CityShape – Standard Terms
Last Modified: 22 June 2018
- CityShape makes the Software available to Customers for use through the Website.
- CityShape has agreed to grant the Customer access to the Software in accordance with these Terms.
- These Terms will be accepted by a Customer where the Customer has:
- created a User Account;
- logged into a User Account;
- indicated, whether in writing, verbally or through the Customer’s conduct, that the Customer accepts these Terms; or
- otherwise accessed the Software.
- These Terms may be updated by CityShape from time to time. Where CityShape has updated these Terms, the Customer will be provided with reasonable Notice of such update. If the Customer does not agree to be bound by the updated Terms, the Customer may terminate this Agreement in accordance with clause 1(a).
This Agreement commences on the Commencement Date and will continue until terminated in accordance with clause 12.
4. Access and Use
- Subject to clause 2, CityShape will provide the Customer a Licence to access and use the Software on and from the Commencement Date.
- CityShape reserves the right to refuse a Customer access to the Software or the ability to create a User Account if it considers it reasonable or necessary:
- in order to protect its rights under these Terms and in the Software; or
- to comply with any other commercial agreement to which CityShape is a party.
- The Customer is responsible for maintaining the security of its User Account. If the Customer suspects that any person other than the Customer has gained access to its User Account, or has the ability to gain access to its User Account, the Customer must notify CityShape immediately.
- From time to time CityShape may (but is not obligated to) update the Software and where practicable will provide the Customer with Notice of any such update. Once the Software has been updated the access provided to the Customer to the Software will be governed in accordance with these Terms.
4.2 Customer Responsibilities
- The Licence to the Software granted to the Customer by CityShape in accordance with clause 1(a) is conditional upon the Customer:
- using the Software in accordance with these Terms;
- complying with all reasonable and lawful directions that CityShape may give the Customer from time to time with respect to the Customer’s use of the Software;
- only using the Software in the ordinary operation of its business and not granting or providing any right to any third party, to use or commercialise the Software; and
- co-operating with CityShape in any remediation of any security, unauthorized use or misuse of the Software and promptly reporting to CityShape all such matters of which the Customer becomes aware.\
- In accessing and using the Software the Customer must not:
- allow or engage any third party to access the Software without first obtaining CityShape’s written consent, which CityShape may withhold in its sole discretion;
- interfere with or disrupt the operation of the Software, or attempt to do the same;
- subject to any right under sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software.
- CityShape may at its discretion provide support services to Customers regarding access to, functionality and technical use of the Software. However, CityShape is under no obligation to do so.
- CityShape will not provide support or advice to Customers in regard to the interpretation, understanding or application of data available through the Software.
- The Customer acknowledges and agrees that CityShape may take such action as it considers necessary, including suspension or termination of the Customer’s access to the Software without Notice, where:
- CityShape considers it necessary in order to protect its rights under these Terms and in the Software;
- CityShape considers it necessary in order for CityShape to comply with any other commercial agreement to which it is a party;
- the Customer has breached a provision of these Terms;
- the Customer has failed to pay the Fee to CityShape;
- the Customer has used the Software in breach of any Law, or CityShape considers that the Customer is likely to do so.
- The Customer acknowledges and agrees that:
- computer, internet and software services are not fault free and occasional periods of downtime may occur; and
- CityShape has not made any representations or warranties that the Software will be error free, free of viruses or available without interruption.
- CityShape obtains data that is utilised in the Software and made available to Customers through the Software from third party suppliers. CityShape does not warrant or endorse the accuracy or validity of any information accessible by Customers through the Software. CityShape strongly recommends that Customers employ their own cross-checking and verification processes in order to determine the veracity of all information accessible through the Software.
- CityShape will not be liable and the Customer releases and holds CityShape harmless from any Loss the Customer may suffer as a result of:
- CityShape exercising its rights in accordance with clause 6(a);
- the occurrence of an event described in 6(b);
- reliance upon any data or information available through the Software.
The Customer represents, warrants and undertakes that:
- the Customer has the capacity and authority to enter into and to perform its obligations under these Terms;
- these Terms have been accepted by the Customer or a duly authorised representative of the Customer and accordingly legally bind the Customer;
- it will not use the Software in a manner that is contradictory or inconsistent with these Terms;
- the Customer will comply with all reasonable and lawful directions that CityShape may give from time to time with respect to the Customer’s access to, and use of the Software;
- the Customer will not provide any other person with access to the Customer’s User Account, or otherwise allow any other person other than the Customer to use the Software;
- it will not infringe the rights, including Intellectual Property Rights, of any third party in accessing and using the Software;
- it will not engage in malicious conduct in using the Software including conduct that is targeted at, or has the effect of, disrupting or interfering with the functionality and operating of the Software; and
- it will not breach any Law in accessing and using the Software.
8. CityShape’s responsibilities
- use best endeavours to provide reasonable notice of scheduled maintenance to the Software;
- ensure that the Software will be provided in accordance with these Terms and applicable Laws.
- In order to provide the Customer with access to the Software CityShape may be required to collect certain personal information from the Customer.
10. Intellectual Property Rights
- CityShape owns all Intellectual Property Rights to the Software including all improvements to the Software that are suggested by the Customer.
- Nothing in these Terms is to be construed as or have the effect of assigning ownership of Intellectual Property Rights subsisting in the Software or any data accessible through the Software from CityShape to the Customer.
- Where data accessible through the Software constitutes the intellectual property of a third party, nothing in these Terms is to be construed as, or have the effect of, assigning or purporting to assign ownership of any such Intellectual Property Rights to the Customer.
- Nothing in these Terms affects the ownership of Moral Rights (as that term is defined in the Copyright Act 1968 (Cth)) in the Software.
11.2 Late Payment
- In consideration of CityShape granting the Customer access to the Software, the Customer will pay to CityShape the Fee.
- The Fee will be charged to the Customer in advance and on a monthly basis calculated from the Commencement Date, or as otherwise directed by CityShape from time to time.
- Following the payment of the Fee by the Customer and processing of the payment transaction, the Customer will be issued with a tax invoice for the payment to CityShape.
- CityShape may elect to use the services of a third party payment processor for the purposes of charging the Customer the Fee and processing the associated transaction. Where CityShape elects to engage the services of a third party payment processor, in order to access and use the Software, the Customer will be required to agree to the terms and conditions on payments that are imposed by the relevant third party payment processor. If the Customer does not agree to the terms and conditions of the third party payment processor, it will not be able to access and use the Software.
- The Customer acknowledges and agrees that CityShape may increase the Fees from time to time.
- Where CityShape is increasing the Fees in accordance with clause 1(e) CityShape will provide the Customer with at least thirty (30) days’ Notice of the fee increase.
- If the Customer does not agree to the increase in Fees proposed by CityShape, the Customer may terminate this Agreement in accordance with clause 1 of these Terms.
If the Customer fails to pay or defaults on payment of any Fees when such Fees become due and owing, CityShape may charge the Customer for all costs and expenses incurred by CityShape in recovering the outstanding Fees, including legal fees (on a solicitor and own Customer basis) and court costs, which the Customer must pay upon demand.
Unless otherwise expressly stated, all amounts under these Terms are exclusive of all taxes, duties and customs. If any taxes, duties or customs are imposed on any supply made under or in accordance with this engagement and such taxes, duties or customs have not been accounted for in determining the consideration payable for the supply, then CityShape may recover from the Customer an amount on account of those taxes, duties or customs.
- 12.1 Termination Generally
- Either party may terminate this Agreement upon the provision of Notice to the other party at any time.
- The Licence granted to the Customer and access to the Software will be cancelled immediately upon termination in accordance with clause 1(a).
- Notwithstanding clause 1(b), the Customer acknowledges and agrees that where it has terminated this Agreement in accordance with 12.1(a), the Customer is not entitled to a refund or reimbursement of any Fees that have already been paid to CityShape, unless the Customer has exercised a right of termination in accordance with clause 2(b).
- Where the Customer has exercised a right of termination in accordance with clause 2(b) the Customer will be entitled to reimbursement of the amount of Fees proportionate to the time remaining between the date of implementation of the updated Terms and the end of the relevant billing period.
- Where CityShape has terminated this Agreement in accordance with 1(a), access to the Software and the Licence granted to the Customer will continue until the expiry of the relevant billing period, provided:
- the Customer is not at any time in breach of these Terms or any applicable Law; or
- CityShape is not exercising a right of immediate termination (other than by Notice in accordance with 1(a)) as provided in these Terms.
- 12.2 Termination for breach
Either party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect and without penalty, by written notice to the other Party, in the event of any material breach of the Agreement by the other Party which is not remedied within 14 days of the defaulting party receiving the written notice.
- 12.3 Effect of termination
Upon termination or expiry of this Agreement any accrued rights or liabilities of either Party or any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.
13.1 Customer indemnity
- The Customer agrees to indemnify CityShape and keep CityShape indemnified against any Loss that may be incurred by CityShape arising from or in connection with:
- any breach or default by the Customer of this Agreement (including any breach of warranty);
- a negligent act or omission by the Customer or by a party the Customer is responsible for;
- the Customer’s failure to comply with any Law;
- the Customer’s failure to comply with its contractual obligations to any third party insofar as such obligations arise or relate to the use by the Customer of the Software;
- the infringement of any third party rights, including intellectual property rights, arising from the use by the Customer of the Software.
- The indemnity provided to CityShape by the Customer in accordance with clause 1 will be reduced proportionately to the extent that any Loss incurred by CityShape is contributed to by the negligent acts or omissions of CityShape.
13.2 Exclusion of liability
To the maximum extent permitted by Law, CityShape will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits, loss of data and loss of personnel) arising out of this Agreement or the use of the Software, even if CityShape were appraised of the likelihood of such loss or damage occurring.
13.3 Limit of liability
- Except as expressly provided by this Agreement, the Software and data accessible through the Software is provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition, accuracy or fitness for purpose and CityShape does not warrant that the Software or data will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
- Except in relation to liability for personal injury, CityShape’s liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of CityShape in connection with its obligations under this Agreement will not exceed the total Fees received by CityShape from the Customer in the immediately preceding 3 months calculated from when the cause of action arose.
- CityShape has no responsibility or liability whatsoever as a consequence of any Loss suffered by the Customer as result of:
- any reliance by the Customer on the Software or the data and information accessible through the Software;
- any third party software malfunctions; or
- malfunctions in the Software caused as a result of integration with third party software.
13.4 Exclusion of other Terms
- Subject to clause 4(b), any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
- Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at CityShape’s election) to CityShape providing the Software again or the payment of the cost of having the Software supplied again.
The provisions of this clause 13 survive the termination of this Agreement.
Any notices given under or in connection with this Agreement:
- must be in legible writing and in English;
- must be:
- issued via the Software to the Customer; or
- sent by email to the designated email address of the relevant party which, in the case of CityShape, includes any email address provided by the Customer to CityShape at the time of creating a User Account; or
- delivered to the designated physical address of the relevant party which, in the case of CityShape, includes any address provided by the Customer to CityShape at the time of creating a User Account.
- will be deemed to be received by the addressee:
- if delivered by hand, at the time of delivery;
- if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting;
- if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth); or
- if sent via the Software, within 24 hours of the time that it is sent.
- If a dispute arises out of or relates to this Agreement (Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
- A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this Agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to by them.
- If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
- Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
- Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.
16. General matters
- 16.1 Assignment
- CityShape may assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
- Neither any rights, benefits or liabilities relating to this Agreement may be assigned, novated or otherwise transferred by the Customer without CityShape’s prior consent, which will not be unreasonably withheld.
Unless these Terms expressly state otherwise, a party may in its absolute discretion, give conditionally or unconditionally, or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.
These Terms are governed by the law in force in the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.
No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.
Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which shall remain in force.
- 16.6 Waiver
- Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.
- Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.
Definitions and Interpretation
In this Agreement:
Agreement means the agreement entered into between CityShape and the Customer regarding the use of the Software and in accordance with these Terms.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
CityShape means CityShape Pty Ltd ACN 621 886 815.
Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Customer means the party entering into this Agreement with CityShape regarding the Licence and use of the Software.
Commencement Date means the date on which the Customer accepts and agrees to be bound by these Terms in accordance with clause 2.
Fees mean the fees payable to CityShape by the Customer for access to the Software as notified to the Customer at the time of creating a User Account or as updated from time to time.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all intellectual property rights, including the following rights:
a. copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
b. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
c. all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,
d. whether or not such rights are registered or capable of being registered.
Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
Licence means a non-exclusive, non-transferable licence to use the Software.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Software means the online map-based software provided by CityShape.
Notice means a notice given under or in connection with this Agreement that adheres to the requirements in clause 14.
Term means the period commencing upon the Commencement Date and expiring upon the final day of the Licence Term granted by CityShape to the Customer as specified in the Proposal.
Terms means this document and any annexure, schedule and appendix to it.
User Account means the account created by Customers of CityShape through the Website allowing them to access the Software.
Website means the website located at <https://www.cityshape.com.au/> and any other website through which CityShape makes the Software available from time to time.