DIY-BY-LAWS – TERMS OF USE

  1. Nature of Portal
    1. DIY By-laws is operated by David Sutherland Bannerman trading as Bannermans Lawyers of L7/2 Elizabeth Plaza North Sydney NSW 2060 (“Licensor”).
    2. DIY By-Laws enables approved persons to access, via an online portal (“Portal”), a suite of customisable strata by-law templates (“Suite”).
    3. These terms of use (“Terms”) set out the conditions on which you (“Licensee”) may access and use the Suite and Portal and use the documents produced as a result of your use of the Portal and Suite (“Product”). Access to and use of a specific Product is conditional on your payment of the licence fee specified for that purpose by the Licensor and your compliance with these Terms.
  2. Warranties and Acknowledgements
    1. The Licensee warrants that:
      1. All information provided by the Licensee to the Licensor is complete and accurate in all respects.
      2. The Licensee has reviewed the by-laws of the relevant strata scheme and made its own assessment of the suitability of the current by-laws and the by-laws proposed to be made by use of the Products and releases the Licensor from any liability in relation to those issues.
    2. The Licensee acknowledges and agrees that:
      1. The Licensor has agreed to provide only a licence to access and use the Portal and Suite and resulting Products.
      2. The Licensor may in its discretion cease operating the Portal.
      3. The Licensor is not providing legal services to the Licensee, including advice as the implications of using the Products, customising the Products for use in specific situations or updating the Products to address changes in the law or business conditions. Such services may be available on request, but would require further agreement and additional costs which would be disclosed in an accompanying costs disclosure document.
      4. In the course of the Licensee using the Portal, the Licensor may receive personal information in relation to the Licensee and others and the Licensee consents to the Licensor collecting, retaining, using and disclosing such information in accordance with the Licensor’s privacy policy (“Privacy Policy”), which is available to view through link from the Portal.
    3. The Licensee acknowledges and agrees that the Licensor does not warrant that the documents comprising the Suite reflect changes in the law after the date on which each document was created and that the Licensor has no liability to the Licensee in respect of any such changes.
    4. The Licensee acknowledges and agrees that the Products may not be suitable for use in specific circumstances without further customisation and that the Licensee is responsible for obtaining legal and other requisite advice before using any Products.
  3. Grant of Licence
    1. The Licensor grants the Licensee a non-exclusive license (“Licence”) to use the Portal, Suite and Products within New South Wales on the basis set out in this agreement. The Licence commences on satisfaction of all of the conditions set out in clause 2.4.
    2. The Licence is non-exclusive and the Licensor may grant such other licences in relation to the Portal and Suite as the Licensor in its discretion may determine.
    3. The rights granted to the Licensee under the Licence are personal to the Licensee and may not be assigned, sublicensed, encumbered or otherwise dealt with, provided that, where the Licensee is a lot owner in a strata scheme proposing the making of a by-law by that scheme, the Licensor consents to the scheme’s use of a Product generated by the Licensee for that purpose.
    4. The Licence is subject to and conditional on the Licensee satisfying each of the following conditions:
      1. The Licensee must confirm acceptance of these Terms by such means as the Licensor may require, which may include digital means forming part of the functionality of the Portal. However, the Licensee’s use of the Portal constitutes acceptance by the Licensee of these Terms.
      2. Before generating each Product, the Licensee must pay the licence fee specified by the Licensor for that purpose, by the means specified by the Licensor, which may include digital means forming part of the functionality of the Portal.
      3. If the Licence involves a taxable supply for GST purposes, unless the Licence Fee is expressed to be inclusive of GST, the Licensee must, by the due date for payment of the Licence Fee, pay to the Licensor an amount equal to the GST payable by the Licensor in relation to such taxable supply.
      4. The Licensee must not use the Portal, Suite or any Products other than for the following purpose (“Permitted Purpose”):
        1. use of the Portal and Suite for the purpose of generating Products for which the Licensee has paid the licence fees specified by the Licensor for that purpose.
        2. use of any Product for the purpose of creating one by-law. For the avoidance of doubt, a separate licence and licence fee is required for each by -law created by use a Product generated through the Portal.
  4. Licensee Obligations
    1. The Licensee must:
      1. Whenever reproducing any Product, include a clear notation that the Licensor is the copyright owner.
      2. Provide the Licensor with such information as the Licensor may reasonably request in relation to the Licensee’s use of the Products, including statistics as to the number and type of documents generated.
    2. The Licensee must not, other than as expressly permitted by these terms:
      1. Duplicate, modify, adapt, reverse engineer, decompile, disclose, publish or distribute any portion of the software comprising the Portal or assist any third party to do so.
      2. Duplicate, modify, adapt, disclose, publish or distribute any portion of the documents comprising the Suite or assist any third party to do so.
      3. Attempt to create any software, copyright materials or other intellectual property similar in nature or functionality to the whole or any part of the Portal and/or Suite.
      4. Impede or interfere with the operation of the Portal.
      5. Use the Products other than in accordance with any guidelines published by the Licensor, including without limitation any usage notes included in any of the materials comprising the Products. For the avoidance of doubt, the Licensor may from time to time, amend or replace any published guidelines or publish additional guidelines, by making such amended, replacement or additional guidelines available to view through the Portal.
      6. Use the Products in any manner that infringes any applicable laws, infringes the rights of any third party or in the opinion of the Licensor, formed on reasonable grounds, materially prejudices the value of or the Licensor’s rights in the Products.
  5. Confidentiality
    1. For the purposes of these Terms, “Confidential Information” means any information relating to the Licensor, the Portal, the Suite or the Products which the Licensor has advised is confidential or which ought reasonably be regarded as confidential.
    2. The Licensee:
      1. Must maintain strict confidentiality in relation to any Confidential Information in the possession or control of the Licensee, except as necessary for the purpose of making the by-law for which the Product was generated.
      2. Provide any third party with copies of any Products, except to the extent required for the purpose of the relevant strata scheme making the proposed by-law.
    3. The Licensee acknowledges and agrees that the Suite represents valuable commercial property of the Licensor and that distribution of any part of the Suite to any third party would cause the Licensor substantial commercial harm, for which damages may not be an adequate remedy and in addition to any other remedies which may be available to the Licensor, the Licensor may in the event of breach or threatened breach of these Terms by the Licensee, obtain injunctive relief, without the necessity of proving actual damages.
  6. Intellectual Property
    1. The Licensor will retain the copyright and all other intellectual property rights in the Portal, Suite and any Products and nothing in these Terms will be construed so as to give the Licensee any interest in the Portal, Suite or Products. The Licensee must not represent to any third party that the Licensee is or that the Licensor is not the copyright owner of the Portal, Suite or any Products.
    2. Ownership of any modifications or additions to any of the documents comprising the Suite made by the Licensee, whether in the course of generating any Products or subsequently, will vest in the Licensor and the Licensee must execute such documents as the Licensor may reasonably require to confirm that any such rights vests solely in the Licensor or if such rights fail to vest in the Licensor, to assign such rights to the Licensor.
    3. The Licensee must immediately notify the Licensor of any infringement of the Licensor’s copyright or other rights in the Portal, Suite or Products of which the Licensee becomes aware and at the Licensor’s cost, provide the Licensor with such assistance as the Licensor may reasonably request for the purpose of taking such enforcement action as the Licensor may consider appropriate in relation to the infringement.
  7. Liability & Indemnity
    1. Nothing contained in these Terms will be construed so as to exclude any rights conferred on the Licensee under the Australian Consumer Law (“Law”) under the Competition and Consumer Act 2010 (“Act”), except to the extent that such rights may be lawfully excluded.
    2. If the Licensee is a consumer (“Consumer”) for the purposes of Part 3.2 of the Law, the Licensor will comply with any consumer guarantees (“Consumer Guarantees”) which the Act provides apply to the Licence, but only to the extent which the Act so provides and provided that the Licensor’s liability is limited to the resupply of the relevant Product or an equivalent Product or the payment of the cost of having the relevant Product resupplied.
    3. If the Licensee is not a Consumer, then to the maximum extent permitted by law, the Licensee agrees to exercise its rights under the Licence at its own risk and releases the Licensor from any expenses liabilities or damages, including loss of profits and other consequential loss, whether arising under contract, tort, statute or otherwise, which the Licensor may have or may but for this clause have had to the Licensee, in relation to such exercise of rights. Without limitation of this provision, the Licensor will have no liability to the Licensee in relation to any of the following:
      1. Any implied warranties, including as to quality and suitability for purpose.
      2. Any defects in the Product.
      3. Any virus or harmful component in the Portal or any part of the Product generated through the Portal.
      4. Any unavailability of or interruption in the Portal.
      5. Any loss of data.
      6. Any loss of profits or other consequential loss.
    4. To the maximum extent permitted by law, the Licensee indemnifies the Licensor in relation to any actions, claims, demands, expenses, liabilities or damages, including legal costs of conducting proceedings and/or negotiating and implementing settlement agreements, incurred by the Licensor as a result of the Licensee’s breach of its obligations under these Terms or the Licensee’s exercise of its rights under the Licence, except to the extent that they relate to the Product infringing any third party’s intellectual property rights.
  8. Termination
    1. The Licensor may terminate the Licence, by written notice to that effect served on the Licensee, in any of the following circumstances:
      1. The Licensee enters into or purports or attempts to enter into a transaction involving any dealing with the Licensee’s rights under these Terms.
      2. The Licensee acts in a manner which in the opinion of the Licensor, formed on reasonable grounds, materially adversely affects the Licensor’s rights in the Portal, Suite and/or any Products.
      3. The Licensee breaches these Terms in a manner which cannot be rectified or fails to rectify a breach within seven days of the Licensor serving a written notice on the Licensee identifying the breach and requiring that the breach be rectified within such 7-day period.
    2. Following termination of the Licence:
      1. The Licensee must cease using the relevant Products.
      2. The Licensee must destroy or return to the Licensor any copies of the relevant Products in the possession or control of the Licensee.
      3. The Licensee will not be entitled to refund of any part of the licence fees paid.
      4. The remaining provisions of these Terms will remain in force.