1.1 PointData Pty Ltd ACN 166 676 919 (‘Company / us / we’) makes available for purchase various products (‘each a ‘Product’) including:
1.1.1 Property Development Potential Report;
1.1.2 Property Value Report;
1.1.3 Vendor Listing and Market Profile Report ; and
1.1.4 Platinum Subscription Service.
1.3 By purchasing or accessing the Product, you agree to be bound by these Terms.
1.4 If you do not agree to comply with these Terms, do not purchase or access the Product.
1.5 The Product relies upon data provided by third parties and external sources, including State based government agencies, to generate the Product (the ‘Data’).
1.6 You acknowledge that where you request information about a property located in a particular State or Territory in Australia (‘State’), you have read and accepted the relevant section for each State contained in these Terms.
1.7 Headings are for convenience and do not affect the interpretation of these terms.
2. Product and Data
2.1 Each of the Products is generated by an algorithm that analyses the Data. A report is generated based on the outcome of the analysis.
2.2 The Product, amongst other things, relies on the following key assumptions (‘Assumptions’[ 1] [GB2] ):
2.2.1 the shape of the parcel of land is rectangular or square when applying the dimensions of area and frontage; and
2.2.2 all zoning information and planning policy is kept current by the relevant local government.
2.3 If any of the Assumptions are invalid, the Product may not be accurate and you should not rely on the estimations, valuations or projections contained in the Product.
2.4 There are a number of factors that could impact the estimations, valuations or projections in the Product, including but not limited to the following (‘External Factors’):
2.4.1 changes in future interest rates and building rates;
2.4.2 economic conditions;
2.4.3 consumer and business confidence;
2.4.4 Government policy;
2.4.5 changes in law and taxation;
2.4.6 valuation data;
2.4.7 planning zoning and policies;
2.4.8 title information; and
2.4.9 real estate sales data.
2.5 We do not have any control over the External Factors.
2.6 You undertake, represent and warrant to us that you will seek independent legal, financial and other professional advice before making any decision to purchase or develop a property and will not rely on the information contained in the Product but will undertake your own analysis and assessment as to the value, viability and appropriateness of your proposed acquisition or development.
3.1 We grant you a non-exclusive, non-transferable, non-sub-licensable limited license to access and use the Product in accordance with the Terms.
4. Permitted Use
4.1 You must:
4.1.1 comply with the Terms at all times;
4.1.2 use the Product solely for the purpose for which it is intended, and in accordance with all laws;
4.1.3 only use the Product for personal use or for internal purposes within your business (and not for resale or the benefit of anyone outside your business); and
4.1.4 only use the Product within Australia.
4.2 You undertake, represent and warrant to us that you will not:
4.2.1 use the Data or Product for any other purpose other than as listed in clause 3.1.2 of these Terms.
4.2.2 distribute the Data or Product to third parties without the Company’s prior written consent;
4.2.3 use any list of addresses compiled from the Product (or other information contained in the Product) to facilitate the provision by any person of advertising matter or any other information to, or otherwise to facilitate any person contacting any other person, and whether for marketing purposes or for any other purpose, commercial or otherwise;
4.2.4 use the Product for any unlawful purpose or in any way that violates the rights of the Company or any licensor;
4.2.5 modify the Product or Data in any way;
4.2.6 reverse assemble, reverse engineer or reverse compile the Data, Product or any part of the Product;
4.2.7 infringe any intellectual property rights of the Company or any other person (including with respect to the Product or the Data); or
4.2.8 unless otherwise agreed with us in writing, purchase the Product for a third party.
5.1 Unless otherwise agreed to by us in writing, payment must be paid at the time of ordering the Product(s).
5.2 Payment must be made through our online payment platform (or such other means as we require at the time you order the Product(s).
5.3 The price of the Product includes any applicable taxes (including GST[ 3] ).
5.4 Except for any right under clause 8.13 of these Terms, you agree that you are not entitled to a refund of the purchase price of the Product for any reason after you purchase the Product.
6. Beta Versions of the Product
6.1 PointData may provide access to a Product (‘Beta Versions’) based on a ‘pre-release’ or ‘beta’ version of the algorithm that analyses the Data. PointData may, but is not obliged, to provide access to Beta Versions of a Product free of charge. PointData reserves the right to charge you a fee for use of the Beta Versions at any time.
6.2 Your use of the Beta Versions during beta testing is only permitted for the period specified by PointData, the beta testing period or until access is removed by PointData. PointData may amend, suspend or terminate your right to use the Beta Versions at any time for any reason at its sole discretion, without liability to you.
6.3 Access to the Beta Versions does not grant to you any right to use any Product once beta testing has concluded. PointData makes no promises that the Beta Versions will ever be made generally available following the end of beta testing.
6.4 You acknowledge that any Beta Versions are still under development, may be inoperable or incomplete and may contain errors and you acknowledge that your use of any Beta Versions is at your own risk and agree not to bring any claim in relation to your use of or reliance on Beta Versions.
6.5 You acknowledge that PointData may, at its sole discretion, include, update or remove features of the Beta Versions. You understand that you may not be able to revert back to earlier versions of the Beta Versions or access features that have been removed or updated (including any data associated with such features).
6.6 To the maximum extent permitted by law, PointData does not give any warranties or guarantees with respect to the Beta Versions.
7. Intellectual Property
7.1 All intellectual property rights in relation to the Data and the Product belongs to the Company or its licensors. You do not obtain an interest in any intellectual property rights of the Company or its licensors in connection with or relating to the Product, save for the limited license in clause 3.1.
7.2 All information, data (including the Data) and content in the Product, without limitation, is protected by Australian and international copyright and other intellectual property laws. You undertake, represent and warrant to us (for ourselves and on behalf of our licensors) not engage in any conduct or do anything which interferes with or breaches those laws or the intellectual property rights in the Product or Data.
By acquiring or accessing the Product you acknowledge and agree to the following disclaimers, each of which limits any liability that we may otherwise owe you (whether in contract, tort or otherwise):
8.1 The Company does not warrant the accuracy or completeness of the information in the Product.
8.2 The information in the Product is general in nature, current as at that the date you acquire the Product (but not otherwise) and does not constitute advice.
8.3 The information in the Product is provided for general information purposes only and is a summary based on selective information which may not be complete for your particular purposes. We have not, and have no obligation to, take into account any of your particular circumstances or goals.
8.4 As the Product does not take into account your particularly circumstances or goals you undertake, represent and warrant to us that you will:
8.4.1 seek advice specific to your circumstances from professional advisers before acting on any information in the Product;
8.4.2 consider whether it is appropriate for your circumstances; and
8.4.3 independently check the suitability of the Product,
including by obtaining advice from appropriately qualified professional advisers.
8.5 Any estimated value or value ranges and target sales prices in the Product are based on public sales history (which has not been independently checked or verified by us) and may not include all sales. You acknowledge and agree that sales history and past performance is not indicative of future performance.
8.6 The Product does not guarantee any particular investment return, sale price, financial performance, or salability of a particular property or development.
8.7 The Product is not a professional appraisal of the subject property by a professional valuer, builder, architect or sales agent, and should not be relied upon as such.
8.8 Any information in the Product relating to the development of the property is subject always to council consent and approval.
8.9 Any information in the Product relating to estimated development costs are indicative only and based on the Company’s reasonable estimates of likely development costs. It should not be relied upon as certain or fixed costs, and should not be considered an exhaustive list of all types of development costs. Other development costs may apply.
8.10 The Product is of a general nature and does not constitute financial, tax or legal advice in any form. You undertake, represent and warrant that you will seek independent financial, tax and legal advice before making any decision regarding whether to invest or to redevelop a property.
8.11 You elect to use the Product (including the Beta Versions) at your own sole risk and release and indemnify us (to the greatest extent permitted at law) from all loss or damage that you suffer or incur as a result of or in connection with your use of the Product (including Beta Versions).
8.12 The information comprised in the Data that forms the Product may change without notice and we are under no obligation to notify you of any change or to provide any update to the Product.
8.13 To the extent that the Competition and Consumer Act 2010 (Cth) implies any warranties under these Terms that cannot be excluded, our liability in respect of those implied warranties is limited to:
8.13.1 the replacement of the Product; or
8.13.2 the payment of the cost of replacing the Product or acquiring an equivalent product.
9.1 You may discontinue your use of the Product at any time.
9.2 We may restrict your ability to purchase a new instance of the Product if you breach these Terms, or if your ongoing use of the Product is unacceptable to us (acting in our absolute discretion).
10. Limitation of Liability and Indemnity
10.1 You agree that we will not be responsible for any loss or damage arising directly or indirectly from or in relation to the accuracy of the Data or information contained in the Product or your reliance on the Product (including information contained in or your reliance on Beta Versions).
10.2 You must not bring, and you release us, our directors, officers, employees and agents (‘our Personnel’) from any claim against us or our Personnel and you indemnify us and our Personnel for any demands, claims, actions, damages, costs (including legal costs on a solicitor and own client basis), losses (including consequential loss), expenses or other amounts we or our Personnel suffer or incur as a result of or in connection with:
10.2.1 your acts or omissions (including but not limited to your failure to comply with these Terms);
10.2.2 Any claim or proceedings brought by a third party against us or our Personnel in connection with your use of the Product;
10.2.3 any person’s use or reliance on the Data or the Beta Versions;
10.2.4 any infringement of our intellectual property rights;
10.2.5 any willful, unlawful or negligent act or omission of you;
except to the extent that such loss, damage or injury was directly caused by us and does not relate to or arise from your use of the Beta Versions.
10.3 To the maximum extent permitted by law, the Company does not accept liability for any loss or damage whatsoever which may directly or indirectly result from any advice, opinion, information, representation or omissions, whether negligent or otherwise, contained in a Product (including any Beta Version).
10.4 To the extent that any disclaimer or exclusion in these Terms is prohibited by law, the maximum liability of the Company to you in relation to your use of the Product (including any Beta Version) is limited to the amount you paid to purchase the Product.
11. South Australian Properties
11.1 By accepting these Terms, you acknowledge and accept the following statement made by Government of South Australia:
The information contained in this dataset is extracted from records of land status and cadastral boundary definition held by the Government of South Australia (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 the right of the State of South Australia. The information is reproduced under license from the Crown.
The information contained in this dataset must not be used for the purposes of compiling contact lists, whether personalized or not.
11.2 Copyright in this information (as it is contained in the Product) belongs to the State and the State does not accept any responsibility for the accuracy or completeness of the information or its suitability for any purpose.
11.3 The information (as it is contained in the Product) is based on data supplied by the State and is published by permission. State does not accept any responsibility for the accuracy, completeness or suitability for any purpose of the published information or the underlying data.
12. General provisions
12.1 The Laws in South Australia govern these Terms. Each party submits to the non-exclusive jurisdiction of the courts of South Australia and the Federal Court of Australia (Adelaide Registry) and irrevocably waives any right to object to proceedings being brought in those courts on the basis that proceedings have been brought in an inconvenient forum.
12.2 These Terms record the entire contract between you and the Company for the Products and no term is implied into these Terms other than as required by law.