You agree to be bound by this Agreement and the Common Rules. References in this
electronic document to this "Agreement" include the Common Rules.
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
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.
2.1 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.
3.1 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
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.
5.1 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
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.
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).
(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.
Term and Termination
This Agreement continues until terminated.
(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.
9.1 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
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
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.
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.
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.
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.
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
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.
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
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.
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.