SPEAR On-line Agreement

SPEAR On-line Agreement

This is a legal agreement (Agreement) between You and the Department of Environment, Land, Water and Planning of the State of Victoria (the Department) and the relevant municipal council (Council) under the Local Government Act 1989. The Agreement applies to Your use of the computerised system for providing Surveying and Planning through Electronic Applications and Referrals (SPEAR). SPEAR has been developed and made available by the Department for use under the terms of this Agreement. The terms in this Agreement including the Common Rules constitute the entire agreement and understanding between You, the Department and the Relevant Council for Your access to and use of SPEAR. In consideration of the Department making access to SPEAR available to You, and the Council agreeing to:

(1) consider any Relevant Application,
(2) provide information through SPEAR, or
(3) to provide You with access to any information stored by the Council within SPEAR,

You agree to be bound by this Agreement and the Common Rules. References in this electronic document to this "Agreement" include the Common Rules.

Read this Agreement carefully as by clicking 'I Accept' and using or subsequently continuing to use SPEAR You agree to be bound by the terms and conditions of this Agreement. If You do not agree with the terms and conditions of this Agreement You should not accept them and should not use or continue to use SPEAR.

  1. Users

    1.1 This Agreement refers to Users and that means those people who agree to be bound by an agreement to use SPEAR and You will be a User under this Agreement by agreeing to be bound by it. Where this Agreement refers to a User it includes You.

    1.2 This Agreement sets out the basis of Your use of SPEAR and Your rights and obligations relating to other Users including the Council or any other body responsible for processing Relevant Applications.

  2. Common Rules

    2.1 You agree that the Common Rules apply to your access to and use of SPEAR. The Common Rules bind all Users of SPEAR between them and all other users and the Common Rules. To the extent of any inconsistency with the other provisions of this Agreement the Common Rules prevail for the purposes of interpretation. You are a Customer for the purposes of the Common Rules. Terms defined in the Common Rules and used in this Agreement have the same meaning as defined in the Common Rules.

    2.2 The Common Rules are those so identified on the SPEAR website, at www.spear.land.vic.gov.au/spear/links/common-rules.shtml , from time to time, which rules bind all Users of SPEAR.

  3. Definitions

    3.1 The terms defined below are used in this Agreement and have the following meaning:
    (1) Relevant Application is as defined in the Common Rules.
    (2) Relevant Purpose is as defined in the Common Rules.
    (3) Relevant Council means the Council which is the Responsible Authority with respect to the Relevant Application.
    (4) Responsible Authority has the same meaning as in the Planning and Environment Act 1987 (Vic).
    (5) Referral Authority has the same meaning as that in the Subdivision Act 1988 (Vic)
    (6) Authorised Purpose is as defined in the Common Rules

  4. Changes in Agreement

    4.1 The Department may amend this Agreement (including the Common Rules) by giving You not less than 60 days notice either by:
    (1) email to Your current email address nominated under clause 6; or
    (2) by posting the amendments on the SPEAR website and, as part of the SPEAR logon process, requesting Your agreement to those amendments.
    If You do not accept the amended Agreement Your access to SPEAR may be restricted, suspended or terminated by the Department. You accept the amended Common Rules unless, within the period of notice to You, You give to the Department not less that 30 days notice electing to terminate this Agreement.

  5. Access

    5.1 Limited LicenceUpon You accepting this Agreement and the provision by You of such information as is reasonably required by the Department, the Department grants to You a personal, non-exclusive and non-transferable licence to have access to and to use SPEAR on the terms and conditions in this Agreement. Such access to and use of SPEAR is limited to the Relevant Purposes (as defined in the Common Rules) and SPEAR must not be used for any other purposes. All rights in SPEAR are, and continue to be, owned by the Department.

    5.2 Licence ConditionsThe licence for You to have access to SPEAR is subject to the terms and conditions of this Agreement. If You do not comply with this Agreement Your Access to SPEAR may be suspended or terminated by the Department.

  6. Email Address

    6.1 You must notify the Department of Your current email address and as soon as practicable notify the Department of any change in Your email address. It is Your responsibility to maintain such email address and to regularly check for messages sent to that email address by SPEAR. Neither the Department nor any Council is responsible for any loss, liability, cost, damage or expense which arises out of, or results from, Your failure to notify the Department of Your current email address or to regularly check messages sent to such email address.

  7. Username and Password

    7.1 Issue and security
    (1) The Department or Your organisation's local SPEAR administrator will issue You (and each User) with:

    (a) a username (to be determined at the sole discretion of the Department); and

    (b) a password.

    (2) You agree:

    (a) to keep secure all components or parts of a username and password;

    (b) not to:

    (i) disclose the username and password to another person;

    (ii) permit any other person to use the username and password;

    (iii) permit any other person to see the entry or provision of any components or parts of the username or password; nor

    (iv) record any password other than in a secure manner;

    (c) to comply with any guidelines regarding the security of passwords published by the Department;
    (d) to notify the Department immediately if You become aware that a password associated with a username may have been lost or stolen, or on becoming aware or suspecting that another person knows a password associated with a username or has used a password associated with a username;
    (e) where clause 7.1(2)(d) applies, to cease using the username and associated password until such time as that password has been changed; and
    (f) to take all necessary steps to change the components or parts of the username and password immediately upon becoming aware of the circumstances in clause 7.1(2)(d).

    7.2 Restrictions
    (1) You must not:

    (a) allow any unauthorised person to have access to or to use SPEAR;

    (b) access SPEAR through any unauthorised means; or

    (c) use SPEAR in any manner which is harmful to, or detrimental to Users, the Department or any other person.

    (2) If You become aware of:

    (a) any unauthorised access to or use of SPEAR;

    (b) any method of gaining unauthorised access to SPEAR; or

    (c) any other breach of SPEAR security, You must immediately notify the Department.

    7.3 Suspension of Password
    The Department may cancel or suspend a username or password at any time without notice if the Department believes, on reasonable grounds, that a username or password is being misused or is no longer held on a secure basis.

  8. Term and Termination

    8.1 Term
    This Agreement continues until terminated.

    8.2 Termination
    (1) You may terminate this Agreement by requesting the Department, by email message, to cancel Your username. Upon requesting termination You must cease using SPEAR. This Agreement will terminate with respect to You upon the processing of Your request by the Department.
    (2) The Department may:

    (a) terminate this Agreement by notice to You by email; or

    (b) terminate or suspend Your access without notice if You fail to maintain Your current email address or fail to advise the Department of any change in Your email address.

  9. Information

    9.1 Reliance upon Permits as recorded in SPEAR
    Where You are notified, or receive information, through SPEAR that a planning permit has been issued, You must make further enquiries with the Relevant Council about any outstanding or up-dated requirements, conditions or plans relating to the permit. This is a matter upon which the Department recommends that professional advice should be obtained as there are issues, relevant to changes to the permit and the permitted use of land to be considered (including any existing use rights), that may require professional expertise and consideration.

    9.2 User Warranty as to accuracy
    You acknowledge and agree that upon every communication of documents or information to SPEAR that the document or information communicated is true and correct and contains all relevant information.

  10. Communications

    10.1 Security of Communications and risk
    Subject to any statutory and any express warranties provided in any other terms, the Department does not warrant the security of any information transmitted to or from the Department or any other person using SPEAR and such transmission is at the User's risk.

  11. Exclusion of loss

    To the extent permitted by law, the Department and the Relevant Council has no liability (including liability in negligence) to any User for any loss or damage, consequential or otherwise, suffered or incurred by that User in relation to the use of SPEAR including (without limitation) any loss or damage, consequential or otherwise, suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect or deficiency or any kind of or in SPEAR including any loss of access or loss of data.

  12. Liability for use of SPEAR

    12.1 Liability Limited
    The liability of the Department or any Relevant Council for:
    (1) any failures or delays in availability or functioning of SPEAR due to failure of any communication network (including any internet service provider) or hardware or software used by the Department;
    (2) any breakdown or interruption to any computer system; or
    (3) any error, corruption or loss of data which may be caused directly or indirectly through the use of SPEAR, is limited to the maximum extent permitted by law.

    12.2 Further Limitations
    To the extent permitted by law, the liability of the Department and the Relevant Council under any condition or warranty which cannot legally be excluded is limited to:
    (1) in the case of goods:

    (a) the replacement of the goods or the supply of equivalent goods;

    (b) the repair of the goods;

    (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

    (d) the payment of the cost of having the goods repaired; and

    (2) in the case of services:

    (a) supplying the services again; or

    (b) paying the cost of having the services supplied again.

  13. Applicant Authorised

    If You are the Applicant in any application under the Planning and Environment Act 1987 and You are not the owner of the relevant land, the application must include a declaration by You that the owner has been notified by You about the application as required under section 48 of the Act.

  14. SPEAR intellectual property

    14.1 You agree that where SPEAR creates documents or compiles information (whether in electronic or any other form) by drawing information from Relevant Applications or other information provided to the SPEAR system,
    the intellectual property rights in that document or compilation of the information are owned by the Department.

    14.2 Subject to this clause and to clause 12 of the Common Rules, nothing in this Agreement affects any pre-existing intellectual property rights in any document or information communicated to SPEAR.

    14.3 In providing information to the SPEAR system you acknowledge that the information may be used for Authorised Purposes and that You are authorised to give the information.

    14.4 You are bound by the information privacy principles and any applicable code of practice under the Information Privacy Act 2000(Vic) for the purpose of information provided to or generated by You as a result of the performance or use of the SPEAR system as if You were the Department.

    14.5 You acknowledge and agree that the information You derive from the SPEAR system shall only be used for Relevant Purposes.

  15. Responsible Authorities' use of information

    You acknowledge that Responsible Authorities and others use SPEAR and may rely upon information within SPEAR for their own purposes.

  16. Agreement with Owners Corporations

    16.1 Named Owners Corporation bound
    If application for access to SPEAR is made by a natural person on behalf of an incorporated body (named in the electronic application for access to SPEAR) any reference to "You" in this Agreement is a reference to that named owners corporation (Owners Corporation) and the Owners Corporation is a party to and is bound by this Agreement from the time of the grant of access to SPEAR.

    16.2 Representations and warranties
    The natural person making the application for access represents and warrants to the Department that:

    (1) he or she has the authority to enter into this Agreement on behalf of the Owners Corporation; and

    (2) all information provided in the application for access is true and correct.

    16.3 Administrator and appointment of Corporate Users
    (1) On the submission of the application for access under this clause, the person making the application on behalf of the Owners Corporation becomes the Administrator on behalf of the Owners Corporation named. The Administrator shall have authority to appoint users of SPEAR and to remove users of SPEAR on behalf of the Owners Corporation (Corporate Users). The Administrator may issue to Corporate Users a user ID and password for access to SPEAR where a Corporate User represents and is authorised by the Owners Corporation for that purpose. The Administrator shall issue user ID and password in accordance with the SPEAR User Manual issued by the Department.
    (2) The Owners Corporation, through the Administrator, is fully and solely responsible for the validation of rights of access relating to Corporate Users (including their identity and whether they are appropriately authorised) and shall bind the Owners Corporation in the appointment of Corporate Users. It is the sole responsibility of the Administrator and the Owners Corporation (and not the Department) to monitor access to SPEAR by Corporate Users and to grant or remove the right access to SPEAR of such users.

    16.4 Owners Corporation bound
    (1) The natural person named in the application for access to SPEAR shall bind the owners corporation in all Communications with SPEAR whether in the capacity of Administrator or otherwise. Corporate Users shall bind and represent the Owners Corporation in all Communications with SPEAR. In this clause Communication includes any notice, instruction, request, approval, certification, confirmation, information or document provided to or received from SPEAR.

    16.5 Notices to Owners Corporation
    Any notice or Communication given by the Department to the Administrator shall be notice or Communication to the Owners Corporation. If the Owners Corporation fails to have an Administrator appointed at any time, the Department may suspend or terminate all access to SPEAR under this Agreement without further notice.

  17. General

    17.1 Severability
    If any term or condition in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in full force and effect.

    17.2 Governing Law and Jurisdiction
    The law of the State of Victoria, Australia, governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and of the Commonwealth of Australia and agree that any lawsuit must be heard in those courts.


To view the Common Rules, please visit www.spear.land.vic.gov.au/spear/links/common-rules.shtml