- Your Data
10.1 You own all data, information or content you upload into the Platform (Your Data). We own any data or information output from the Platform using Your Data as input, including any information provided by us to you regarding any property listings (Output Data). Note that Output Data does not include the Analytics (as described below).
10.2 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data to:
(a) communicate with you (including to send you information we believe may be of interest to you);
(b) supply the Platform to you and otherwise perform our obligations under these Terms;
(c) diagnose problems with the Platform;
(d) enhance and otherwise modify the Platform;
(e) perform Analytics;
(f) develop other services, provided we de-identify Your Data; and
(g) as reasonably required to perform our obligations under these Terms.
10.3 You agree that you are solely responsible for all of Your Data that you make available on or through the Platform. You represent and warrant that:
(a) you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and
(b) neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
10.4 You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.
10.5 We do not endorse or approve, and are not responsible for, any of Your Data.
10.6You acknowledge and agree that the Platform and the integrity and accuracy of the Output Data is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Platform.
10.7 This clause will survive the termination or expiry of your Account.
- Warranties
11.1 You represent, warrant and agree that:
(a) you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into these Terms;
(c) you are not aware of any actual or potential conflict of interest in providing the Services, and the execution and performance by you of these Terms does not conflict with any law or any other instrument binding on you;
(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
(e) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
(f) in the event that you authorise our representative to sign a Contract of Sale regarding a Relevant Property, you warrant that such authorisation is pursuant to a properly executed and legally valid power of attorney;
(g) any information, advice, material, work and services (including the Services) provided by us under these Terms does not constitute legal, financial, merger, due diligence or risk management advice. You acknowledge that any data, information or advice provided by us to you in relation to the property market, properties identified and presented during the Term of these Terms and the Relevant Property (Market Data) is of a general nature only and does not take into account your individual circumstances, objectives, financial situation or needs. In addition, the provision of any such Market Data does not constitute financial or investment advice nor should it be relied upon as such;
(h) you acknowledge that you are responsible for your final purchasing decision and that we make no guarantees or warranties of any kind in relation to any Relevant Property. You accept full responsibility for satisfying yourself in relation to all aspects of the Relevant Property (including, without limitation, the building integrity, planning regulations which apply to the Relevant Property, the location of the Relevant Property, any other information of importance to you, the financial consequences of purchasing the Relevant Property and the suitability of any investment in the Relevant Property, in light of your own needs and circumstances). Under no circumstances will we be liable for any loss, damage, costs or compensation arising out of, or in connection with, your decision to purchase the Relevant Property; and
(i) you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms.
11.2 To the extent the Market Data or advice provided to you by us incorporates information and/or data from any third parties, we make no warranties in relation to such information and/or data and expressly disclaim all liability in relation to such (including, without limitation, in relation to its accuracy, completeness, suitability and reliability) and nothing in these Terms is intended to diminish the proprietary rights such third parties have in respect to their information and/or data.
- Australian Consumer Law
12.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform and the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
12.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform and the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
12.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
12.4 This clause will survive the termination or expiry of your Account.
- Liability
13.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) you agree to indemnify us for any Liability we incur due to your breach of the Acceptance and Platform Licence clause and the Intellectual Property clause of these Terms;
(b) neither Party will be liable for Consequential Loss;
(c) each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that Party to mitigate its losses; and
(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Platform and/or the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us during the term of your Account.
13.2 This clause will survive the termination or expiry of your Account.
- Termination
14.1 Cancellation of Accounts: You may request to cancel your Account at any time by notifying us via email. You may not cancel your Account until the expiry of the Minimum Period as set out in your Account. Your cancellation will take effect from the end of the Minimum Period. If you cancel your Account because we have changed the Account inclusions and the change has a substantial and adverse impact on you, or we have changed the Fees, then the termination of the Account will be immediate, and we will refund you for any Fees that you have paid upfront but have not been used on a pro-rata basis.
14.2 To the extent permitted by law, the Engagement Fee are non-refundable and non-cancellable once paid.
14.3 We may terminate your Account at any time by giving 30 days’ written notice to you (Termination for Convenience).
14.4 An Account will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within [10] Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
14.5 Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach.
14.6 Upon expiry or termination of your Account:
(a) we will remove your access to the Platform;
(b) you agree that other than where termination is due to our Termination for Convenience or our breach of these Terms, and to the maximum extent permitted by law, any payments made by you to us (including any Fees) are not refundable to you;
(c) where we terminate your Account for any reason other than a Termination for Convenience, you also agree to pay us our reasonable additional costs directly arising from such termination.
14.7 Where termination is due to our Termination for Convenience or our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.
14.8 Termination of an Account will not affect any rights or liabilities that a Party has accrued under these Terms.
14.9 This clause will survive the termination or expiry of your Account.
- Notice Regarding Apple
15.1 To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.
15.2 Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.
15.3 If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
15.4 Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to: (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
15.5 Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.
15.6 You agree to comply with any applicable third-party terms when using our mobile application.
15.7 Apple and Apple subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will 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.
15.8 You hereby represent and warrant that: (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
- General
16.1 Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
16.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
16.3 Confidentiality: You agree to keep strictly confidential all information provided by us during the course of the Term. You must not transmit details of properties or research reports or any information provided to any third parties without our express
written permission.
16.4 Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
16.5 Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
16.5 Force Majeure: To the maximum extent permitted by law, we shall have no Liability for any event or circumstance outside of our reasonable control.
16.7 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
16.8 Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
16.9 Publicity: You agree that we may advertise or publicise the fact that you are a user of our Platform and our Services, including on our website or in our promotional material.
16.10 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
16.11 Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.
- Definitions
17.1 Affiliate means any person or entity (including without limitation companies, partnerships, trusts, listed property trusts and unlisted property trusts) that, in relation to their property investments or business affairs, acts or could reasonably be expected to act in accordance with your directions or wishes, or in concert with you, including any associated entities as that term is defined in s50AAA of the Corporations Act 2001 (Cth);
17.2 Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
17.3 Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
17.4 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
17.5 Relevant Property means any investment property that is referred to you by us (including, without limitation, any properties presented to you in person, by telephone, by email, by letter, by fax or by text message), or any investment property that we have undertaken the Services for, in accordance with these Terms.
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