19 September 2019
This document (Contract) sets out the terms and conditions upon which Lotsearch Pty Ltd (ABN: 89 600 168 018) (Lotsearch) provides Services to Customers except Customers with whom Lotsearch has negotiated special terms (in which instances the negotiated terms apply to the provision of Services by Lotsearch to Customers).
1.1. Definitions. In this Contract, the following terms apply unless the context otherwise requires:
Assessment means a contaminated land screening assessment or other assessment if included as part of a Report.
Customers means any person, firm, corporate or body which places an Order with the Lotsearch.
Fees means the fees specified in the Order or as otherwise notified by Lotsearch to you prior to supply of the Services to you.
Information Pack means a pack compiled by or on behalf of the owner or prospective buyer of the Property, designed to aid the marketing or purchase of the Property and containing information provided by or on behalf of the owner, lessee, licensee, occupier or prospective buyer of the Property as the case may be.
Intellectual Property Rights or IPR means copyright, patent, design right (registered or unregistered), trade marks (registered or unregistered), database right or other data right, moral right or know how or any other intellectual property right.
Order means the request signed by Customer for the provision of Services to Customer by Lotsearch.
Property means the site as defined by the boundary shown on the site aerial plan and maps within the Report.
Report means the report provided by Lotsearch to Customer in fulfilment of an Order including all documents and information, datasets, software or information contained in the documents and, if ordered by Customer, an Assessment.
Services means the provision of the Report and/or any other service by Lotsearch to Customer under this Contract.
Third Party Content means data, content, software or functionality which is comprised of the following:
(a) content which is provided by any other person to Lotsearch or which is freely available; and
(b) content which is derived from the data, content, software or functionality described in paragraph (a) including any Assessment, and which Lotsearch includes in a Report or is provided to a Customer as part of a Service.
Third Party Content Supplier means a person who provides Third Party Content to Lotsearch including the Crown and the licensor of the methodology used by Lotsearch to generate any Assessment.
Website means Lotsearch's website which is currently located at www.lotsearch.com.au.
1.2. Interpretation. In this Contract unless the contrary intention appears:
(a) a reference to this Contract or another instrument includes any variation or replacement of either of them;
(b) a reference to a statute, ordinance, code or other law or requirement includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(c) the singular includes the plural and vice versa;
(d) a reference to one gender includes all genders;
(e) the word person includes a firm, a body corporate, an unincorporated association or an authority;
(f) the verb include (in all its parts, tenses and variants) is not used as, nor it is to be interpreted as, a word of limitation;
(g) headings are inserted for convenience and do not affect the interpretation of this Contract;
(h) $, dollar or AUD in the Order is a reference to Australian currency; and
(i) any term defined in the Corporations Act 2001 (Cth) or A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this Contract.
2. OPERATION OF CONTRACT
2.1. Effect of Order. The Order constitutes an offer by Customer to acquire Services from Lotsearch which Lotsearch may accept by notifying Customer of its acceptance of the Order or providing the Service.
2.2. Exclusion of Other Terms. All prior representations made by either Lotsearch or any Third Party Consent Supplier or Customer, and any documentation issued by Customer including any terms included in any communications between Lotsearch (or any Third Party Consent Supplier) and Customer are excluded from this Contract and are of no effect.
2.3. Refusal of Order. Lotsearch may refuse to accept an Order. If Lotsearch refuses to accept an Order, it may but is not required, to give reasons.
2.4. Cancellation of Order. Customer may not cancel the Order once placed unless Customer contacts Lotsearch to request cancellation and Lotsearch agrees to cancel the Order. Lotsearch may charge a cancellation fee.
2.5. Changes in Order. Customer may not request changes to the Order (including any change of data or information provided by the Customer to generate the Order) once placed or following delivery of a Report by Lotsearch unless Customer contacts Lotsearch to request a change and Lotsearch agrees to change the Order or Report as applicable. Lotsearch may charge an additional Fee for an amended Order or Report and will notify Customer of the proposed Fee and obtain Customer's acceptance of the proposed additional Fee by written confirmation to Lotsearch prior to undertaking any work required to give effect to the change requested by Customer.
3. SUPPLY OF SERVICES AND LIMITATIONS
3.1. Timing of Supply. Lotsearch will endeavour to supply the Services to Customer within any time limits specified by Lotsearch on the Website or as to Customer notified by Lotsearch.
3.2. Customer Representations and Warranties. Customer represents and warrants that Customer is acquiring the Services for use in a professional or commercial capacity. Customer further represents and warrants that Customer is skilled in the use of property and environmental information.
3.3. Standard of Services. Lotsearch will use reasonable skill and care in providing the Services and compiling the Report from Third Party Content.
3.4. Customer acknowledgments. Customer acknowledges and agrees that:
(a) Lotsearch has defined the Property by reference to lot and plan information supplied in the Order rather than any address supplied in the Order and Lotsearch may omit some of the lot and plan information supplied in the Order to identify the relevant Property for the Report;
(b) the Services incorporate Third Party Content which is not within Lotsearch's control;
(c) the Third Party Content Suppliers do not constitute an exhaustive set of all repositories or sources of information available in relation to the Property and accordingly Lotsearch does not give any warranty in relation to the accuracy or completeness of the Third Party Content incorporated into the Service or of any Assessment;
(d) no Third Party Content Supplier has any liability to Customer respect of the Services, Assessment or otherwise under or in connection with this Contract;
(e) the timing of the provision of the Services by Lotsearch is subject to the availability of the Third Party Content and, accordingly, Lotsearch does not take any responsibility for or give any warranty in relation to the timeliness of the production of any Report;
(f) Reports are generated at a point in time (as specified by the date/time stamp appearing on the Report) and accordingly the Report (including any Assessment) is based on the information available at that point in time and Lotsearch is not obliged to undertake any additional reporting to take into consideration any information that may become available between the point in time specified by the date/time stamp and the date on which the Report is provided to Customer by Lotsearch;
(g) Reports must be used or reproduced in their entirety and Customer must not reproduce or make available to other persons only parts of the Report;
(h) Lotsearch does not undertake any physical inspection of the Property;
(i) Lotsearch does not warrant that all land uses or features whether past or current will be identified in the Services;
(j) the Services do not include any information relating to the actual state or condition of any Property;
(k) the Services should not be used or taken to indicate or exclude actual fitness or unfitness of a Property for any particular purpose or that a Property is not contaminated;
(l) the Services should not be relied upon for determining saleability or value or use for the Property or making any other decisions in relation to the Property; and
(m) Customer should undertake its own inspections of the Property to satisfy itself that there are no defects or failures in the Property or contamination of the Property.
3.5. Notification of Errors. Customer must notify Lotsearch in writing if it becomes aware of any inaccuracies or errors in the Services.
3.6. Subcontracting. Customer acknowledges that Lotsearch may use subcontractors as it considers appropriate to provide any Services to Customer. In such instances, Lotsearch will remain primarily responsible to Customer under this Contract.
4. CUSTOMER'S USE OF SERVICES
4.1. Purpose of Reports. Customer may include the Reports in Information Packs or otherwise use the Reports in the preparation of Information Packs. Customer may also make available the Report or copies of the entire Report or part of the Report as follows:
(a) to the owner of the Property at the date of the Report;
(b) to any actual or prospective purchasers, lessees or licensees of the Property or any part of the Property;
(c) any person who provides funding secured on the whole of the Property;
(d) any person for whom Customer acts in a professional or commercial capacity; or
(e) any person who acts for Customer in a professional or commercial capacity.
4.2. No representations. If Customer uses a Report as permitted under clause 4.1, neither Lotsearch nor any of its Third Party Content Suppliers will have any liability to any person to whom Customer has provided the Report and Customer must not represent that Lotsearch or any of its Third Party Content Suppliers accepts liability to any such person or make any other representation to any such person on behalf of Lotsearch or any Third Party Content Supplier.
4.3. Notices and Disclaimers in Reports. Customer must not remove any copyright notices, trade marks, digital rights management information, other embedded information, terms, conditions, disclaimers or limitations from the Report (including in relation to an any Assessment) or authorise any person to do so.
5. FEES AND PAYMENT
5.1. Fees. The Fee payable by Customer for each Report is specified in the Order except as provided in clause 5.2. The Fee is GST exclusive and Customer must pay the applicable GST in addition to the Fee as specified in Lotsearch’s tax invoice.
5.2. Change in Fees. Lotsearch may, prior to providing a Report to Customer, inform Customer that a Fee specified in the Order is to be changed in which case Lotsearch will not be required to provide the Report unless Customer accepts the change in the Fee by written confirmation to Lotsearch.
5.3. Invoicing. Lotsearch will issue a tax invoice to Customer for the Fee plus applicable GST at the time that it sends Customer the Report or, at its option, will issue an invoice at the end of a calendar month for all Reports provided to Customer during the month to which the invoice relates.
5.4. Payment Terms. Invoices are payable in full within 30 days of the date of the invoice. Customer must not deduct or set-off any amounts against the Fee specified in the invoice.
5.5. Interest on Late Payment. Lotsearch may charge interest on late payment at a rate equal to 6% above the cash rate quoted by the Reserve Bank of Australia. Interest accrues from the date the payment was due until the date the payment is made in full.
5.6. Suspension or Termination of Service for Non Payment. If Customer does not pay any invoice when due, in addition to charging interest, Lotsearch may refuse to provide any Order which is in progress until Customer has paid all outstanding invoices in full together with any interest notified by Lotsearch to Customer or terminate this Contract.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Retention of IPR. Customer acknowledges and agrees that the provision of any Service to Customer by Lotsearch (either directly or through any Third Party Content Suppliers) does not transfer the ownership of any IPR in any Report or any other aspect of or item provided as part of a Service to Customer. Lotsearch, Third Party Content Suppliers and other persons (as applicable) retain ownership of all IPR in any Report or any other aspect of or item provided as part of a Service to Customer.
6.2. Licence. Lotsearch licenses Customer to use the IPR in the Reports as required for the purposes of using the Services as permitted under clause 4.1.
6.3. Termination of Customer's rights to use Reports. If Customer does not comply with the restrictions in this clause 6 or the restrictions on use of the Reports under clause 4.1, Customer's rights to use the Services (including the Report) will terminate.
6.4. Lotsearch’s use of Customer’s Name and Trade Marks. With effect from completion of the Services, Customer authorises Lotsearch to include Customer’s name and trade marks on the Website for the sole purpose of Lotsearch promoting its products and services unless Customer gives Lotsearch written notice that it does not permit its name or trade marks to be included on the website.
7. WARRANTIES AND LIMITATIONS
7.1. Exclusion of Implied Terms and Warranties. To the extent permitted by law and subject to clause 7.2, all implied terms, representations, warranties and guarantees whether statutory or otherwise relating to the subject matter of this Contract and the Services (including any Assessment) other than as expressly set out in this Contract are excluded.
7.2. Non-excludable Terms. Lotsearch acknowledges that if, under applicable State, Territory or Commonwealth law, Customer is a consumer certain rights may be conferred on Customer which cannot be excluded, restricted or modified. If that law applies to the Services, for major failures with the Services, Customer is entitled:
(a) to cancel this Contract; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, Customer is entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel this Contract and obtain a refund for the unused portion of this Contract.
7.3. Limit on Liability. Subject to clause 7.2, the total liability of Lotsearch to Customer under or in relation to this Contract for loss or damage of any kind, however caused, due to Lotsearch's negligence, breach of contract, breach of any law, in equity, under indemnities or otherwise, arising out of all acts, omissions and events whenever occurring, is not to exceed in aggregate an amount equal to the Fees.
7.4. Indirect Loss. Subject to clause 7.2, neither party is liable to the other for:
(a) any indirect, incidental, consequential, special or exemplary damages arising out of or in relation to this Contract; or
(b) any loss of profit, loss of revenue, loss of interest, loss of data, loss of goodwill or loss of business opportunities, business interruption arising directly or indirectly out of or in relation to this Contract,
irrespective of how that liability arises including in contract or tort, liability under indemnity or for any other common law, equitable or statutory cause of action or otherwise.
7.5. Waiver and Releases. Customer hereby to the maximum extent permitted by law:
(a) acknowledges that the Third Party Content Supplier has no liability to it under or in connection with this Contract;
(b) waives any right it may have to claim against Third Party Content Supplier in connection with the negotiation of, entry into, performance of, or termination of this Contract; and
(c) releases each Third Party Content Supplier from any claim it may have otherwise had in connection with the negotiation of, entry into, performance of, or termination of this Contract.
Customer acknowledges that any Third Party Supplier shall be entitled to plead the benefits conferred on it under this clause 7.5, despite not being a party to this Contract.
8.1. Notices. A notice, approval, consent, instruction or other communication in connection with this Contract must be in writing. Customer may send notices to Lotsearch at the address specified on the Website. Lotsearch may send notices to Customer at the address and to the person specified in the Order.
8.2. Waiver. A provision of or a right created under this Contract may not be waived except in writing signed by the party granting the waiver or varied except inwriting signed by the parties.
8.3. Independent Contractors. Lotsearch and the Customer are independent contractors. Nothing in this Contract makes Lotsearch and Customer partners or joint venturers or establishes any employment relationship.
8.4. Illegality. If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Contract, but the rest of this Contract is not affected and all other provisions will remain in full force and effect.
8.5. Governing Law. This Contract is governed by the law in force in New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them.
8.6 Binding Agreements. Notwithstanding anything else in this Contract, these terms and conditions shall not apply where a customer has already executed an agreement for the supply of Services, in which case that agreement shall apply.