government Agency and Government Agencies means any government, governmental, semi-governmental, administrative, fiscal or judicial body, department commission, authority, tribunal, agency or entity.
Government Agency Data means, with respect to a Government Agency, property sales information or related data provided to Hometrack or its related entities by the Government Agency under a Government Agency Data Licence Agreement.
Hometrack means Hometrack Australia Pty Limited ABN 43 127 386 298 of Level 8, 92 Pitt Street, Sydney NSW 2000.
Hometrack Data means the Hometrack property data comprising the property address detail data, valuation and transaction data and market data, including but not limited to the following:
(a) Address – Basic address information;
(b) Attributes – Property attributes;
(c) Structures – Spatial structures associated with the address;
(d) Listings – Sale and Rental listing information;
(e) Market Data –Aggregated (property market) statistics;
(f) Map Images – Images of maps showing comparables and / or market data;
(g) Chart Images – Images of charts showing market data;
(h) Transactions – Property sales data; and
(i) Valuation – Hometrack Realtime AVM information
Intellectual Property Rights means all intellectual property rights under statute or at common law or equity, including but not limited to:
(a) series, methodology, patents, copyrights, registered designs, trade marks, images, records, know-how, source code, passwords, access codes, documentation and confidential information and includes all developments, improvements, enhancements, adaptations and new discoveries, inventions, applications and further know-how (whether patentable or otherwise) based on or relating to that intellectual property; and
(b) any application or right to apply for any rights referred to in paragraph (a).
Liability includes all liabilities and obligations of whatever nature (including but not limited to any loss, damage, injury, demand, costs or expense), whether present, prospective or contingent.
Permitted Purpose means the purpose described in clause 2.1.
Related body corporate has the same meaning given to it in the Corporations Act 2001 (Cth).
2. HOMETRACK DATA
2.1 Grant of Rights
Hometrack grants to the End User a non-exclusive and non-transferable right to use the Hometrack Data solely for the End User’s internal business or private purposes.
2.2 Delivery of Hometrack Data
Hometrack will furnish the Hometrack Data to the End User for the Permitted Purpose in the form, manner and at the times as agreed between the End User and Hometrack.
The End User must not use the Hometrack Data for any purpose other than the Permitted Purpose and, for the avoidance of doubt, must not:
(a) sublicense any part or all its of its interest in the Hometrack Data or its rights under this Agreement;
(b) reproduce, disclose, exploit, distribute, re-utilise, sell, licence or otherwise dispose of all or any part of the Hometrack Data to any third party;
(c) develop, modify or reproduce the Hometrack Data for sale to third parties unless agreed between the parties in writing;
(d) use the Hometrack Data for any fraudulent or unlawful purpose; and
(e) use the Government Agency Data for any direct marketing purposes.
The End User will not, at any time during the term of this Agreement or after its termination or expiration, disclose Confidential Material to any person or corporation without obtaining the prior written consent of Hometrack. The End User will take such steps as may be reasonably necessary to ensure that any of its servants or agents does not disclose Confidential Material. The obligations in this clause do not apply to any information or material which is not confidential or ceases to be confidential other than by the default of the End User.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Ownership of Intellectual Property Rights
(a) All Intellectual Property Rights subsisting or used in or in connection with the Hometrack Data are either the property of Hometrack or where Hometrack is not the owner of such Intellectual Property Rights, Hometrack holds authorisation from the owner of such Intellectual Property Rights to use the Hometrack Data and is empowered to enter into this Agreement.
(b) The End User must not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership by Hometrack of its Intellectual Property Rights in the Hometrack Data or Hometrack’s authorisation from the owner of such Intellectual Property Rights to use the Hometrack Data.
(c) The End User acknowledges that Hometrack’s Intellectual Property Rights in the Hometrack Data are retained by Hometrack and that it has no right, title or interest in or to the Hometrack Data or any other information or data used or supplied by Hometrack to the End User under or in connection with this Agreement.
(d) The End User must take such steps as may be reasonably required by Hometrack to protect or confirm Hometrack’s Intellectual Property Rights in the Hometrack Data.
The End User must not in any way alter, modify or adapt the Hometrack Data.
5. OBLIGATIONS OF END USER
The End User must:
(a) accept the Hometrack Data in the form in which it is delivered by Hometrack;
(b) protect and not cause or do any act or thing which may prejudice, damage or harm any of the Hometrack Data;
(c) ensure that it uses the Hometrack Data in accordance with any applicable laws and regulations;
(d) notify Hometrack immediately if it becomes aware of any unauthorised use of the Hometrack Data; and
(e) follow all reasonable instructions that Hometrack gives from time to time with regards to the use of the Hometrack Data.
The End User acknowledges and agrees that:
(a) Hometrack’s ability to provide the Hometrack Data is subject to its agreements with third party suppliers including, without limiting, Government Agencies;
(b) Hometrack has entered into various licence agreements with Government Agencies which may require that Government Agency to approve this Agreement on certain conditions. Any conditions on approval shall be deemed incorporated into this Agreement and binding on the End User;
(c) Hometrack’s agreements with third party suppliers and Government Agencies may terminate or expire from time to time;
(d) under Hometrack’s agreements with third party suppliers and Government Agencies, those suppliers may not supply certain data and, in such circumstances, Hometrack may not be able (and shall be under no obligation) to provide some or all of the Hometrack Data;
(e) Hometrack makes no representation or warranty whatsoever in relation to the data supplied by the third party suppliers and Government Agencies;
(f) third party suppliers and Government Agencies have retained certain Intellectual Property Rights in relation to the Hometrack Data; and
(g) the Important Notice and Disclaimer set out in the Schedule to this Agreement shall apply to the provision of the Hometrack Data.
6.1 Notice of Infringement
If the End User becomes aware of:
(a) any Claim or Liability against or with respect to the Hometrack Data or which may be brought or claimed against Hometrack or in respect of which the End User or Hometrack may become liable arising out of the use of the Hometrack Data by the End User, its servants or agents;
(b) any infringement or threatened infringement of the Intellectual Property Rights in the Hometrack Data;
(c) any allegation or claim that the End User’s use of the Hometrack Data may infringe the rights of a third party;
(d) any common law passing-off which may cause deception or confusion to the public by a third party; or
(e) any breach of its confidentiality obligations referred to in clause 3,
the End User must immediately give notice of same in writing to Hometrack (Infringement Notice).
6.2 Infringement Actions
(a) Upon receipt of an Infringement Notice Hometrack may, at its sole discretion, take all steps reasonably required to protect the Hometrack Data from infringement.
(b) In the event that Hometrack elects to initiate proceedings for prosecuting or defend any Claims with respect to the Hometrack Data, all expenses incurred by Hometrack in conducting any such proceedings or defending any Claims will be borne by the parties equally and all amounts received either from settlements or adjudications (including in respect of costs) will be dealt with in the manner described in clause 6.2(f).
(c) If required by Hometrack, the End User shall, at the expense of Hometrack, lend its name and do all things within its power to promote the success of any proceedings in relation thereto.
(d) If the parties agree, they may jointly institute proceedings against or defend proceedings against any person responsible for an infringement, and must share equally all costs included in such proceedings and all amounts received either from settlements or adjudications (including in respect of costs) will be dealt with in the manner described in clause 6.2(f).
(e) If, within a reasonable time, Hometrack fails to take steps which the End User considers to be reasonable to protect the Intellectual Property Rights in the Hometrack Data from infringement, the End User may commence legal proceedings against a third party in respect of the infringement at the expense of the End User. If required by the End User, Hometrack shall, at the expense of the End User, lend its name and do all things within its power to promote the success of any proceedings in relation thereto. In the event that the End User commences legal proceedings, the End User shall indemnify and keep indemnified Hometrack against all costs incurred in such proceedings and any amounts payable pursuant to any settlement or order of the court. All amounts received (including in respect of costs) from settlements or adjudications will be dealt with in the manner described in clause 6.2(f).
(f) Upon receipt by the parties of any amounts received either from settlements or adjudications (including in respect of costs) of any proceedings commenced in accordance with this clause 6.2 or commenced against one of the parties by a third party in relation to a Claim (the Proceeds), the parties will distribute the Proceeds between themselves as follows:
(i) firstly, the parties will distribute the Proceeds in repayment to each of the End User and Hometrack of the costs incurred by each party on a proportionate basis; and
(ii) secondly, if any amount of the Proceeds remains after payment of costs, the parties will distribute the remaining amount to each of the End User and Hometrack in proportion to the loss suffered by the End User and Hometrack in respect of the infringing conduct which was the subject of the Proceeds.
7.1 Limitation of Liability
(a) The End User acknowledges that the Hometrack Data is provided without the benefit of inspection of any properties. The End User assumes sole responsibility for evaluation of the accuracy, completeness, usefulness and suitability of all information and data provided within the Hometrack Data.
(b) In compiling the Hometrack Data, Hometrack relies upon information supplied by a number of external sources. The Hometrack Data is provided on an “as is” basis. It is the End User’s sole responsibility to assess the suitability and fitness of the Hometrack Data for its own intended use and purpose, Hometrack does not warrant its accuracy or completeness. To the fullest extent permissible by applicable law, other than expressly set forth in this Agreement, all warranties, representations, endorsements, conditions, guarantees or statements whatsoever with regard to the Hometrack Data whether express or implied, in law or in fact, oral or in writing, are expressly excluded from this Agreement.
7.2 End User’s Indemnities
(a) The End User holds harmless, releases and indemnifies Hometrack and its officers, employees, agents and representatives in relation to any Claim or Liability (including legal fees or expenses) of whatever kind or whatever nature suffered or incurred by the End User or any third party, including but not limited to direct or indirect, special or consequential damages or loss (including loss of goodwill, profits, anticipated savings, anticipated revenue, business interruption and loss of business) in connection with or arising out of the provision of the Hometrack Data by Hometrack or the use of the Hometrack Data by the End User, its servants or agents except to the extent that any Claim or Liability arises out of the negligent, fraudulent or wilful act or omission of Hometrack or a defect in the Hometrack Data or the Hometrack Data infringing the proprietary rights of a third party.
(b) The End User indemnifies and shall keep indemnified Hometrack and its officers, employees, agents or representatives against any Claim or Liability (including legal fees or expenses) of whatever kind or whatever nature suffered or incurred by Hometrack or any third party including but not limited to direct or indirect, special or consequential damages or loss (including loss of goodwill, profits, anticipated savings, anticipated revenue, business interruption and loss of business) that is suffered or incurred arising out of this Agreement, including any breach of the End User’s obligations under clauses 3, 4 or 5.
This Agreement may be terminated by either party if the other party (defaulting party) fails to observe and perform any provision of this Agreement and fails to rectify and make good any failure within 14 days after receiving written notice requiring the failure to be rectified and made good.
8.2 Consequences of Termination
In the event of termination for any reason the End User must cease to use and deliver up to Hometrack the Hometrack Data, confidential information and all copies in the possession, custody or control of the End User.
9. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed under the law of the State of New South Wales.
Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction in the State of New South Wales.
Each party by execution of this Agreement irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.
10. GENERAL PROVISION
The End User must not assign or transfer any right or liability under this Agreement without the prior consent of Hometrack.
10.2 Third Parties
This Agreement shall confer rights only upon Hometrack and the End User.
Any failure or delay by any party to exercise any right under this Agreement shall not operate as a waiver and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party.
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
(a) Subject to clause 10.5(b):
(i) if a provision of this Agreement is void or voidable, unenforceable or illegal but would not be void, voidable, unenforceable or illegal if it were read down and it is capable of being read down, then the provision must be read down;
(ii) if, despite clause 10.5(a)(i), a provision is still void, voidable, unenforceable or illegal and the provision would not be void, voidable, unenforceable or illegal if words were severed, then those words must be severed; or
(iii) in any other case, the whole provision must be severed.
(b) If an event under clause 10.5(a) occurs, then the remainder of this Agreement continues in full force and effect.
10.6 No partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
Important Notice and Disclaimer
© Hometrack Australia Pty Limited ACN 127 386 298, (Hometrack) local, State and Commonwealth Governments. All rights reserved. No reproduction, distribution or transmission of the copyrighted materials in the Hometrack Data is permitted whether in whole or in part.
The Hometrack Data provided to the End User is current only as at the date on which Hometrack furnished that Hometrack Data to the End User. Information may become erroneous over time. The Hometrack Data is provided on the basis that while Hometrack believes that all the information in it is reliable as at the date on which Hometrack furnished that Hometrack Data to the End User, Hometrack does not warrant its accuracy, completeness or appropriateness to the End User’s personal circumstances.
The Hometrack Data provides general information only and is not intended to be personal or other advice, opinion or counsel and should not be relied upon as such. The Hometrack Data has not been prepared by taking into account your investment objectives, financial situation or personal needs. You should make your own enquiries and, if necessary, take independent financial, legal or other professional advice, addressed to your own circumstances and objectives, before making any investment decision.
FOR TRANSACTIONS AND VALUATION DATA
The following additional terms apply to End Users who request transactions and valuation data:
Data which includes data licensed from the Department of Lands NSW
Contains property sales information provided under licence by the Department of Lands NSW (LPI). Hometrack is authorised as a Property Sales Information provider by the LPI.
Sales information is combined with property attribute data for display purposes. These data are obtained from various sources other than from the LPI. The underlying sales data is not altered by Hometrack.
Data which includes data licensed from the State of Victoria
To the extent that the Hometrack Data has been developed using information owned by the State of Victoria, the State of Victoria owns the copyright in that data which constitutes the basis of the Hometrack Data and reproduction of that data in any way without the consent of the State of Victoria will constitute a breach of the Copyright Act 1968 (Cth). The State of Victoria does not warrant the accuracy or completeness of the data and any person relying upon such data does so on the basis that the State of Victoria accepts no responsibility or liability whatsoever for any errors, faults, defects or omissions in the data supplied.
Data which includes data licensed from the State of Queensland
© The State of Queensland (Department of Environment and Resource Management) 2012. Based on data provided with the permission of the Department of Environment and Resource Management (QVAS 2012). The Department of Environment and Resource Management makes no representations or warranties about accuracy, reliability, completeness or suitability of the data for any particular purpose and disclaims all responsibility and all liability (including, without limitation, in negligence) for all expenses, losses and damages (including indirect or consequential damage) and costs which might be incurred as a result of the data being inaccurate or incomplete in any way and for any reason.
Data which includes data licensed from South Australia
© 2011 Copyright in this information relating to South Australia belongs to the South Australian Government. The information is based on data supplied by the South Australia Government and is published by permission. The South Australian Government does not accept any responsibility for the accuracy or completeness of the information or suitability for any purpose of the data.
The information contained in the Hometrack Data is extracted from records of land status and cadastral boundary definition held by the State. The information is not represented to be accurate, current, complete, or suitable for any purpose, at the time of its supply by the State, and may have changed since the date of supply by the State.
The software by which the information is provided is not represented to be error free. No responsibility is accepted by the State for any reliance placed by any person upon the information, or the software by which it is provided. Persons acquiring or using the information and its associated software must exercise their independent judgement in doing so.
Copyright in the information remains with the Crown in right of the State of South Australia. The information is reproduced under licence from the Crown.
The information contained in this dataset must not be used for the purposes of compiling contact lists, whether personalised or not.
Data which includes data licensed from the Australian Capital Territory
Proprietary and Data Notice: The Territory Data is the property of the Australian Capital Territory. No part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be directed to: Director, Customer Services, ACT Planning and Land Authority, GPO Box 1908, Canberra, ACT, 2601.
Data which includes data licensed from Tasmania
The Hometrack Data incorporates data that is copyright owned by the Crown in Right of Tasmania. The data has been used in the product with the permission of the Crown in Right of Tasmania. The Crown in right of Tasmania and its employees and agents:
• give no warranty regarding the data’s accuracy, completeness, currency or suitability for any particular purpose;
• do not accept liability howsoever arising, including but not limited to, negligence for any loss resulting from the use of or reliance upon the data; and
• base data from the List © State of Tasmania - http://www.thelist.tas.gov.au
Data which includes data licensed from Western Australia
© Western Australian Land Information Authority (2011) trading as Landgate. Based on information provided by and with the permission of the Western Australian Land Information Authority (2011) trading as Landgate.
Data which includes data licensed from the Northern Territory
Based on information provided under licence by the Department of Lands and Planning, Northern Territory of Australia.
FOR MAP IMAGE DATA
The following additional terms apply to End Users who request map image data:
In compiling any map image data Hometrack may use the Google Earth software or the Google Maps service provided by Google Inc. By Hometrack using these products to produce map image data, the End User agrees to be bound by the following:
• the Google Terms of Service;
• the terms found on the Google Legal Notices page; and
• Google Maps/Earth Additional Terms of Service.
(jointly referred to as the Google Terms).
The End User holds harmless, releases and indemnifies Hometrack, its officers, employees, agents, representatives and service providers from any claim, demand or action whatsoever by Google Inc. arising from or in connection with any breach by the End User of any of the Google Terms.