Terms of Use (Australia)

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE, PRIVACY POLICY AND ALL TERMS INCORPORATED BY REFERENCE (TERMS OF USE). IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE, DO NOT ACCESS OR USE THIS WEBSITE.

These Terms of Use do not alter the terms or conditions of any other agreement you may have with Nearmap or its Related Parties or Subsidiaries for products, services or otherwise and those terms and conditions will take precedence where it conflicts with these terms. If you agreeing to these Terms of Use and are using the Website on behalf of an entity, you represent and warrant that you are authorised to accept these Terms of Use on such entity’s behalf, and that such entity will be responsible to Nearmap if you violate these Terms of Use. 

Definitions of capitalised words are set out in clause 8 of these Terms of Use.

1.        GENERAL TERMS AND CONDITIONS FOR ALL USERS

1.1      Ownership of Website The Website is owned and operated by Nearmap.

1.2      Modification of Terms of Use Nearmap may, at its sole discretion, vary or modify these Terms of Use without notice.  Any subsequent access to, or use by you of the Website will constitute an acceptance of those modifications.

1.3      Accessing the Website You may use the Website, and the information, writing, images and/or other works that you see, hear or otherwise experience on the Website solely for your non-commercial, personal purposes and/or to learn about Nearmap’s products and services, and solely in compliance with these Terms of Use. 

1.4      Governing Law All terms and conditions found on the Website, including those within these Terms of Use are governed by the laws of New South Wales.  By entering the Website you agree to submit to the exclusive jurisdiction of the New South Wales courts in the event of any dispute.

1.5      Severability If any of these Terms of Use are held to be invalid, unenforceable or illegal for any reason, the remaining Terms of Use will continue in full force.

2.        PROHIBITED USE OF WEBSITE

2.1      Limits on use of Website You agree that your use of the Website will not violate any law, contract, intellectual property or other third party right or constitute a tort, and that you are solely responsible for your conduct while using the Website.  You must not (without the prior written consent of Nearmap):

(a)       distribute, modify, transmit, reuse, report, or use the content of the Website for public or commercial purposes, including the text, images, audio and video;

(b)       provide a link to another URL;

(c)       upload content or other information to the Website;

(d)       do anything to damage, interfere or disrupt access to the Website or do anything which might impair its functionality;

(e)       use the Website in any way to send unsolicited (commercial or otherwise) e-mail or any material for marketing or publicity purposes, or any similar abuse of either;

(f)        publish, post, distribute, disseminate or otherwise transmit, defamatory, offensive, infringing, obscene, indecent or other unlawful or objectionable or confidential material or information;

(g)       make available, upload or distribute by any means any material or files that contain any viruses, bugs, corrupt data, “trojan horses”, “worms” or any other harmful software;

(h)       remove any content or information from the Website;

(i)        falsify the true ownership of material or information made available via the Website;

(j)        obtain or attempt to obtain unauthorised access, through whatever means, to the Website;

(k)       use the Website other than in accordance with these Terms of Use;

(l)        attempt any of the above acts or engage, encourage or permit another person to do any of the above acts;

(m)      share content or engage in behaviour that violates anyone’s Intellectual Property Rights; or

(n)       violate applicable law.

3.        INTELLECTUAL PROPERTY

3.1      Ownership Unless otherwise indicated, the Website and any No Charge Products which Nearmap may offer to you and all associated Intellectual Property Rights, data, information and software are owned by Nearmap and are protected by copyright, moral rights, trademark and other laws relating to the protection of intellectual property. Nearmap reserves all of its Intellectual Property Rights.

3.2      Trademarks The Nearmap trademarks and all associated Intellectual Property Rights are owned by Nearmap. Nothing in these Terms of Use confers upon you any rights to use or modify any of Nearmap’s trademarks.

4.        NO-CHARGE PRODUCTS

4.1      Licence Nearmap may offer certain products to you at no charge, including free accounts and trial use (No Charge Products). Subject to your compliance with these Terms of Use and the law, Nearmap grants to you a limited, non-exclusive, non-transferrable licence to use the No Charge Products subject to any additional terms that Nearmap specifies and only for the period designated by Nearmap (Licence).  You may only use the Licence for the purposes of determining if you wish to purchase a licence from Nearmap and at all times excludes any Commercial Purpose and Unlawful Purpose. Nearmap reserves the rights to terminate your Licence at any time and for any reason in its sole discretion, without liability to you.

4.2      Users The Licence is only to be used by you and/or specific individual(s) whom you have requested Nearmap provision access under the License (Authorised Users).

4.3      Acknowledge Nearmap source You and any Authorised Users must not remove or cause to be removed any Nearmap logo, watermark or other Nearmap attribution in any No Charge Products.

4.4      Password/ID Any password/ID issued by Nearmap to you and any Authorised Users are personal and confidential to that individual.  If Nearmap suspects that any password/ID is being used by a different user to the individual whom it was issued to, Nearmap may:

(a)       immediately cancel that password/ID; and/or

(b)       immediately cease your access to the No Charge Products.

4.5      Confidentiality You and any Authorised User must keep the Licence and account access details secure and confidential.  Unless otherwise authorised in writing by Nearmap, you must not share the Licence or Nearmap account access details with any person or third party other than (a) an Authorised User or (b) if required to do so by applicable law, administrative process or court order; provided, however, you will limit the disclosure to only that information that must be disclosed to comply with such law, process or order and will give Nearmap prompt prior notice of such compelled disclosure to the extent legally permitted, so that Nearmap may seek to protect such information. You must notify Nearmap immediately if you become aware that there is or has been an unauthorised use of your Licence and account access details, or any other security breach relating to your Nearmap account.

5.        Termination by Nearmap  

Termination Nearmap may, in its sole discretion prevent you from accessing the Website for any reason, including without limitation, if Nearmap believes that you have breached these Terms of Use, act in a manner that clearly shows that you do not intend to, or are unable to comply with these Terms of Use.

6.        THIRD PARTY PROVIDERS

6.1      Nearmap engages Third Party Providers in order to provide the No Charge Products. You agree that you will comply with all requirements and restrictions that Third Party Providers may impose on directly, or indirectly by imposition on Nearmap, in relation to their respective products and/or services, at the time of, or subsequent to, these Terms of Use. You acknowledge that provision of the No Charge Products are subject to, and dependent upon, adequate delivery of products and services by the Third Party Providers. In accordance with clause 6 of these Terms of Use, Nearmap’s liability is reduced to the extent that loss or damage of any kind is caused, or contributed to, by Third Party Providers. For your convenience, Nearmap has set out in this clause 6 links to the terms and conditions of these Third Party Providers with which you and any Authorised Users are required to comply. You further acknowledge that, by using the Licence and entering into these Terms of Use, you agree to comply with the respective terms and conditions of Third Party Providers, which currently include the Third Party Providers set out below. Third Party Providers and their terms of supply may change from time to time during your use of Licence.

(a)       Google

Nearmap engages Google to supply navigation and geo-location data, and related content. By entering into these Terms of Use, you agree to the Google Terms of Service as they apply to you. https://www.google.com/enterprise/earthmaps/legal/us/maps_purchase_agreement_apac.html

(b)       Hometrack

Nearmap engages Hometrack to supply certain real estate related data. By entering into these Terms of Use, you agree to the Hometrack Terms of Use (http://www.hometrack.com.au/terms-of-use) and End User Terms and Conditions (https://www.hometrack.com/au/end-user-terms-and-conditions) as they apply to you.    

(c)       Amazon Web Services (AWS)

Nearmap engages Amazon Web Service, Inc. to provide services (AWS Services) which enables delivery of the No Charge Products. By entering into these Terms of Use, you agree to comply with the AWS Customer Agreement (http://aws.amazon.com/agreement/) as it applies to you. Use of the No Charge Products are also subject to your compliance with the following AWS policies:

(i)    Privacy Policy
(http://aws.amazon.com/privacy/)

(ii)   Acceptable Use Policy
(http://aws.amazon.com/aup/)

(iii)  Terms of Use
(http://aws.amazon.com/terms/)

(iv)  Service Terms
(http://aws.amazon.com/serviceterms/)

(v)   Trademark Use Guideline
(http://aws.amazon.com/trademark-guidelines/);

(d)       NASA /NCAS

By entering into these Terms of Use, you agree to the following NASA/NCAS terms and conditions: (https://www.nearmap.com/Legal-Information/Copyright).

7.        WARRANTY AND LIABILITY

7.1      Exclusion of Warranties The Website and the No Charge Products are provided "as is", and Nearmap and its content providers, agents and affiliates exclude, to the fullest extent permitted by applicable law, any warranty, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, any warranties as to the currency or regularity of the updates of the No Charge Products, any warranties as to any files you download from the Website being free from virus or harmful code, and all conditions and warranties which would otherwise be implied into these Terms of Use whether by law, statute or otherwise. 

7.2      No Representations While Nearmap uses reasonable efforts to ensure the accuracy, correctness and reliability of the No Charge Products and the Website, Nearmap makes no representations or warranties as to the accuracy, correctness or reliability of any No Charge Products or content contained on the Website. The No Charge Products and the Website are subject to errors, omissions, inaccuracies and distortions and Nearmap will not be responsible for, or liable for any Claims made by or arising out of, any person or entity seeking to rely on any of the No Charge Products or the Website.

7.3      No Liability for Claims To the extent permitted by law, in no event will Nearmap, its content providers, agents or affiliates be liable for any Claims of any kind arising from or connected with the use of the Website or the No Charge Products, or the unavailability of the same, including but not limited to loss of use, loss of profits or loss of data, and direct, indirect, incidental, punitive and consequential damages and whether in contract, tort (including but not limited to negligence) or otherwise.  This exclusion applies, without limitation, to any Claims caused by or resulting from reliance by a user on any information obtained from Nearmap.

7.4      Aggregate Limit In no event will the aggregate liability of Nearmap, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the No Charge Products and Website exceed $100.

7.5      Third Party Providers You acknowledge that Nearmap relies on the services of Third Party Providers in order to supply the No Charge Products. Without limiting any of the above, for the avoidance of doubt, to the fullest extent permitted by applicable law, Nearmap will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by a third party service provider.

Indemnity You agree to indemnify and hold Nearmap and its directors, officer, employees, agents and subcontractors, harmless from and against any third party Claims, and must pay on demand all losses, expenses, damages and costs (including reasonable legal fees incurred on a solicitor/client basis) suffered or incurred by Nearmap, which arises out of your use of the Website and the No Charge Products.

8.        DEFINITIONS

In these Terms of Use:

Claim means any claim, cost (including legal costs on a solicitor and client basis), damages, debt, expense, tax, liability, loss, obligation, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind however calculated or caused, and whether direct or indirect, consequential, incidental or economic.

Commercial Purpose means to distribute, transfer, sell, sub-licence or pass possession of any No Charge Products (in whole or in part) for the purpose of direct commercial benefit or gain by you.

Corporations Act means the Corporations Act 2001 (Cth).

Intellectual Property Rights includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trademarks, patents, rights to protect confidential information and any similar rights.

Nearmap means Nearmap Australia Pty Ltd ABN 16 120 677 250.

Related Parties has the meaning given in the Corporations Act.

Subsidiaries has the meaning given in the Corporations Act.

Third Party Providers means third party providers of products and services to Nearmap.

Unlawful Purpose means any unlawful purpose, including but not limited to stalking, harassing or intimidating any person or engaging in misleading or deceptive conduct.

Website means all webpages and sub-sites available within the Nearmap.com domain http://www.nearmap.com.

You, your or you means the person or entity who or which is acquiring the right to use the Website under these Terms of Use.