Subscription Services Terms and Conditions
1.1 Estate Agents Co-operative Ltd (ABN 52 079 055 637) (“EAC”, “us”, “our” or “we”) maintains this website eac.com.au (including its subdomains) (this “Website”), the related websites (including but not limited to formsonline.com.au and realestateworld.com.au) (each, a “Related Website”), the content located at the domain names and subdomain names of this Website and the Related Websites and any and all associated software, application(s), media and electronic documentation made available by us that support and facilitate their operation (together, the “Platforms”) and administers the services offered through these Platforms (the “Services”) and our content uploaded to third party sites.
1.2 Information about how to subscribe to any of the Services via an order form advised by us from time to time on this Website (“Subscription Order”) and to use the Platforms generally forms part of these Red Square Subscription Services Terms & Conditions (“Terms & Conditions”). Please carefully read these Terms & Conditions. Each time you, as the party identified in a Subscription Order as subscribing to any of the Services (“Subscriber”, “you” or “your”), place a Subscription Order, the Subscription Order and these Terms & Conditions together constitute an agreement between you and us for the supply of the Services the subject of that Subscription Order (“Agreement”).
1.3 Each Subscription Order you place is subject to these Terms & Conditions, including the relevant Schedules, unless these Terms & Conditions are modified by an express, contrary intention stated by us on the relevant Subscription Order or otherwise agreed in writing by us. If you do not agree to these Terms & Conditions, you must not place a Subscription Order.
1.4 These Terms & Conditions include any terms set out in any additional forms, documents, materials or other information supplied by us to you from time to time in relation to a Subscription Order (“Additional Information”). These Terms & Conditions will prevail to the extent of any inconsistency between any Additional Information and these Terms & Conditions.
1.5 We may revise these Terms & Conditions at any time by updating them on this Website. Revisions will take immediate effect and may affect your ability to subscribe to the Services and to access and use all or part of the Platforms. As you are bound by the most current version of these Terms & Conditions each time you use the Platforms, you should periodically check these Terms & Conditions. Your subscription to the Services and/or use of the Platforms generally following the posting of any revisions to these Terms & Conditions by us constitutes acceptance of those revisions. We also reserve the right to apply any upgrade, enhancement, change or modification to the Services, the content on the Platforms, our content on third party sites and/or the Platforms generally at any time in our absolute discretion.
1.7 When you access and use a Platform or a third party site as part of your subscription to the Services, you accept and agree to be bound by any terms and conditions of use of that Platform or third party site (as applicable) (“Other Terms & Conditions”). You acknowledge that you have, in addition to these Terms & Conditions, read these Other Terms & Conditions and to the extent they apply or are incorporated by reference herein, you agree to be bound by them. These Terms & Conditions will prevail to the extent of any inconsistency between any Other Terms & Conditions and these Terms & Conditions in relation to the Agreement.
1.8 A reference to a “Schedule” refers to a schedule to these Terms & Conditions. A Schedule forms part of the Agreement to the extent that you subscribe to any of the Services particularised in that Schedule and a reference to these “Terms & Conditions” includes the Schedule(s) relevant to the Agreement. You must comply with the terms set out in the Schedule(s) applicable to the Agreement as operative terms of the Agreement. These Terms & Conditions will prevail to the extent of any inconsistency between any applicable Schedule and these Terms & Conditions. Capitalised terms used in a Schedule have the meaning given to those terms in these Terms & Conditions unless otherwise defined in the Schedule.
2. PLACING SUBSCRIPTION ORDERS
2.1 You must place a Subscription Order in order to subscribe to any of the Services. When you place a Subscription Order, you represent and warrant that:
2.1.1 you are an individual, partnership, corporation and/or other entity in Australia in a trade eligible to subscribe to the Services as stated on the Subscription Order (which may include, but is not limited to, real estate agents, banks, valuers, councils, government departments and/or private investors);
2.1.2 you are not an individual, partnership, corporation and/or other entity engaged in the business of providing services that are the same as or similar to the Services in Australia;
2.1.3 you have full legal capacity to accept and agree to be bound by these Terms & Conditions; and
2.1.4 if your employee or other person is subscribing on your behalf, that such employee or other person has full legal authority to bind you in this way.
2.2 All details requested for a Subscription Order must be set out in the manner required in the relevant Subscription Order or as otherwise advised by us in writing from time to time. Each Subscription Order must be submitted to us in the manner advised by us from time to time. Each Subscription Order is binding upon our receipt and acceptance of the Subscription Order and cannot be modified, altered or varied unless agreed by us in writing.
2.3 We reserve the right to reject a Subscription Order at any time in our absolute discretion. Without limitation, this includes if the Services are unavailable, if there is an error in the description or price of the requested Services as advertised on the Platforms, if there is an error in your Subscription Order, or if we know or suspect that the Subscription Order is being made by or on behalf of any person or entity whose previous Subscription Order was rejected, whose access to and/or use of this Website has been suspended or terminated for breach of these Terms & Conditions, or who has been suspended or terminated from a Platform for breach of its Other Terms & Conditions, or for vexatious, illegal, or inappropriate behaviour. Whilst we try to ensure that all details, descriptions and prices appearing on the Platforms are accurate, errors may occur. We accept no responsibility for errors occurring on the Platforms. Subject to condition 15 of these Terms & Conditions, we also accept no responsibility for any Services or content that is unavailable on the Platforms or our content on third party sites.
2.4 If we reject your Subscription Order, we will endeavour to notify you by email of our rejection at the time you place the Subscription Order or within a reasonable time thereafter and give you the option of reconfirming your Subscription Order, changing your Subscription Order or cancelling your Subscription Order. If we are unable to contact you, we will treat the Subscription Order as cancelled. If your Subscription Order is cancelled and you have already paid any Charges for the Services the subject of that Subscription Order, you will receive a full refund of those Charges.
2.5 We also reserve the right to request you produce (within the requested time) appropriate identification or other documentation (to our satisfaction, in our absolute discretion) in order to confirm your identity and eligibility to be a Subscriber, and any information submitted by you in submitting a Subscription Order, before accepting your Subscription Order. If we do not receive the requested documentation or your details have not been verified or validated to our satisfaction within the time requested, your Subscription Order will be invalid. We will only confirm a Subscription Order following any Subscriber validation and verification that we require in our absolute discretion.
3. REGISTRATION OF SUBSCRIPTION ACCOUNT
3.1 Once we have processed and accepted your first Subscription Order, we will issue you with a user ID and password, in your name as the Subscriber of the Services set out in that Subscription Order, for your account on this Website. You can then subscribe to any further Services by placing subsequent Subscription Orders using the supplied user ID and password for your account on this Website. Depending on your subscription, we may also issue individual user ID(s) and password(s) for your employee(s) and/or such other person(s) that we grant access to and who may use the Services to which you are subscribed under your account. You (and any such other individuals, if applicable) must use your (or their, as applicable) user ID(s) and password(s) to log-in to access and utilise the Services.
3.2 Unless agreed in writing by EAC, you are only able to register and maintain one (1) account on this Website and the account must be in your own name. You are able to manage your account via this Website, including changing any of the details provided. All information provided by you in a Subscription Order and registered on your account on this Website must be and remain current, correct and complete. You must immediately notify us in writing of any changes to your details.
3.3 You are responsible for maintaining the strict confidentiality of your user ID(s) and password(s) and for any activity under your account. It is your sole responsibility to ensure that you log-out at the end of each session, to control the dissemination and use of your user ID(s) and password(s), to control access to and use of your account and to give written notice to us when you desire to cancel your account and/or terminate any Services. You must not use another subscriber’s account without their permission. You agree to immediately notify us of any unauthorised use of your user ID(s) and password(s) or any other breach of security. You acknowledge and agree that we shall not be responsible or liable for any loss, damage, liability, charge, expense or cost (including all reasonable legal and other professional costs on a full indemnity basis) of any nature or kind (“Losses”) that you suffer arising from your failure to comply with this condition.
4. SUPPLY OF SUBSCRIPTION SERVICES
4.1 The Services the subject of the Agreement are those Services selected by you on your corresponding Subscription Order accepted by us. We will supply the selected Services in accordance with the Agreement. Depending on the Services you select, the following Schedule(s) will apply to the Agreement and must be read together with these Terms & Conditions:
4.1.1 Red Square Services – Schedule 1;
4.1.2 realestateworld.com.au Services – Schedule 2;
4.1.3 Website Design and Website and Email Hosting Services – Schedule 3;
4.1.4 EAC Video Marketing Services Hardware – Schedule 4.
5. PAYMENT OF SUBSCRIPTION CHARGES
5.1 The amounts payable by you for the Services you select on a Subscription Order are set out in that Subscription Order or as otherwise advised by us in writing (“Charges”). We reserve the right to change the Charges after you enter into the Agreement with us for those Services at the end of the term of the Agreement and will notify you of such change in the Charges when we invite you to enter into a further term.
5.2 You must pay all Charges in the manner set out in the relevant Subscription Order or as otherwise advised by us in writing from time to time. If no manner for payment is stated, the payment must be made by direct debit or credit card. We reserve the right to charge a credit card surcharge with the current minimum surcharge being one percent (1%) for Visa and MasterCard (including GST) and one and a half percent (1.5%) for American Express (including GST), subject to increases in the surcharges that we may charge.
5.3 When you place a Subscription Order, you undertake that you are an authorised user of the card or account (as applicable) nominated on the Subscription Order to pay the Charges, that the card or account (as applicable) details provided are current, correct and complete and that your nominated card or account (as applicable) will cover the full amount of the Charges. You must not pay, or attempt to pay, any Charges through any fraudulent or unlawful means. Upon receiving your Subscription Order, we may carry out a standard pre-authorisation check of your nominated card or account (as applicable) to verify the details provided and to ensure there are sufficient funds to fulfil the transaction. The relevant Services may not be provided until this pre-authorisation check has been completed.
5.4 If your Subscription Order is accepted by us, you authorise us to debit the amount that is payable for the Services selected on that Subscription Order from your nominated card or account (as applicable) in order to pay the Charges. You must pay all Charges in full strictly within the timeframe set out in the relevant Subscription Order or as otherwise advised by us in writing from time to time. If no timeframe for payment is stated, the payment must be received by us no later than thirty (30) days from the date of the corresponding tax invoice for those Services. We allow an early payment discount of one percent (1%) to active member shareholders of EAC only, provided that we receive payment in full within fifteen (15) days from the date of the corresponding tax invoice for those Services.
5.5 If you fail to pay any Charges or we are unable to successfully process your payment of any Charges within the timeframe required (as applicable), we reserve the right to charge a late payment fee calculated at a rate of ten percent (10%) per annum but no less than $10.00 per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. We also reserve the right to withdraw credit facilities (where applicable) at any time and only provide the Services on a cash-on-delivery basis thereafter. You may also be liable to pay interest on any amount outstanding at the rate of two percent (2%) over the base rate for $100,000.00 + overdrafts quoted by National Australia Bank in Sydney on the date the payment becomes due and you may also be responsible for all reasonable expenses incurred by us as a result of such late payment (including but not limited to costs incurred by us to recover any unpaid amounts). Without limiting our rights, in the event you fail to pay any Charges within the timeframe and in the manner required, we reserve the right to suspend performance of our obligations under the Agreement (including but not limited to suspending your subscription to the Services and/or your use of all or part of the Platforms) or terminate the Agreement.
6.1 Words or expressions used in this condition which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this condition. You shall pay all taxes, duties and other government charges payable or assessed in connection with a Subscription Order whether applying as at the date of the Subscription Order or in the future, including without limitation goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income or the income of our related parties. If GST has application to any supply made by a party under a Subscription Order, then the party making that supply may, in addition to any other amount or consideration expressed as payable in that Subscription Order, recover from the other party an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by that other party for the supply by the prevailing GST rate. Unless GST is expressly included, the consideration expressed to be payable under the Subscription Order for any supply made under or in connection with an applicable Subscription Order does not include GST.
7. SUBMISSION OF SUBSCRIBER MATERIAL
7.1 Any material or content, including without limitation, information, data, literary works (including compilations of information, text, data, scripts, interactive features, applications, files, software and computer programs), dramatic works, musical works, artistic works (including drawings, paintings, computer generated graphics, tags, designs and photographs), sound recordings, cinematograph films (including video games) and any other material of a nature or type that can be uploaded to or generated on any of the Platforms via the Internet or any other technology (“Content”), which is provided to us or uploaded to any of the Platforms by you or at your direction (“Subscriber Material”), must be in the manner and format required by us.
7.2 If you fail to provide Subscriber Material in the manner and/or format required by us, we may in our absolute discretion reject the Subscriber Material and/or refuse to publish the Content to which the Subscriber Material relates on the relevant Platform(s) without any liability to you. Any such rejection or refusal to publish by us will be deemed to constitute a rejection of the relevant Subscriber Material but does not constitute a breach of the Agreement or otherwise entitle you to any legal remedy.
7.3 You agree that we may, in our absolute discretion and without notice to you, remove any Content generated by you (including Subscriber Material) from the Platforms that we reasonably believe to be in breach of:
7.3.1 these Terms & Conditions;
7.3.2 any applicable laws or requirements or directions of relevant regulators;
7.3.3 any industry codes of conduct or practice that may be applicable to you or your business activities and includes any industry codes of conduct that are prescribed by any laws or by virtue of your membership of an industry body or professional association (or similar), including but not limited to the codes administered by the Advertising Standards Bureau, the advertising self-regulation codes of practice prescribed and promoted by the Australian Association of National Subscribers and any codes of practice amending or superseding these codes (“Industry Codes”); or
7.3.4 any present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise (“Intellectual Property Rights”) of any third party, or otherwise contains a trade mark, trade name, company name, product name or brand name belonging to or claimed by a third party.
7.4 If we receive any notice, request, direction or instruction sent by a regulator to us in respect of Subscriber Material and/or a listing, advertisement or campaign generated by you on the Platform(s) (“Notification”) in respect of any Content generated by you on the Platform(s), and the Notification requires a response or action from us, we may, without any liability to you, take any steps necessary in order to respond or comply with the Notification (to the extent we are legally authorised and obliged to do so) to ensure compliance with any relevant regulator requirements and/or laws (as applicable) and we may take these steps at any time and without further notice to you.
8. EAC MATERIAL
8.1 All right, title and interest in all Intellectual Property Rights in and relating to our brands, logos, images, buttons, codes, layout, text, content, products and services as displayed on the Platforms and anywhere else by us (including on third party sites) (“Brand Features”), the Services and the media and property (in draft or final form) and material purchased, prepared, created, developed or acquired by us (including material acquired by us from a sub-contractor or third party) (“EAC Material”), including the collective industry experience, information or know how gained and owned by us through the conduct of its business by its owners, employees and contractors (whether written or unwritten) including but not limited to our systems, methods, technologies and affairs; financial approaches, strategies, directions, concepts, plans; research, development, operational, legal, marketing or accounting information, concepts plans, strategies, directions or systems; technology, inventions, discoveries, improvements, processes, formulae, techniques, understandings & insights, manuals, instructions, source & object codes for computer software; supplier information; and proprietary computer software and systems (“Know How”), will remain or be vested in us and/or our licensors and may not be used by you except as permitted in these Terms & Conditions. Nothing in these Terms & Conditions will be taken to constitute a transfer, assignment or grant of any ownership rights in the Brand Features, the Services or the EAC Material including Know How.
8.2 During the term of the Agreement, we grant you, on a case-by-case basis and to the extent required, a limited, personal, revocable, non-exclusive, non-transferrable and non-assignable licence to access and use the Brand Features, the Services and the EAC Material at a single site solely for the purpose, and to the extent necessary, to enable you to use the Platforms and obtain the benefit of the Services in accordance with the Agreement. The rights granted under the Agreement are restricted to your use only. You may not copy or distribute the Brand Features, the Services or the EAC Material except to the extent that copying is necessary solely for backup purposes. You must not permit simultaneous use of the Platforms by more than the allowed number of users, use the Platforms as a means to transfer data to another computer or use the Platforms in a manner inconsistent with the Agreement or the Other Terms & Conditions of the Platforms.
9. SUBSCRIBER ACKNOWLEDGEMENTS
9.1 You acknowledge and agree that:
9.1.1 by subscribing to any of the Services and/or using the Platforms generally, you grant to us an irrevocable, worldwide, perpetual, royalty-free licence to commercialise, copy, licence to other persons, use and adapt for any purpose all Subscriber Material or other material generated by you through your use of the Services and/or the Platforms;
9.1.2 we are under no obligation to monitor or censor Content uploaded by you to the Platforms but may do so at any time;
9.1.3 we are not responsible for any errors or omissions in any Subscriber Material or any other Content generated by you through your use of the Services and/or the Platforms;
9.1.4 you are responsible for and must pay the cost of all telecommunications and Internet access and data charges incurred when using the Services and the Platforms; and
9.1.5 you are responsible for the security and integrity of any Subscriber Material supplied to us and for ensuring that you have secure back-up copies of all Subscriber Material.
10. SUBSCRIBER OBLIGATIONS
10.1 Acceptable Use. Without limiting any other provision of these Terms & Conditions, you must:
10.1.1 only use a Platform for the bona fide purpose(s) of the Platform (“Permitted Purpose”);
10.1.2 only use a Platform in accordance with the Agreement or as otherwise permitted by the Platform’s Other Terms & Conditions;
10.1.3 only use a Platform in a commercially responsible manner and in accordance with all applicable laws, the requirements and directions of relevant regulators and applicable Industry Codes;
10.1.4 comply with all directions, instructions and/or requests issued by us in respect of your subscription to the Services and/or your use of a Platform, including but not limited to submission and management of Subscriber Material; and
10.1.5 not make, arrange or authorise any reference to us, the Services or any Platform in any media, material or document (including but not limited to promotional or merchandising material) without first obtaining our prior written consent, unless you are using a direct output from the Services (including but not limited to valuations that we provide as a direct product of the Services) or as otherwise permitted by the Platform’s Other Terms & Conditions.
10.2 Prohibited Use. Without limiting any other provision of these Terms & Conditions, you must not:
10.2.1 use a Platform for any purpose other than its Permitted Purpose, including but not limited to the prohibited uses set out in these Terms & Conditions;
10.2.2 upload or otherwise submit any Subscriber Material or generate any Content on the Platforms that is not in accordance with these Terms & Conditions and/or any other written instruction, direction or request issued by us;
10.2.3 re-sell, assign or transfer your subscription to any third party at any time;
10.2.4 except as expressly permitted by us for the purpose of the Services, allow any third party that is not your employee or officer to access and use any Platform or the Services; or
10.2.5 use your subscription to advertise or promote your business in any way other than specifically stated and permitted by us in these Terms & Conditions or otherwise in writing.
11. USE OF THE PLATFORMS GENERALLY
11.1 Subject to your compliance with the Agreement, you are granted a limited, non-exclusive, revocable and non-transferrable licence to access and use the EAC Material and/or the Platforms generally required for you to obtain the benefit of the Services the subject of the corresponding Subscription Order. Any costs associated with accessing and using the EAC Material and/or the Platforms generally remains your responsibility and is dependent on the service provider used. You are responsible for ensuring that your computer system or mobile device (as applicable) is compatible with the EAC Material and/or Platforms and meets all relevant technical specifications necessary to obtain the benefit of the EAC Material and/or use of the Platforms. The Platforms are data specific to New South Wales, Australia. We make no representation that the EAC Material and/or Platforms are appropriate or available for use in all locations.
11.2 The Platforms may contain links to other sites not maintained by us (“Linked Sites”). We are not responsible for the content of any Linked Sites, whether or not we are affiliated with the Linked Sites. We do not in any way endorse any Linked Sites and are not responsible for the quality or delivery of any products or services offered, accessed or advertised by such Linked Sites. To the extent that these Linked Sites collect personal information or contributions from you, we shall bear no responsibility or liability for the manner in which such information or postings are used or exploited. The Linked Sites are for your convenience only and you agree to access them at your own risk.
11.3 The Platforms may also utilise social network or share functionality and may contain social media links, applications or features (including but not limited to Facebook, Twitter, Google+, LinkedIn, YouTube and blogs). Your use of any social media platforms is subject to the particular social media platform’s prevailing terms and conditions of use. By using any social media applications or features on the Platforms, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You also acknowledge and consent to the Platforms accessing information you may have shared with the particular social media platform and contacting you via the social media platform or via the information you have shared (for example, sending an email directly to you to the email address provided to the social media platform), in accordance with the permissions you have granted the Platforms via the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on the Platforms. The Platforms are in no way sponsored, endorsed or administered by, or associated with, any social media platform.
12. TERM AND TERMINATION
12.1 The Agreement shall commence on the date of the corresponding Subscription Order and shall continue for the term set out in that Subscription Order. If no term is specified in the Subscription Order, the Agreement shall remain in force until terminated pursuant to this Agreement. If a Subscription Order states that you are entitled to a seven (7) day evaluation period, these Terms & Conditions shall apply to the evaluation period for its duration and you shall pay us the evaluation period subscription Charges (if any) set out on the relevant Subscription Order in respect of the evaluation period.
12.2 If the term of the Agreement is an annual contract, unless and until the Agreement expires or is terminated in accordance with these Terms & Conditions, we will require you to confirm your acceptance of the Agreement in advance of every calendar year in the manner required by us, by no later than thirty (30) days prior to the conclusion of the present year during the term of the Agreement. EAC will provide advance notice of the new annual term and Charges for acceptance. EAC will also provide notice of a month to month subscription option and the Charges for this option. If we do not receive your confirmation of acceptance of either option in the required manner and time, the term of this Agreement will automatically hold over month to month and the Charges will automatically increase to the month to month subscription Charge notified. You may then terminate the month to month subscription option on 1 months’ written notice to us and the term of the Agreement will end at the end of the subsequent month billing cycle from the month in which notice was given (for example if you give notice in May then the Agreement will end on 30 June). You must continue to pay all applicable Charges during the notice and up to the end of the term of the Agreement.
12.3 You may terminate the Agreement for any reason upon written notice to us. If the term of the Agreement is annual or any other stated term (paid monthly or otherwise) and if for whatever reason the Agreement is terminated prior to expiry of its term, payment of the Charges for the balance of the term of the Agreement will become due and payable immediately.
12.4 We may terminate the Agreement for any reason by providing you with seven (7) days’ prior written notice. We also reserve the right to suspend or terminate the Platforms (or any aspect of the Platforms) or our content on third party sites at any time without prior notice. We will not be liable for the suspension or termination of the Platforms or our content on third party sites on any account whatsoever.
12.5 We may terminate the Agreement immediately upon written notice to you if you breach the Agreement, any of the warranties or indemnities given by you in these Terms & Conditions or if you fail to pay any Charges in the manner required. In addition to our termination rights, we may suspend the Agreement pending rectification of any breach of the Agreement by you. Where your breach is a failure to pay all Charges under the Agreement and/or the charges under any other agreement that you may have with us, the Services under the Agreement and/or the services under any such other agreement may be suspended on the 15th day after the due date for payment. We reserve the right to recover from you, in addition to the outstanding amount, any reasonable costs incurred by us in collecting the outstanding amount.
12.6 We reserve the right to monitor all subscription activity. If your subscription shows signs of fraud, abuse or suspicious activity, we may close or freeze your subscription immediately and you may stop receiving the Services and/or be unable to access and use all or part of the Platforms. We may suspend or terminate the Agreement immediately upon written notice to you if we believe you have abused any privilege accorded to you as a Subscriber to the Services and/or user of the Platforms, supplied misleading information or made any misrepresentations to us in connection with the Services and/or the Platforms, tampered with the Services, the EAC Material and/or the Platforms in any way or engaged in any unlawful or other improper misconduct calculated to jeopardise the proper administration of the Services, the EAC Material and/or the Platforms. Our legal rights to recover damages or other compensation from you are reserved.
12.7 The use of any automated software or any other mechanical or electronic means allowing you to automatically subscribe to the Services, the EAC Material and/or the Platforms is prohibited. You must not decompile, reverse engineer, disassemble, convert or authorise any third party to decompile, reverse engineer, disassemble or otherwise convert, the Services, the EAC Material and/or the Platforms to a human perceivable form, distribute or republish the Services, the EAC Material and/or the Platforms in any way (except as expressly permitted by us for the purpose of the Services), or resell, rent, lease, lend or transfer the Services, the EAC Material and/or the Platforms to any third party. You must not alter or modify any disabling mechanism that may be resident on the Services, the EAC Material and/or the Platforms. We reserve the right to suspend or terminate the Agreement if we believe you are engaging in such activity.
12.8 Should the Agreement expire or be suspended or terminated for whatever reason in accordance with these Terms & Conditions, you will have no further access to and use of the Services and/or all or part of the Platforms the subject of the Agreement for the duration of the suspension or at all in the event of termination or expiry. You agree that we shall have no liability or responsibility to you for any such suspension or termination.
12.9 You acknowledge that in the event of expiration or termination of the Agreement for any reason, you must remove all copies of the EAC Material and all of its components from all of your systems and destroy all related material received during the course of the Services, if any. You also agree that, to the fullest extent permitted by law, any Charges already paid are not refundable and you will be required to pay all Charges outstanding at the effective date of any termination or expiration of the Agreement (and any applicable early termination charges and/or reasonable costs incurred by us in collecting the outstanding amounts).
12.10 Termination or expiration of the Agreement will not affect your payment obligations of the Charges or any other accrued rights or liabilities of either party or any provision of the Agreement that is expressly or by implication intended to continue in force after expiration or termination, including but not limited to the warranties and indemnities provided by you under these Terms & Conditions, which will survive and remain in full force and effect in respect of the performance of all your relevant obligations.
13. SUBSCRIBER WARRANTIES
13.1 You warrant and represent that:
13.1.1 you have full power and authority to place a Subscription Order and perform and observe all of the terms and conditions set out in the Agreement;
13.1.2 each Subscription Order has been duly executed and submitted by you and constitutes a legal and binding agreement between you and us;
13.1.3 our use of any Subscriber Material or any logo, trade mark or indicia of the Subscriber (“Subscriber Brand”) in accordance with these Terms & Conditions will not infringe the rights (including Intellectual Property Rights) of any third party; and
13.1.4 the Subscriber Material and Subscriber Brand will not contain:
18.104.22.168 any information or subject matter that is illegal or contrary to any applicable laws, the requirements or directions of relevant regulators or any Industry Codes;
22.214.171.124 any information or subject matter that is false, misleading or deceptive or likely to mislead or deceive, indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, libellous, offensive or objectionable;
126.96.36.199 any Content (including but not limited to photographs or film clips) of any property or individuals where required consents (whether from the relevant property owners and/or the individuals or their parents or legal guardians, as applicable) have not been obtained;
188.8.131.52 any viruses, Trojans or other malicious code;
184.108.40.206 any misrepresentations or suggestion that any entity has the approval or sponsorship of any other entity which it does not have; or
220.127.116.11 any Content that relates to financial matters and would require us to hold any particular financial services licence.
13.2 You also warrant and represent to us that each website represented by any website address (URL) shown or embedded in any Subscriber Material:
13.2.1 is controlled and operated by you, your independent contractor or your client;
13.2.2 will be functional and accessible at all times;
13.2.3 will at all times operate in compliance with all applicable laws, applicable Industry Codes and the requirements or directions of relevant regulators; and
13.2.4 is suitable in all respects including the type of subject matter to be linked to and from the relevant Platform(s) containing the relevant advertisement (or simply referred to on the relevant Platform(s) containing the relevant advertisement, as applicable).
13.3 We may test all relevant URLs, and may remove any URL included in any Content uploaded to the Platforms by you which, in our absolute discretion, fails to comply with the any of the above requirements in condition 13.2 of these Terms & Conditions or any other provision of these Terms & Conditions at any time.
14. SUBSCRIBER INDEMNITIES
14.1 You agree to indemnify, and must defend and hold harmless, us and our related corporations, including our personnel, servants and agents, from and against any Losses arising from:
14.1.1 your breach of any provision of the Agreement, including these Terms & Conditions and your warranties in condition 13 of these Terms & Conditions;
14.1.2 any third party claim arising directly or indirectly from your breach of any of your obligations under the Agreement;
14.1.3 any negligent, wilful, fraudulent, dishonest or otherwise wrongful act or omission by you or your personnel;
14.1.4 any breach by you of any applicable laws, the requirements or directions of relevant regulators or Industry Codes;
14.1.5 any claim by any third party (including individuals, legal entities and governmental departments or agencies) arising directly or indirectly as a result of us fulfilling our obligations in accordance with the Agreement;
14.1.6 the death of, or personal injury to, any person, to the extent caused by any act or omission of any of your members or personnel;
14.1.7 any damage to, or loss or destruction of, any real or tangible personal property, to the extent caused by any act or omission of any of your members or personnel;
14.1.8 any breach by your of your confidentiality obligations; or
14.1.9 any claim or allegation that the Subscriber Material or the Subscriber Brand infringes a third party’s Intellectual Property Rights or constitutes an unlawful disclosure or misuse or misappropriation of another party’s trade secret or confidential information.
15.1 This entire condition and any other limitations in the Agreement including these Terms & Conditions do not apply to any Consumer Guarantee under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (“Australian Consumer law”) or to any of our liability for failure to comply with a Consumer Guarantee under the Australian Consumer Law. To the fullest extent permissible by law, the Services, the EAC Material and the Platforms and their entire contents are provided on an “as is” and “as available” basis without any warranties of any kind either expressed or implied. We disclaim all warranties of merchantability, non-infringement and fitness for a particular purpose. In no event will we, our affiliates and related entities, servants, employees and agents, be liable to you for any form of loss, damage, liability or expense whatsoever arising from any act or omission by you (including where you have failed to deliver the Subscriber Material or other information or documents or instructions in the manner required), a third party service provider or contractor to us or any discrepancy, fault or malfunction of any EAC or third party telecommunications system, software, system or computer server or any other technology based platform, including but not limited to consequential, indirect, incidental, or special damages, damages for loss of profits, business interruption, loss of or unauthorised access to information, loss of reputation, loss of goodwill, loss of data and the like, even if we have been advised of the possibility of such damages. You agree that you assume total responsibility and risk for your use of the Platforms and your sole remedy against us for dissatisfaction with the Services, the EAC Material, the Platforms or the content communicated in the course of, or in connection with, the Agreement is to stop using the Services, the EAC Material, the Platforms or such content. In no event will we, our affiliates and related entities, servants, employees and agents, be liable to you for an amount in excess of the total dollar amount actually received by us from you in accordance with the Agreement.
15.2 We make no representations, warranties or guarantees to you and do not provide any undertaking regarding the functionality and performance of the Platforms or our content on third party sites (including but not limited to “up time”), that the Platforms or our content on third party sites will be fault or error free or that any errors or interruptions will be rectified within any particular time period. We assume no responsibility, and shall not be liable for, any damage to or viruses that may infect your computer equipment or other property on account of your access to and use of the Platforms or our content on third party sites. We also assume no responsibility, and shall not be liable for any interruptions or errors in gaining access to the Platforms or our content on third party sites, the accuracy, timeliness, completeness, security or reliability of any communications made through or in relation to the Platforms or our content on third party sites, any problems or technical malfunction of any telephone or network or lines, servers or providers, technical problems or traffic congestion on a mobile network (or any combination thereof), or any other technical failures related to, or resulting from, your access to and use of the Platforms or our content on third party sites.
15.3 If the Agreement constitutes a supply of goods and/or services to a Consumer then, subject to the limitation to this condition below and unless the goods and/or services are Consumer Goods or Consumer Services, our liability for a breach of these Terms & Conditions, including any liability for any Losses or consequential Losses which you may suffer or incur because of a failure to comply with a Consumer Guarantee will be limited as we may elect in our absolute discretion, in the case of services supplied or offered by us, to either: (a) supplying the services again; or (b) paying the cost of having the services supplied again; or, in the case of goods supplied or offered by us: (c) replacing the goods or supplying equivalent goods; (d) repairing the goods; (e) paying the cost of replacing the goods or acquiring equivalent goods; or (f) paying the cost of having the goods repaired. This condition does not apply if it is not Fair or Reasonable for us to rely on it. Words or expressions used in this condition which are defined in the Australian Consumer Law have the same meaning in this condition.
16.1 Each party must not, without the prior written approval of the other party, disclose or use the other party’s confidential or secret information relating to a party (or any associated entity or client of a party) its products, business methods, methods of operation, systems, processes, computer programs, finances, trade secrets, lists of clients and prospective clients and other confidential or secret information of a party (or any associated entity or client of a party) which by its nature or the circumstances of its disclosure could reasonably be expected to be regarded as confidential (“Confidential Information”). A party will not be in breach of this condition in circumstances where it is legally compelled to disclose the other party’s Confidential Information, the other party’s Confidential Information was in the public domain at the time it was supplied to the party, the other party’s Confidential Information became part of the public domain after its provision to the party other than through a disclosure by the party (or any person to whom the party had disclosed that information), or the other party’s Confidential Information came lawfully into the possession of the party other than as a result of a disclosure in breach of this condition. Each party must ensure that its employees, agents and any sub-contractors engaged for the purposes of the Agreement do not make public, use or disclose the other party’s Confidential Information. Notwithstanding any other provision of this condition, each party may disclose these Terms & Conditions to its related companies, solicitors, auditors, insurers and accountants. This condition will survive expiry or termination of the Agreement.
18. FORCE MAJEURE
18.1 We will make reasonable efforts to keep the Services, the EAC Material and the Platforms operational, however technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, at any time, to modify or temporarily suspend the Services or the EAC Material or functions or features on the Platforms, with or without notice, all without liability to you for any interruption, modification or suspension of the Services, the EAC Material or the Platforms or any function or feature thereof. We will not be liable for any problems or failures caused by circumstances outside our control, including but not limited to power outages, surges, data loss and failure from third party software that may occur whilst we are performing our obligations under the Agreement.
19.1 We will not be taken to have waived or modified any of term of the Agreement except by an express statement in a document signed by a duly authorised representative of EAC.
20.1 You may not assign any of its rights in the Agreement without our prior written consent. We may assign the Agreement, including our rights or obligations under it, upon written notice to you, provided that the relevant assignee undertakes to perform all of our obligations herein.
21.1 If any provision of the Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be taken to be modified to the extent necessary to make them enforceable.
22. ENTIRE AGREEMENT
22.1 The Agreement embodies the entire agreement between you and us, and supersedes all prior and contemporaneous agreements, arrangements and understandings between you and us with respect to its subject matter. All existing agreements between you and us (if any) are, by agreement between you and us, hereby terminated and of no further legal effect except for any provisions in such agreements that by their nature are intended to survive termination or expiration. No additional Subscriber originating agreement or other Subscriber terms & conditions may be imposed on us unless agreed by us in writing and in such event, this Agreement shall prevail to the extent of any inconsistency any terms & conditions in a Subscriber originating agreement or other Subscriber terms & conditions and this Agreement. The Agreement does not create a joint venture, partnership, employment, or agency relationship between the parties.
22.2 Any additional forms, documents, materials or other information forms part of the Agreement. New forms, documents, materials or other information may be inserted or forms, documents, materials or other information may be amended or updated from time to time by us in our absolute discretion. Any new or amended forms, documents, materials or other information will then form part of the Agreement. Each party must comply with the terms set out in any additional forms, documents, materials or other information to the Agreement as operative terms of the Agreement. This Agreement shall prevail to the extent of any inconsistency any term in any such additional forms, documents, materials or other information and this Agreement.
22.3 Our decision in relation to all aspects of the Agreement, the Services, the EAC Material and the Platforms is final and no correspondence will be entered into.
23. GOVERNING LAW
23.1 The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the jurisdiction of the courts of New South Wales, Australia and the Federal Court sitting in New South Wales, Australia. We may send electronic mail to you for any notices or notifications. All notices to us relating to any legal claims or matters must be made in writing to us at our address in condition 24.2 of these Terms & Conditions.
24. SUPPORT AND CONTACT DETAILS
24.1 Support is made available for the Platforms, the EAC Material and the Services on our support telephone line (1300 137 161) from Monday to Friday (excluding NSW public holidays) between the hours of 8:45am to 6:00pm (AEDT/AEST). During this time you may contact our support line and obtain support limited to the technical use of the Platforms, the EAC Material and/or the Services. Support does not extend to issues related to the operation of your computer hardware, operating systems, network, firewall or anti-virus solution.
24.2 Please direct to us any queries you may have regarding your subscription, the Platforms, the EAC Material and/or the Services. You may contact us via:
mail: 2A 175 James Ruse Drive, Rosehill NSW 2142;
telephone: 1300 137 161; and
SCHEDULE 1 RED SQUARE SERVICES
1. RED SQUARE SERVICES
1.1 These Services may include:
1.1.1 property sales information, which is owned by and provided under licence from Land and Property Information, a division of the Office of Finance and Services. EAC is authorised as a property sales information provider by the Office of Finance and Services, Land and Property Information;
1.1.2 mapping data, which is owned by PSMA Australia Limited and based on data provided under licence from PSMA Australia Limited;
1.1.3 telephone data, which is owned by Data Business Solutions Australia Pty Ltd;
1.1.4 electronic real estate forms, which are owned by EAC;
1.1.5 AddList, which comprises listing management, for sale and for lease searches, CMI searches, neighbourhood and comparative market analysis reports, which are developed by EAC; and
1.1.6 Communicate, contact and reduce my bills, which are third party services subject to the third party’s prevailing terms and conditions.
2. PROPERTY SALES INFORMATION USE
2.1 You must not:
2.1.1 on-sell, sub-licence, disclose or otherwise provide property sales information in the form obtained from the Office of Finance and Services, Land and Property Information to any other person;
2.1.2 alter the format, meaning or substance of any property sales information supplied;
2.1.3 remove any notices referencing the Office of Finance and Services, Land and Property Information; or
2.1.4 use the property sales information for direct marketing or with the intention of interfering with the privacy of an individual.
3. TELEPHONE DATA USE
3.1 All marketing communications used in connection with the marketing list(s) created by or for you derived solely from the information provided through the telephone data service must:
3.1.1 not include a reference as to how the recipient was selected or how the recipient’s name and address were obtained;
3.1.2 prominently display a notice that the recipient may elect not to receive further direct marketing communications from you;
3.1.3 set out your business address and telephone number or a number or address at which you can be contacted electronically if such opt-out communication is made by electronic means; and
3.1.4 be in good taste in accordance with generally recognised standards of high integrity.
3.2 You will suppress an individual’s information on request by that individual so that it is removed from your future marketing initiatives. You will notify us of the request and any other consumer inquiry that involves the accuracy of the list(s) or any part thereof within seven (7) days of the date of consumer inquiry.
3.3 Supply and use of the telephone data is subject to the Do Not Call Register Act 2006 (Cth) and it is your responsibility to understand your obligations under this Act.
SCHEDULE 2 REALESTATEWORLD.COM.AU SERVICES
1. REALESTATEWORLD.COM.AU SERVICES
1.1 These Services may include:
1.1.1 listing of real property in Australia for sale, lease or auction on behalf of your clients;
1.1.2 listing and inspection alerts; and
1.1.3 Internet marketing reports.
2. ADDITIONAL SUBSCRIBER OBLIGATIONS
2.1 Acceptable Use. Without limiting condition 10.1 or any other provision of the Terms & Conditions, you must use the website realestateworld.com.au, the content located at the domain names of this website and any and all associated software, application(s), media and electronic documentation made available by us that support and facilitate its operation (Real Estate World Platforms):
2.1.1 for the bona fide purpose of listing of real property in Australia for sale, lease or auction on behalf of your clients;
2.1.2 to list and/or otherwise advertise a property once you have obtained the relevant vendor’s consent to do so; and
2.1.3 to list and/or otherwise advertise a property in Australian States/Territories where you hold a current and valid real estate agent’s licence.
2.2 Prohibited Use. Without limiting condition 10.2 or any other provision of the Terms & Conditions, you must not:
2.2.1 list any private listings for or on behalf of clients on the Real Estate World Platforms;
2.2.2 list any item other than real property for sale, lease or auction on the Real Estate World Platforms;
2.2.3 list any real property for sale, lease or auction on the Real Estate World Platforms without the required consents, releases, approvals or licences;
2.2.4 supply any false, misleading or deceptive or inaccurate information regarding any property, including but not limited to pictures/drawings or using street names, suburbs or location names that are inaccurate or not officially recognised by Geoscience Australia (www.ga.gov.au);
2.2.5 create more than one (1) listing for any one (1) property at any one time on the Real Estate World Platforms (including but not limited to creating multiple listings for a single property, but with different prices);
2.2.6 remove and then immediately (or within a short period) re-list a property on the Real Estate World Platforms so that the listing will appear as a new listing to third party users of the Real Estate World Platforms;
2.2.7 use the same titles, images or descriptions for separate property listings; or
2.2.8 list a property without having first received written approval and consent to do so from the vendor of the relevant property.
3. USE OF THE REAL ESTATE WORLD PLATFORMS
3.1 Except as expressly provided by us in a Subscription Order or otherwise in writing, the format, style and positioning of property listings (if applicable) and other Content on the Real Estate World Platforms is in our absolute discretion and we make no warranty or representation to you that any particular listing (if applicable) or other Content generated by you will be placed in any specific section or area of the Real Estate World Platforms with any particular prominence. We make no guarantees with respect to usage statistics or levels of impressions (as applicable) for Content generated by you on the Real Estate World Platforms.
3.2 You acknowledge that we have not made any warranties in respect of the success or otherwise of listing properties or otherwise advertising upon the Real Estate World Platforms.
SCHEDULE 3 WEBSITE DESIGN AND WEBSITE AND EMAIL HOSTING SERVICES
1. WEBSITE DESIGN AND WEBSITE AND EMAIL HOSTING SERVICES
1.1 These Services may include:
1.1.1 domain name registration, renewal, redelegation or redirection;
1.1.2 domain name hosting by us in conjunction with Netregistry Pty Ltd;
1.1.3 mapping of your domain name;
1.1.4 hosting of your website in conjunction with Netorigin Group Pty Ltd;
1.1.5 email hosting provided by Netregistry Pty Ltd or forwarding;
1.1.6 creation, manipulation and use of images and graphics;
1.1.7 web page design, creation and modification;
1.1.8 provision of property search and results functionality;
1.1.9 provision of mobile device website;
1.1.10 set-up of social media accounts;
1.1.11 provision of web-based forms;
1.1.12 basic search engine optimisation and submission of your site to search engines; and
1.1.13 provision of services utilising the services of external companies.
2. DOMAIN NAME REGISTRATION, HOSTING AND RENEWAL
2.1 We will consider all requests for domain name registration and accept or reject them in accordance with the guidelines set by the relevant naming authorities. The registrant agrees that all details submitted in respect of a domain name registration are true and correct. We will process domain name registration requests on a first come, first served basis. Until the registrant receives confirmation of registration from us, there is no guarantee that the domain name requested has been registered.
2.2 We will endeavour to advise you when your domain name is due for renewal. Once a domain name has been registered or renewed, we cannot provide any refunds.
2.3 Any domain name registered on your behalf remains your property in accordance with the guidelines set by the relevant naming authorities. If your domain name is managed by us, the Domain Name Hosting, including any mappings, will be provided by us in conjunction with Netregistry Pty Ltd while you continue to subscribe to our Services.
2.4 Should you cease your subscription and/or choose not to use our Services, we accept no responsibility for any aspect of your domain name including renewal, mappings and hosting of same thereafter.
3. DOMAIN NAME TRANSFER
3.1 You may transfer your domain name from a third party to us to manage. If you choose to do so, we will facilitate the transfer of your domain name to us for it to be managed by us and you undertake to provide us with the relevant information that we may request for this to occur.
4. EMAIL HOSTING
4.1 Where you have chosen for us to manage your domain name, we are able to offer email hosting in conjunction with Netregistry Pty Ltd while you continue to subscribe to these Services. Should you cease your subscription and/or choose not to use our Services, we accept no responsibility for any aspect of your email hosting.
4.2 We will set up the email hosting service and then provide you with access to the account for you to set up and maintain email accounts. If required we will provide assistance with the initial set up of your email accounts and instructions for configuration of email clients. This assistance does not extend to issues related to the operation of your computer hardware, operating systems, network, firewall or anti-virus solution.
5. WEBSITE HOSTING
5.1 We will host your website in conjunction with Netorigin Group Pty Ltd while you continue to subscribe to these Services. Should you cease your subscription and/or choose not use our Services, we will transfer the web hosting account at Netorigin Group Pty Ltd to you within thirty (30) days of EAC receiving your cancellation of our Services. However, during this thirty (30) day period and thereafter, we accept no responsibility for any aspect of your website.
6. WEBSITE DESIGN AND SET-UP OF SOCIAL MEDIA ACCOUNTS
6.1 You are required to ensure that the content of your website and social media accounts meets all applicable laws, the requirements or directions of relevant regulators, Industry Codes and rules of the site (if any). You shall further indemnify us in respect of any claims, costs and expenses that may arise from any material included in your website and/or social media accounts set-up at your request. We reserve the right not to include any material supplied by you if we deem it inappropriate or offensive.
6.2 You will obtain all necessary permissions and authorities in respect of the use of all copy, graphics, registered company logos, names and trade marks or any other material supplied by you. Supply of this material by you shall be regarded as a guarantee by you to us that all such permissions and authorities have been obtained.
6.3 We will accept no responsibility for damages to or losses incurred by you from the use of material for which the required permission or authority has not been obtained.
6.4 All original graphics designed and supplied by us remain our property until full payment has been received for Services provided, at which time ownership and copyright of these graphics will be assigned to you. However, for all of our ‘template based sites’, copyright to the templates/designs will at all times reside with us. Ownership of all of your supplied material will however at all times remain with you.
6.5 We will use all due care to ensure websites provided by us are free of errors but we cannot accept responsibility once you have signed off on the website and it has been made live.
6.6 The entry and modification of all property listing content on your website is only possible through the use of either our listing management feature or via one of our external feeds.
6.7 All Intellectual Property Rights including copyright in any of the search functions, web forms, property display information, website code and database functionality remain our property.
7. WEBSITE MAINTENANCE
7.1 Modification and/or changes to your website will be assessed and quoted on a case-by-case basis. If it is agreed that the changes are chargeable (i.e. changes to text, pages, photos, graphics, tables etc.), these will be charged at our standard hourly rates with a minimum charge of thirty (30) minutes. Pricing will be provided prior to the commencement of any work.
8. SEARCH ENGINES
8.1 While we will make every effort to ensure that your website is indexed by search engines, we cannot guarantee acceptance or site rankings. Crawling, indexing and ranking are at the discretion of the search engine. We cannot be held responsible for the search results that may be displayed by the search engine.
SCHEDULE 4 EAC VIDEO MARKETING SERVICES HARDWARE
1. EAC VIDEO MARKETING SERVICES HARDWARE
1.1 These Products may include:
1.1.1 video stabiliser
1.1.2 video stabiliser batteries;
1.1.2 smartphone camera Lens;
2.1 Subject to the terms and conditions set out below EAC agrees to repair or replace the products for a period of 12 months from date of purchase where the Product does not perform in accordance with the specification.
2.2 We recommend that you keep your original product packaging if possible. In the unlikely event that you require a warranty repair and you do not have the original packaging, you will bear the responsibility for safely packaging your Product for return and EAC accepts no liability for any damage that may occur in transit.
2.3 Proof of purchase must be provided when requesting service under warranty.
2.4 Except where Products are faulty or damaged upon delivery the Product is to be returned to EAC at your cost.
2.4 Where Products are faulty or damaged upon delivery, photographic evidence of the damage must be provided to EAC before the Product will be repaired or replaced in accordance with these terms.
2.5 Warranty for the Products do not apply:to consumable parts, such as batteries unless failure has occurred due to a defect in materials or workmanship;
- to damage caused by accident, abuse, misuse, liquid contact or other external cause;
- to damage caused by operating the Product outside any guidelines published for use;
- to damage caused by service or modification (including upgrades and expansions) performed by anyone who is not a representative of EAC;
- to defects caused by normal wear and tear or otherwise due to the normal ageing of the Product;
- if any serial number has been removed or defaced from the Product,
- where proof of purchase cannot be provided.
2.6 The benefits provided to you by this product warranty are in addition to other rights and remedies available to you under the law.