Conditions of Use
These terms and conditions apply to the listing of properties on Our Web Site for sale or rent.
1.1 This Agreement commences when We accept an Order Form from You requesting that Listings appear on Our Web Site (Commencement Date), and continues until terminated in accordance with clause 11.
2 Termination of previous agreements
2.1 Effective on the Commencement Date, We and You terminate any and all prior agreements and arrangements between us in connection with the matters set out in this Agreement.
3 Subscription fees
3.1 You must pay to Us, in the manner specified by Us from time to time, the “subscription fee” specified on the Order Form.
3.2 We may vary the subscription fee at any time on 30 days written notice to You. The varied fee will be payable on and from the end of the notice period.
4 Uploading of Listings
4.1 Subject to clause 4.4, You are responsible for uploading Listings onto Our Web Site.
4.2 You must remove a Listing, or where clause 4.4 applies request that we do so, upon a Status Change, in accordance with the Rules.
4.3 All Listings must contain the information required under the Rules.
4.4 Following a request by You, We may agree (in our absolute discretion) to upload Listings onto Our Web Site, and remove them upon a Status Change, on your behalf for a pre-agreed fee. We will use Our best endeavours to deliver these services within 2 Business Days of the request being made and required information being provided. We will not be obliged to deliver the services where:
- (1) the requested data is not made available to, or is not in the form required by, Us; or
- (2) You are in breach of this Agreement or any other agreement You have with Us.
4.5 You are responsible for all of Your Material (including any errors in it) and You must ensure that Your Material:
- (1) is accurate, including in relation to: descriptions; place, personal or other specific names; dates and times; figures; addresses; and phone and facsimile numbers and email addresses;
- (2) complies with all laws;
- (3) is not offensive, defamatory, misleading or deceptive, or uploaded to Our Web Site for a purpose not contemplated by this Agreement;
- (4) does not breach any third party’s Intellectual Property rights;
- (5) will not, by appearing on Our Web Site, expose Us to any liability; and
- (6) does not include any advertisements or promotions that We have not consented to.
4.6 We are not required to monitor or censor Your Material. However, We may remove Your Material from Our Web Site, or alter it, without notice to You, if We consider that it does not comply with this Agreement, or removal or alternation is otherwise necessary.
4.7 We may, in Our absolute discretion, provide technical support to assist with uploading and maintenance of Listings.
5 Listing Information
5.1 We (or Our nominee) will maintain a database of Listing Information, and may exploit for Our (or Our nominee’s) own benefit all Intellectual Property in the Listing Information.
5.2 You irrevocably and unconditionally:
- (1) assign to Us (or Our nominee) all Intellectual Property in the Listing Information; and
- (2) to the extent that the Intellectual Property in the Listing Information cannot be assigned, grant Us (or Our nominee) an exclusive, worldwide, royalty free, fully assignable perpetual licence to use (in any way, including modifying and recompiling the data), and sublicence others to use, the Listing Information, as and when the Listing Information is provided or made available to Us.
5.3 We grant you a non-assignable bare licence to:
- (1) use the Listing Information for Your real estate business (Business); and
- (2) provide the Listing Information to third parties for the purpose of advertising and operating your Business.
6 Your general obligations, warranties and acknowledgements
6.1 You must:
- (1) comply with all Our reasonable requests relating to this Agreement and the appearance of Your Material on Our Web Site;
- (2) ensure that any passwords, pass-codes or other identifier provided by Us to You relating to Our Web Site or this Agreement are kept secure and protected from unauthorised access or use;
- (3) comply with the Rules, which may be amended by Us on 7 days written notice to You;
- (4) not bring Our Web Site into disrepute; and
- (5) not promote any web site that directly competes with Our Web Site.
6.2 You warrant that You are:
- (1) (1) a licensed real estate agent as defined in section 4 of the Estate Agents Act 1980 (Vic); and
- (2) authorised by the owners of the properties referred to, and Intellectual Property contained, in the Listings (including any images) to publish or cause to be published the Listings on Our Web Site.
6.3 You are responsible for, and must pay the cost of, all telecommunications and internet access charges incurred when using Our Web Site, whether or not such access has been arranged by Us.
6.4 We do not guarantee the continuous or fault-free operation of Our Web Site. Systems or technological failure may impede or prevent access to all or any part of Our Web Site or Your Material, and You acknowledge that transmission of data over the internet can be subject to errors and delays, all of which we are not responsible for.
7 Our Liability
7.1 To the maximum extent permitted by law, and subject to clause 7.2, We exclude all statutory or implied conditions and warranties, representations, terms, undertakings and guarantees in respect of the services supplied under this Agreement.
7.2 To the extent permitted by law, liability under any condition or warranty which cannot legally be excluded is limited to (at Our election) supplying the services again, or paying the cost of having the services supplied again.
7.3 Other than as explicitly provided for by this Agreement, We have no liability (including liability in negligence) to You or any other person for any loss or damage (consequential or otherwise) however suffered or incurred in relation to:
- (1) the services provided, or not provided, under this Agreement;
- (2) any operational failure or unavailability of Our Web Site;
- (3) any contamination of, or defect in, Your Material introduced by virus, latent defect, human or other error, or otherwise;
- (4) Your reliance on any material contained on, or accessed through, Our Web Site; or
- (5) any delay or failure in loading Your Material onto Our Web Site.
7.4 In circumstances not covered by clauses 7.2 and 7.3, the maximum total amount which You may recover from Us (whether in contract, tort, under statute or otherwise) in respect of all loss in connection with this Agreement is the total amount paid by You to Us under this Agreement.
8.1 You indemnify Us, Our related entities (as defined in the Corporations Act 2001 (Cth)) and all of their employees, officers and agents (Our Group) against all:
- (1) losses and liabilities incurred by Our Group; and
- (2) costs actually payable by Our Group to their own legal representatives (whether or not under a costs agreement) and other expenses incurred by them in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal);
- in connection with any:
- (3) breach by You of Your obligations, or the warranties provided, under this Agreement;
- (4) act, omission, misconduct or negligence of You or Your employees, officers or agents in connection with this Agreement or Our Web Site;
- (5) claims brought by or on behalf of any third party relating to an act or omission by You or relating to Your Material; or
- (6) proceedings for infringement of any Intellectual Property rights in relation to Your Material.
9.1 Other than as may be required by law, You must not:
- (1) disclose any Confidential Information to any person other as permitted under this Agreement; and
- (2) after the end of this Agreement, use or disclose any part of the Confidential Information.
9.2 You must:
- (1) ensure that any person who receives or has access to Confidential Information observes all of Your obligations and undertakings contained in this clause 9; and
- (2) implement proper systems and procedures as may be necessary and as are required by Us to maintain the confidentiality of the Confidential Information.
10 Personal Information
- (1) acknowledge that, in the course of providing Our Listing services to You, We may collect, hold use and disclose Personal Information about:
- (a) You and/or your officers, employees, contractors and agents; and
- (b) Your customers or clients;
- (2) agree that We may use such Personal Information in order to provide Our Listing services to You and to otherwise do business with You;
- (3) acknowledge that if such Personal Information is not provided to Us, We may not be able to provide Our Listing services to You or otherwise do business with You;
- (4) agree that We may disclose such Personal Information to Our Related Bodies Corporate and to Our contractors, agents or third party technology service providers (some of who may be located overseas);
- (6) are responsible for notifying any third parties whose Personal Information You provide to Us of the matters contained in this clause.
10.2 You must:
- (1) comply with the Privacy Act as if You were an “organisation” as defined in that Act and without reference to any exemptions or exceptions in that Act;
- (2) ensure that the individuals to whom Personal Information relates have been made aware of Our identity and consented to the disclosure of their Personal Information:
- (a) from You to Us (and Our Related Entities); and
- (b) on Our Web Site; and
- (c) by Us to Our Related Entities and authorised service providers;
- (3) not collect, disclose, store, transfer or handle Personal Information except in accordance with the Privacy Act and this Agreement and take all reasonable steps to ensure that Personal Information is protected from misuse, loss, and unauthorised access, modification or disclosure;
- (4) take all reasonable steps to destroy or permanently de-identify Personal Information that is no longer needed for the purposes of this Agreement; and
- (5) ensure that access to Personal Information is limited to Your employees, officers or agents who are required to receive the information for the purposes of this Agreement.
11.1 We may terminate this Agreement on 30 days’ prior written notice to you, at any time and for any reason.
11.2 After the 12 month anniversary of the Commencement Date, You may terminate this Agreement on 90 days’ prior written notice to Us.
11.3 We may immediately terminate this Agreement on written notice to you if:
- (1) You commit a breach of this Agreement which We consider is not rectifiable;
- (2) You fail to rectify a breach of this Agreement which We consider is rectifiable within 7 days of receiving a written notice from Us specifying the breach and requiring You to rectify it;
- (3) an Adverse Event occurs; or
- (4) Your Material is defamatory, breaches any law or is false or misleading.
11.4 On termination of this Agreement:
- (1) We may immediately remove all of Your Material from Our Web Site; and
- (2) all moneys owed to us become immediately due and payable.
11.5 The end of this Agreement does not affect Your or Our pre-existing rights against each other in respect of any past breach.
12.1 In this clause 12, words or expressions which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires.
12.2 If a GST is imposed on any supply made by Us to You under or in accordance with this Agreement, the amount that You must pay for the supply increases by the amount of the GST.
12.3 A party’s right to payment under this agreement for any taxable supply is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
13.1 A notice, consent, information or request that must or may be given or made to a party under this Agreement is only given or made if it is:
- (1) delivered or posted to that party at the address referred to in the Order Form;
- (2) faxed to that party at the fax number referred to in the Order Form; or
- (3) e-mailed to that party at the e-mail address referred to in the Order Form.
13.2 However, if a party gives another party 3 Business Days written notice of a change of that, or a subsequent, address or fax number, a notice, consent, information or request is only given or made by that other party if it is delivered, posted, faxed or e-mailed to the latest address or number.
14 General provisions
14.1 We are not obliged to personally provide the services described in, or exercise Our rights under, this Agreement and may appoint third parties to act on Our behalf.
14.2 Each obligation, which expressly survives or is capable of surviving the end of the Agreement, continues in force despite the end of this Agreement for any reason.
14.3 We may set off against any payment due to You by Us, any unpaid debt You have to Us.
14.4 The obligations of either party (other than the obligation to pay money) is suspended during the time and to the extent that the party is prevented from complying with them by force majeure.
14.5 You cannot assign or otherwise deal with this Agreement except with the prior written consent of Us. We are not required to give consent or to justify the withholding of consent. We may assign or otherwise deal with this Agreement on written notice to You.
14.6 Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.
14.7 If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
14.8 This Agreement is the entire agreement and understanding between the parties on everything connected with its subject matter, and supersedes any prior agreement or understanding on anything connected with that subject matter.
14.9 This Agreement does not create a partnership, agency, fiduciary or any other relationship, except the relationship of contracting parties, between the parties. No party is liable for an act or omission of another party, except to the extent explicitly set out in this Agreement.
14.10 You have entered into this Agreement without relying on any representation by Us or our employees, agents or other person purporting to represent Us.
14.11 We may vary this Agreement at any time on written notice to You.
14.12 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
14.13 The law of Victoria governs this Agreement. The parties submit to the non–exclusive jurisdiction of the courts of Victoria and of the Commonwealth of Australia.
15 Definitions and interpretation
15.1 In this Agreement, the following expressions have the following meaning:
- (1) Adverse Event means the happening of any of the following:
- (a) anything that reasonably indicates that there is a significant risk that that You are or will become unable to pay You debts as they fall due. This includes execution or distress being levied against any of Your income or assets; a meeting of Your creditors being called or held; a floating charge becoming fixed, or a security becoming enforceable or being enforced in relation to any of Your assets or undertakings; a step being taken to make You bankrupt or to wind You up; the appointment of a controller or administrator as defined in section 9 of the Corporations Act 2001 (Cth); You entering into any type of arrangement with, or assignment for the benefit of, all or any class of Your creditors; and You being made subject to a deed of company arrangement;
- (b) a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to You or any of Your assets; or
- (c) You ceasing, or indicating that You are about to cease, carrying on business as a real estate agent;
- (2) Agreement means the Order Form and these terms and conditions, as varied from time to time;
- (3) Business Day means a day (except Saturday and Sunday) on which banks are open for general banking business in Victoria, Australia;
- (4) Confidential Information means:
- (a) the terms of this Agreement;
- (b) all business and financial information relating to Us or Our Related Bodies Corporate;
- (c) all trade secrets, processes, procedures, marketing strategies, market research, information concerning product development, know how, systems, computer programs, models, databases, any modifications to such things and all other information which, by its nature places or potentially places Us or Our Related Bodies Corporate at an advantage over our present or future business competitors;
- (d) any information of Ours which is marked “confidential”; and
- (e) any information that You know or ought to know is confidential, and any other information that would at law be considered secret or confidential information of Ours (or Our Related Bodies Corporate);
but does not include information which:
- (f) at the time of first disclosure by Us to You is already in the public domain; or
- (g) after disclosure by Us to You becomes part of the public domain otherwise than by disclosure in breach of the terms of this Agreement or other obligations of confidentiality owed to Us;
- (5) Intellectual Property means all intellectual and industrial property, including trade secrets or confidential information, copyright, moral rights, designs, know-how, processing formula, marketing, advertising and technical information, trade marks and patents, in each case whether or not existing at the date of this Agreement and whether or not registered or registrable, including all goodwill attached to or associated with them;
- (6) Listing Information means all data comprised in Your Material or otherwise provided to Us under this Agreement, including Status Changes;
- (7) Listings means data relating to properties that owners have engaged You to sell or rent, which are uploaded by You, or Us at Your request, to Our Web Site;
- (8) Order Form means the “REIV realestateVIEW.com.au Order Form” completed by You or Your representative;
- (9) Our Web Site means www.realestateview.com.au and any replacement website specified by Us;
- (10) Personal Information has the meaning given to it in the Privacy Act 1988 (Cth);
- (11) Privacy Act means the Privacy Act 1988 (Cth);
- (12) Related Bodies Corporate has the meaning given to it in the Corporations Act 2001 (Cth);
- (13) Rules means the Listing rules provided by Us to You as amended from time to time;
- (14) Status Change means the sale or rental of a property, or its removal from the market;
- (15) We, Us and Our are references to realestateVIEW.com.au Ltd ABN 34 088 369 395 of 405 Riversdale Road, Hawthorn East 3123; and;
- (16) You or Your is a reference to the estate agent listed in the Order Form; and
- (17) Your Material means Listings and any other information that You (or We, at Your request) upload to Our Web Site.
15.2 Reference to:
- (1) the singular includes the plural and the plural includes the singular;
- (2) a person includes a body corporate;
- (3) a party includes the party’s executors, administrators, successors and permitted assigns;
- (4) a thing includes the whole and each part of it separately;
- (5) a statute, regulation, code or other law or a provision of any of them includes:
- (a) any amendment or replacement of it; and
- (b) another regulation or other statutory instrument made under it, or made under it as amended or replaced; and
- (6) dollars means Australian dollars.
15.3 “Including” and similar expressions are not words of limitation.
15.4 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
15.5 Headings are for convenience only and do not form part of this Agreement or affect its interpretation.
15.6 A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
15.7 If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
15.8 If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly. An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly. A party which is a trustee is bound both personally and in its capacity as a trustee.