Terms & Conditions
Please read these terms and conditions carefully. They govern Your commercial relationship with Us and sets out legally binding provisions which regulate Your use of Our website and Platform (including any desktop and mobile versions of it, and any of Our associated smartphone applications) and all of the services that We make available through Our Platform or otherwise provide directly to You.
1. Acceptance and modification of these Terms
1.2. If You are accepting these Terms on behalf of a company or other legal entity (whether as authorized employee, agent or attorney), You represent that You have the authority to bind such entity and its Affiliates to these Terms and any Agreement, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates.
1.3. We may modify these Terms from time to time by reasonable advance notice to You (including by resubmitting revised terms to you for acceptance or notifying You of the update using the email address that You enter into Your Platform Account).
1.4. We will always upload the latest version of these Terms to this webpage.
1.5. If You do not wish to accept these Terms, You must not and cannot use the website, the Platform or the Services or any part of them.
2. Definitions and Interpretation
In these Terms:
Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party.
Agreement means the agreement between the parties formed under clause 1.1 and includes any schedules or annexures to these Terms as well as any additional or varied terms agreed between You and Us in writing.
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday – Friday excluding public holidays in NSW.
Business Hours means 9:00am – 5:00pm on Business Days.
Confirmed Order means an Order confirmed in accordance with clause 3.3.
Control of an entity meaning means having more than 50% ownership or the right to direct management of an entity.
Data means all works and materials (including without limitation text, datasets, analyses, graphics, images, audio material, video material, audio-visual material, scripts, software and files).
Fees means the fees described in a Proposal for Services or otherwise set out in writing by Us which are payable by You for the provision of Our Services.
Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, epidemic or pandemic, act of God, riot, national or regional emergency, government action or restrictions or other circumstances beyond Our reasonable control.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”).
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Indemnified Parties means Us, our Affiliates and their directors, employees, contractors, agents, workers and personnel.
Location means a location(s) where We will conduct the Services as specified in a Proposal for Services.
Loss or Claim means any damage, loss, liability, cost or expense (including all reasonable professional costs on a full indemnity basis) incurred by a party or a claim, action, proceeding or demand made against a party, however arising and whether present or future, fixed or unascertained, actual or contingent.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
Order means an order placed by You in accordance with clause 3.1.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
Platform means the "Measure Australia" website and Platform owned and/or provided by Us, the homepage URL of which is https://measureaustralia.com.au/ and also includes the Platform Services and any content, images, text and other information appearing on any page or screen of the website and Platform and any source code and object code in the Platform, and also refers to any desktop and mobile versions of the website and Platform and any of Our associated smartphone applications.
Platform Account means Your account on the Platform that is setup when You register on the Platform or subscribe to the Platform Services.
Platform Services means the services made available via the Platform from time to time.
Proposal for Services means a proposal prepared by Us in response to or in respect of an Order.
Registered User means as set out in clause 7.1.
Registered User Data means as set out in clause 9.1.
Service(s) means any Platform Services, Surveying Services or other services provided by Us to You and as set out in a Proposal for Services, a Confirmed Order or otherwise agreed in writing between You and Us.
Service Data means Data or Intellectual Property Rights generated by Us while providing the Services.
Surveying Services means drone flight services and related flight operations services, inspection, recording, surveying, analysis and data services (including services described as Drone Mapping and Surveying, Drone Building & Roof Inspections, Complex Drone Management, LiDAR Laser Surveying, Beyond Visial Line of Sight BVLOS, Drone Asset Inspections & Monitoring, Dilapidation Reporting, UAV operations or Drones as a Service™ services) made available to You under a Proposal for Services, a Confirmed Order or as otherwise agreed in writing between You and Us.
Tax Invoice has the same meaning as in the GST Act.
Terms means the terms and conditions set out on this webpage as amended by Us from time to time, or as referenced or linked to a Proposal for Services.
Third Party Services means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Platform from time to time in circumstances where the You must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider.
We, Our and Us means Measure Australia Pty Ltd (ACN 602 096 211) of Level 1, 14 Whiting Street, ARTARMON NSW 2064.
You means you, the person who utilizes or receives the Services or accesses the Platform for any reason, whether or not You are a Registered User of the Platform.
In these Terms:
(a) Headings and underlinings are for convenience only and do not affect the construction of these Terms.
(b) A provision of these Terms will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party's legal representative prepared the provision.
(c) Currency refers to Australian dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(e) A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of these Terms.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in NSW.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words "includes", "including" and similar expressions are not words of limitation.
3.1. An Order may be placed by You in the following ways:
(a) directly with Us by email in a form substantially similar to that set out in Appendix 1;
b) by way of an online order form available on this Platform; or
(c) by telephone.
3.2. After receiving Your Order, We will provide You with a Proposal for Services which will be valid for no longer than the amount of time specified in the Proposal for Services. We reserve the right to confirm or reject any Order in our absolute discretion.
3.3. An Order placed by You is not binding on Us until the earlier of:
(a) You confirming your acceptance of a Proposal for Services; or
(b) the Order otherwise being confirmed in writing by Us.
3.4. Any Order, Proposal for Services or Confirmed Order incorporates (or is deemed to incorporate) these Terms and may not be varied unless expressly agreed to by the parties in writing. In the event of any inconsistency or conflict, the following order of precedence will apply: Terms, the Confirmed Order, Proposal for Services, the Order.
3.5. You may cancel a Confirmed Order at any time by providing written notice to Us subject to the following conditions:
(a) You may freely cancel Your Confirmed Order up to six Business Days prior to Your scheduled booking time, in which case any deposit paid by You will be fully refunded and any costs incurred by Us to this point will be billed by Us to You;
(b) if You cancel Your Confirmed Order less than six Business Days but more than two Business Days prior to Your scheduled booking time, You will be charged and must pay to Us 50% of the total Fees payable in respect of Your Confirmed Order, plus any costs incurred by Us; and
(c) if You cancel Your Confirmed Order within two Business Days of Your scheduled booking time, You must pay 100% of the total Fees payable in respect of Your Confirmed Order.
3.6. We may cancel Your Confirmed Order if We determine that We are unable to complete Your Confirmed Order, including, without limitation, where We determine in Our absolute discretion that it is not safe to provide the Services described in a Confirmed Order, in order to comply with Civil Aviation Safety Regulations or because We are unable to obtain necessary consents or permits required to fulfil Your Confirmed Order.
3.7. Where Your Confirmed Order is cancelled by Us, and this is not as a result of Your conduct, acts or omissions, no Fee will be payable by You and You will be reimbursed any deposit paid, outside of costs already incurred and agreed by you.
3.8. Where Your Confirmed Order is cancelled by Us and this is as a result of Your conduct, acts or omissions, You may be charged Fees in accordance with clause 3.5.
3.9. We reserve the right to reschedule Your scheduled booking time in Our absolute discretion including, without limitation, in response to prevailing weather conditions. Where Your scheduled booking time must be rescheduled You will be informed of Your new booking time as soon as possible.
3.10. Where it is necessary to reschedule Your scheduled booking time and this is not as a result of Your conduct, acts or omissions, no additional fees will be charged. Where it is necessary to reschedule Your scheduled booking time and this is as a result of Your conduct, acts or omissions, a rescheduling fee of 50% of the Fees payable may be charged by Us.
4. Customer Obligations
4.1. You must provide all necessary material to Us required in order for Us to provide the Surveying Service, in Our requested format, within seven (7) days of the request. You shall be liable to Us for any loss or damage or consequential loss or damage whatever arising from a failure to comply with this clause 4.1.
4.2. You must grant full access to Our employees and agents to any Location for Us to carry out the Surveying Services.
4.3. You are responsible to obtain all necessary permits and to mark out the site at the Location.
4.4. You must ensure when agreeing to a Confirmed Order that there is sufficient information to enable Us to provide the Surveying Services, or where applicable, the Platform Services.
5. Platform Registration
5.1. We reserve the right to accept or reject any person's registration on the Platform in Our absolute discretion.
5.2. If You submit an application to register on the Platform, You:
(a) will be deemed to have irrevocably warranted that during the application process You provided truthful and accurate information only;
(b) will be deemed to have irrevocably warranted that You applied for registered on the Platform on behalf of and with the authority and consent of any business entity that you entered into the Platform Account registration form;
(c) will be deemed to have irrevocably agreed to be jointly and severally liable for any breach of these Terms by that business entity.
5.3. You must ensure that You provide a valid email address at the time of registration.
5.4. We reserve the right to send an email to You with a hyperlink which requires You to verify that You are the owner or operator of the email address entered by You during registration and to cancel/not approve Your registration on the Platform if Your rights to the email address are not so verified, or where You do not satisfy any of Our other eligibility criteria.
5.5. If any of Your contact details or other information which You provide during the application process change, You must promptly update those details in Your Platform Account with Your up-to-date details and information.
5.6. You must not provide Your Platform Account name or the password for Your Platform Account to any person. You agree and acknowledge that You shall be solely responsible for the confidentiality of Your username and password and any use of Your Platform Account (including unauthorised use).
5.7. You must immediately notify Us if You become aware of any unauthorised use of Your Platform Account.
6. Integrations with Third Party Services
6.1. The Platform may be integrated with certain Third Party Services and We may integrate the Platform with additional Third Party Services at any time.
7. Registered Users
7.1. Only users who have a Platform Account ("Registered Users") may access the Platform Services. We may initiate registration of an account on your behalf of You and any of your users.
7.2. You agree and acknowledge that if You become a Registered User You will have a non-exclusive, non-assignable, non-sublicensable, revocable right to access the Platform Services for the purposes of accessing agreed output resulting from the Surveying Services forming part of Your Order.
7.3. A Registered User may only access the Platform Services solely for the purpose of accessing agreed output resulting from the Surveying Services and subject to the provisions set out in these Terms.
7.4. You must pay all costs associated with accessing the Platform, including internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs and roaming charges.
7.5. Without limiting Our rights, if you fail to pay any Fees We may suspend and/or terminate the Registered User's access to the Platform Services and its Registered User Data hosted in the Platform Services.
8.1. In consideration for the Services and access to the Platform Services, You agree to pay the Fees.
8.2. We will issue You with a Tax Invoice in respect of the Fees in accordance with the GST Act.
8.3. You must pay to Us the Fees plus any GST within 14 days of receipt by You of the Tax Invoice.
8.4. Unless otherwise provided for in writing, You will be responsible, and We will charge You, for any authorisation, administration and/or clearance fees charged by any regulatory authority or other authorizing body in relation to the Services.
8.5. Interest on overdue Tax Invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
8.6. In the event that Your payment is dishonoured for any reason You shall be liable for any dishonour fees incurred by Us.
8.7. If You default in payment of any Tax Invoice when due, You shall indemnify Us from and against all costs and disbursements incurred by Us in pursuing the debt including legal costs on a solicitor and own client basis and Our collection agency costs.
8.8. Without prejudice to any other remedies We may have, if at any time You are in breach of any obligation (including those relating to payment) We may suspend or terminate the Services or your Platform access, including any licenses granted under clause 13.3. We will not be liable to You for any loss or damage You suffer because We have exercised our rights under this clause.
9. Responsibility for and ownership of Registered User Data
9.1. If You are a Registered User, We agree that as between You and Us, We own all Data that You upload into the Platform Services or otherwise provide to us in connection with the Services which may include any augmented field Data ("Registered User Data").
9.2. You agree and acknowledge that:
(a) the Platform Services and/or Your Registered User Data may be hosted by Us or Our suppliers on hardware or infrastructure located in or outside Australia; and
(b) We may not own or operate the infrastructure upon which the Platform Services and/or the Registered User Data is hosted.
9.3. If You are a Registered User, You warrant, agree and represent that:
(a) You will only upload, input and transfer Registered User Data into and/or via the Platform Services or disclose Registered User Data to Us, which You are fully entitled and authorised to upload, input, transfer and disclose; and
(b) Your Registered User Data and Our collection, use, storage and/or disclosure thereof in the course of providing the Platform Services, will not breach any applicable law or right of any person.
9.4. If You are a Registered User, You license us on an irrevocable, non-exclusive, royalty-free, worldwide basis to use and publish your Registered User Data on the Platform as required by Us to provide the Platform Services or as otherwise required by Us to provide the Service.
9.5. Each Registered User is solely responsible for the accuracy, legality and quality of all its Registered User Data and for obtaining any permissions, licenses, rights and authorisations necessary for Us to use, host, transmit, store and disclose the Registered User Data in connection with the provision of the Platform Services.
9.6. If You are a Registered User, except in respect of any Non-Excludable Guarantee, You agree that You, not Us, are solely responsible for backing up and archiving all Registered User Data.
9.7. If You are a Registered User, You acknowledge that Your access to Your Registered User Data that is hosted by the Platform Services is subject to Your compliance with these Terms.
9.8. Except in respect of any Non-Excludable Guarantee, You agree that We are not responsible for any loss, corruption or hacking of any Registered User Data.
9.9. You indemnify Us in respect of any loss and damage We or any of Our suppliers incur in respect of any claim that any of Your Registered User Data is lost, unavailable or corrupted or the transmission, storage, disclosure, or access to any of Your Registered User Data infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.
10. Availability of Platform Services
10.1. Subject to clauses 10.2, 10.3 and 10.4, while You are a Registered User of the Platform, We agree to use Our best endeavours to procure hosting of the Platform Services and the Registered User Data and to ensure that the Platform Services are available.
10.2. The availability of the Platform Services to You will be subject, in addition to any other provisions set out in these Terms, to any bandwidth limitations, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions set out in the Platform Services Description, and any planned and unplanned maintenance of the Platform and/or Our hosting providers.
10.3. You agree and acknowledge that the accessibility and use of the Platform, the Platform Services and the Registered User Data hosted by the Platform Services is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which the Platform and/or Platform Services and/or Registered User Data operate, interface with or connect to, and that We are not responsible for any non-performance of the Platform associated with any of those matters.
10.4. Except in respect of any Non-Excludable Guarantee, We do not guarantee that the Platform, Platform Services or Registered User Data or access thereto will be uninterrupted or error-free and You release and indemnify Us in respect of any loss and damage that We may incur and/or claims and/or complaints You or your customers may have against Us in respect of any interruption, error or unavailability of the Platform, Platform Services or any Registered User Data.
11. Usage Restrictions
11.1. You may not make any use of the Platform except as permitted by these Terms and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights in the Platform. Without limiting the foregoing provisions, You must not, under any circumstances, sell or resell access to the Platform or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicence, copy or duplicate the Platform or any content You obtain via the Platform (other than Your Registered User Data). In addition, You must not, nor may You permit any person to:
(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, create derivative works from or enhance the Platform and/or any content in the Platform (except any of Your Registered User Data) (except as expressly permitted by the Copyright Act 1968 (Cth));
(b) do any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights or those of Our licensors;
(c) use the Platform in any way that infringes Our rights or the rights of any third party;
(d) use the Platform to create any product or service that competes with the Platform; or
(e) take any steps to circumvent any technological protection measure or security measures in the Platform.
11.2. You must not use the Platform or any part of the Platform in any way which is in breach of any statute, regulation, law or legal right of any person.
11.3. You must not use the Platform or any part of the Platform in breach of these Terms.
12. Acceptable Use Policy
12.1. You agree that:
(a) using the Platform to violate all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited by these Terms;
(b) using the Platform in relation to crimes such as theft and fraud is strictly prohibited by these Terms;
(c) using the Platform in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of "pirated" software or otherwise, is strictly prohibited by these Terms;
(d) introduction of malicious programs into Our network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited by these Terms;
(e) revealing Your account password to others or allowing use of Your Platform Account by others is strictly prohibited by these Terms;
(f) using another person's name, username or password or otherwise attempting to gain access to the Platform Account of any other person is strictly prohibited by these Terms;
(g) using the Platform to make fraudulent offers of goods or services is strictly prohibited by these Terms;
(h) using the Platform to carry out security breaches or disruptions of network communication is strictly prohibited by these Terms. Security breaches include, but are not limited to, accessing data of which You are not an intended recipient or logging into a server or account that You are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
(i) using the Platform to execute any form of network monitoring which will intercept data not intended for You is strictly prohibited by these Terms;
(j) using the Platform to circumvent user authentication or security of any of Our hosts, networks or accounts or those of Our customers or suppliers is strictly prohibited by these Terms;
(k) using the Platform to interfere with or deny service to anyone is strictly prohibited by these Terms;
(l) using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person's use of the Platform is strictly prohibited by these Terms;
(m) sending unsolicited email messages through or to users of the Platform in breach of the Spam Act 2003 (Cth) is strictly prohibited by these Terms;
(n) using the Platform to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages is strictly prohibited by these Terms; and
(o) use of the Platform in breach of any person's privacy (such as by way of identity theft or "phishing") is strictly prohibited by these Terms.
13. Intellectual Property Rights
13.1. You agree and acknowledge that these Terms do not transfer or assign any Intellectual Property Rights to You.
13.2. As between You and Us, We own all Intellectual Property Rights in the Platform and the Service Data.
13.3. Upon full payment of all Fees described in respect of a particular Proposal for Services or other Service proposal prepared by Us from time to time, We will grant You a perpetual, royalty free, non-exclusive and non-transferable licence to use the Services Data for Your internal purposes or other purposes as set out in a Confirmed Order.
13.4. You grant Us the right to use Your company’s name and logo in Our marketing materials or tender documentation.
13.5. You have no rights in the Platform or in any part of it or in any modification or enhancement thereof, other than the rights temporarily granted to You pursuant to these Terms.
13.6. You agree that any Intellectual Property Rights in any comments that You may provide to Us in connection with the Platform or requests for new Platform features (each, an "Improvement Suggestion") becomes Our sole and exclusive property immediately upon You uploading or posting that Improvement Suggestion to the Platform or otherwise providing the Improvement Suggestion to Us, and You hereby assign all Intellectual Property Rights in all and any such Improvement Suggestions to Us effective as soon as You provide each Improvement Suggestion to Us or upload or post an Improvement Suggestion to the Platform, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. You consent to the infringement by Us and any third party We authorise, of all Moral Rights that You may have in any Improvement Suggestions.
13.7. You must not take any step to invalidate or prejudice Our (or Our licensors') Intellectual Property Rights in the Platform or otherwise. Without limiting the foregoing provisions, You must not register any security interest or purchase money security interest on the Personal Property Securities Register, or otherwise encumber or charge Your rights in respect of Your Registered User Data or with respect to the rights granted to You by these Terms to use the Platform.
14. Responsibility for other users
14.1. We do not accept responsibility for the conduct of any users of Our Platform.
14.2. If You believe that another user of Our Platform has breached these Terms please contact Us.
15.1. You acknowledge and agree that You are solely responsible for and You indemnify Us and other Indemnified Parties against any Loss or Claim arising from or relating to:
(a) Your use of the Platform and/or the Service;
(b) Your internal goods, services, advertising, sales and marketing practices that may otherwise incorporate the Service Data or any other information relating to the Services;
(c) Our obeying or acting in accordance with express and lawful directions or instructions issued or provided by You in connection with the provision of the Services;
(d) any material provided by You in accordance with clause 4;
(e) a breach of these Terms or the Agreement by You; or
(f) a negligent act or omission by You.
16. App-Specific Provisions
16.1. The provisions of this clause 16 apply only to Your use of any Platform smartphone application that You download from the Apple App Store or Google Play (each, an app).
16.2. You agree that these Terms are part of an agreement between You and Us and not between You and Apple, or You and Google. As between Us and Apple Inc., and as between Us and Google Inc., We are solely responsible for any product warranties pertaining to the app, whether express or implied by law, to the extent not otherwise effectively disclaimed under these Terms.
16.3. In the event of any failure of the app to conform to any applicable warranty and where the warranty relates to Your use of a version of the app downloaded through the Apple App Store You may notify Apple, and Apple will refund the purchase price for the app to You (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty will be Our sole responsibility.
16.4. You and We each acknowledge that, subject to clause 16.5, as between You and Us, We, and not Apple or Google, are responsible for addressing any of Your claims relating to the app or Your possession and/or operation of the app, including, but not limited to: (i) product liability claims made in respect of the app; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.
16.5. Notwithstanding the provisions of clause 16.2, 16.3 and 16.4, and for the avoidance of doubt, You agree:
(a) to release and indemnify Us from any claims that You or any other person might otherwise have (including any claims arising under consumer protection or similar legislation in respect of the app and any other claims, losses, liabilities, damages or expenses) which relate to Your acts or omissions;
(b) You, and not Us, will be solely responsible for any of the matters referred to in clauses 16.2, 16.3 and 16.4to the extent they are caused or contributed to by You.
16.6. We and You each acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance or support services with respect to the app.
16.7. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
16.8. We and You each acknowledge and agree that Apple and Google, and Apple's and Google's respective subsidiaries, are third party beneficiaries of these Terms, and that Apple and Google will each have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third party beneficiary of these Terms.
17.1. We do not represent, recommend or endorse any websites to which We have linked from the Platform via hyperlink or otherwise.
18. Liability – Services general
18.1. Except in respect of any Non-Excludable Guarantees and notwithstanding anything to the contrary in these Terms or the Agreement, to the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any Loss or Claim howsoever incurred in relation to Your use of or inability to use the Platform, Your use of or reliance on the Services or with respect to any of the circumstances addressed in clause 15.1.
18.2. Any Services supplied by Us (which for the avoidance of doubt, includes the Platform Services supplied by Us) may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depends on whether You are a 'consumer' of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where You are a 'consumer' for the purposes of the Australian Consumer Law, We are required to provide and shall be deemed to have provided the following mandatory statement to You: "Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure."
18.3. If the Service supplied by Us to You (which for the avoidance of doubt, includes the Platform Services supplied by Us) are supplied to You in Your capacity as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended You will have the benefit of certain non-excludable guarantees in respect of those goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the Services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the Services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit Our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by Us to You, in respect of each of the Services, where it is fair and reasonable to do so, at Our option, to one or more of the following:
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
18.4. Any warranty against defects provided by Us to You in Your capacity as a 'consumer' under the Australian Consumer Law is in addition to Your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
18.5. Except in respect of any Non-Excludable Guarantees, all conditions, warranties and guarantees implied in these Terms are excluded, to the extent possible by law.
18.6. To the extent that Our liability is not otherwise excluded by these Terms, subject to any Non-Excludable Guarantees, Our liability to You in respect of the Services is limited to the lesser amount of (a) the aggregate sum of the Fees paid by You to Us or (b) $1000.
19. Liability – Platform and Platform Services
19.1. Except in respect of any Non-Excludable Guarantees, We do not represent that the information on the Platform or in the Service Data is accurate, correct, up-to-date or error free.
19.2. The information on the Platform or received by You as part of the Service is not professional advice. You agree that You will seek all appropriate financial, legal and other advice as applicable before relying on any information You obtain from the Platform or the Service.
19.3. We take no responsibility if any specifications or instructions provided by You are wrong or inaccurate and You will be liable in that event for the expenses incurred by Us for any work required to rectify the Services.
19.4. To the extent possible by law, We are not liable to You for any indirect, special or consequential loss or damage incurred by You, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data or damages caused by a third-party hosting provider.
20. Liability – Surveying Services
20.1. To the extent possible by law, We are not liable to You for any indirect, special or consequential loss or damage incurred by You, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data or damages caused by the Surveying Services.
20.2. Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any Loss or Claim howsoever incurred in relation to Our provision of or Your use of the Surveying Services or with respect to any of the circumstances addressed in clause 15.1.
20.3. To the extent that Our liability is not otherwise excluded by these Terms, subject to any Non-Excludable Guarantees, Our liability to You in connection with the Drone Services is strictly limited to the aggregate sum of the Fees paid by You to Us relating to the Surveying Services.
21.1. Either party may cancel a Confirmed Order in accordance with clause 3.
21.2. If you are not a Registered User, We may terminate these Terms and Your access to the Platform or any part of it at any time without notice.
21.3. If You are a Registered User, We may terminate the Agreement and Your access to the Platform by notice to You if:
(a) You breach any material term of these Terms or the Agreement; or
(b) where reasonably necessary to protect Our legitimate commercial interests.
21.4. We may take down the Platform or any part of it or take the Platform or any part of it offline at any time without notice where reasonably necessary to protect Our legitimate commercial interests.
21.5. Termination of these Terms and access to the Platform does not affect any accrued rights of either party.
22.1. Subject to any express restrictions elsewhere in these Terms and Conditions, We may subcontract any of Our obligations under this agreement without requiring any consent.
22.2. We shall remain responsible to You for the performance of any subcontracted obligations.
22.3. Where is it necessary as determined in Our discretion, We will notify You of Our use of subcontractors but You agree that We are otherwise not obliged to notify You of Our use of subcontractors.
23.1. Any notice issued to You from Us or from Us to You shall be in writing and sent by hand delivery, post or email. Where sent from Us to You, We shall use Your contact details for your Platform Account.
23.2. You may contact Us or send a notice to Us using Our contact details that are specified on Our website at https://measureaustralia.com.au/contact-us/.
23.3. Any notice issued by hand shall be deemed delivered upon delivery.
23.4. Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
23.5. Any notice issued via email shall be deemed to be delivered upon receipt by the sender of an electronic read receipt or delivery receipt, or upon receipt of confirmation from the recipient that the recipient received the email.
23.6. We may send You email or other electronic messages concerning Your Platform Account and the Platform from time to time.
24.1. Other rights: All rights not expressly granted to Us in these Terms are expressly reserved by Us.
24.2. Amendment: These Terms may be amended by Us at any time. If you are a Registered User, We will notify You of the amendments by providing notice in writing or via email (Amendment Notice) and if You do not agree to the amendments You can cancel Your subscription to the Platform Services if the amendment is detrimental to You by providing written notice to us within 7 days of your receipt of the Amendment Notice.
24.4. Severability: If any part of these Terms is deemed invalid by a court of competent jurisdiction, the remainder of these Terms shall remain enforceable.
24.5. Relationship: You and Us are independent contracting entities and these Terms do not create any relationship of partnership, joint venture, fiduciary, or employer and employee or otherwise.
24.6. Australian Consumer Law: The exclusions and limitations of liability set out in these Terms shall apply to the fullest extent permissible at law, but We do not exclude or limit liability which may not be excluded or limited by law. Without limiting the foregoing provisions, We do not exclude liability under the Australian Consumer Law which is prohibited from being excluded.
24.7. Force Majeure: Without limiting this Agreement, neither party will be liable for any delay in performance or breach of this Agreement that arises as a result of a Force Majeure Event.
24.8. Entire Agreement: Our Agreement, including these Terms,, and any information linked to from these Terms constitute the entire agreement between You and Us and to the extent possible by law, supersede all prior understandings, representations, arrangements and agreements between You and Us regarding its subject matter.
24.9. Jurisdiction: These Terms will be interpreted in accordance with the laws in force in NSW. You and Us irrevocably submit to the non-exclusive jurisdiction of the courts situated in NSW.
Appendix 1 - Services Order Form
|Customer Details||[Insert customer name] ABN [insert ABN] of [insert address]|
|Description of Services||Description of Services [Describe services required or attach any relevant documents]|
[[individual name] on [...............], the Customer]
[[individual name] on [...............], duly authorised for and on behalf of the Customer]: