These terms and conditions set out the terms upon which We will load Listings onto Third Party Sites on Your behalf.
1.1 This Agreement commences when We accept an Order Form requesting multi loading services (Commencement Date), and continues until terminated in accordance with clause 10.
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.
3.1 You must pay to Us, in the manner specified by Us from time to time, the:
(1) “initial fee” specified on the Order Form on submission of the Order Form;
(2) “administration fee” specified by Us from time to time at the time You make a request under clause 4.1(2); and
(3) “data matching fee” specified by Us, and at the time specified by Us, from time to time in respect of the provision of Data Matching Services.
4.1 If You would like Us to:
(1) cease loading Listings onto a Third Party Site, You must notify Us in writing, at which time:
(a) the relevant website will cease to be a Third Party Site; and
(b) We will cease loading Listings onto the website; or
(2) commence to load Listings onto a website (where We offer multi loading services in respect of that website), You must notify Us in writing. Within 30 days of receipt of the notice, We will commence to load Listings onto the new website, at which time it will become a Third Party Site.
5.1 You must enter into, and comply with, all Third Party Agreements, and execute all documents required by a Third Party Operator to allow Us to load Listings onto the Third Party Site.
5.2 Without limiting clause 5.1, You are responsible for payment of all Third Party Fees, and must pay these fees directly to the Third Party Operator. If We have an obligation to pay any Third Party Fee, You must pay the Third Party Fee on Our behalf, or immediately on demand reimburse Us for Third Party Fees paid by Us.
6.1 We will:
(1) provide the Data Matching Services:
(a) as an initial service, in respect of all Listings on Our Web Site on the Commencement Date; and
(b) upon reasonable request by You (subject to Our agreement), in respect of all Listings on Our Web Site on the date agreed by the parties;
and will use Our best endeavours to provide the Data Matching Services within 5 Business Days of the Commencement Date or date agreed by the parties (as applicable); and
(2) subject to clause 6.2, load Listings onto Third Party Sites, and will use Our best endeavours to do so with 2 Business Days of the Listing being loaded onto Our Web Site.
6.2 We are not obliged to attempt to load Listings onto any Third Party Site or provide any Data Matching Services where:
(1) the data is not in the form required by Us;
(2) any required Third Party Agreement has not been executed, or We do not have the authority to load the Listing onto the Third Party Site; or
(3) You are in breach of this Agreement, or any other agreement You have with Us.
6.3 Once Listings have been loaded onto a Third Party Site, You are responsible for all correspondence with the Third Party Operator regarding the Listings. We are not obliged to respond to any Third Party Operator on Your behalf but will use Our reasonable endeavours to pass on any correspondence received.
6.4 You must, within the period required by the Listing Terms and Conditions or such lesser period as is required for compliance with any Third Party Terms, notify Us in writing that a property that is the subject of a Listing has been sold, rented or removed from the market (as applicable). We will then instruct Third Party Operators to remove the Listing from the relevant Third Party Site.
6.5 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.
7.1 You must comply with all Our reasonable requests relating to this Agreement, and ensure that:
(1) the Listings comply with any requirements of a Third Party Agreement; and
(2) You comply with the Privacy Act 1988 (Cth) as if You were an “organisation” as defined in that Act.
(1) warrant that You are authorised by or on behalf of the owners of the properties contained in the Listings and the owners of the rights (including Intellectual Property rights) in the Listings (including any images) (Listing IP) to publish or cause to be published the Listings on the Third Party Site; and
(2) licence Us to use the Listing IP and any other information provided by You to Us, for the purpose of providing the services described in this Agreement.
7.3 You acknowledge that:
(1) You are responsible for the Listings loaded onto the Third Party Site by Us in accordance with this Agreement, including, the accuracy of all its descriptions, place, personal or other specific names, dates, times, figures, addresses, phone and facsimile numbers and email addresses; and
(2) provisions of the Listing Terms and Conditions relating to the “Confidentiality” and “Personal Information” apply to the parties’ activities under this Agreement.
8.1 To the maximum extent permitted by law, and subject to the clause 8.2, We exclude all statutory or implied conditions and warranties, representations, terms, undertakings and guarantees in respect of the services supplied under this Agreement.
8.2 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.
8.3 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 act or omission of a Third Party Operator;
(3) any operational failure or unavailability of Our Web Site or the Third Party Site;
(4) any contamination of, or defect in, Listings introduced by virus, latent defect, human or other error, or otherwise; or
(5) any delay or failure in loading Listings onto a Third Party Site.
9.1 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 the Third Party Listing;
(5) claims brought by or on behalf of any third party relating to an act or omission by You or relating to the Listings; or
(6) proceedings for infringement of any Intellectual Property rights in relation to the Listings.
10.1 We may terminate this Agreement, and cease providing any services under this Agreement:
(1) on 30 days’ written notice to You; or
(2) immediately, by giving notice in writing to You, if any of the following occurs:
(a) Our agreement with You set out in the Listing Terms and Conditions ends for any reason;
(b) there are no longer any Third Party Sites;
(c) You commit a breach of this Agreement which We consider is not rectifiable;
(d) 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; or
(e) an Adverse Event occurs.
11.1 In this clause 11, 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.
11.2 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.
11.3 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.
12.1 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.
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.
13.1 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.
13.2 We may set off against any payment due to You by Us, any unpaid debt You have to Us.
13.3 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.
13.4 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.
13.5 You cannot assign or otherwise deal with this Agreement except with Our prior written consent. 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.
13.6 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.
13.7 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.
13.8 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.
13.9 We may vary this Agreement at any time on written notice to You.
13.10 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.
13.11 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.
14.1 In this Agreement:
(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 Your 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) Commencement Date has the meaning given to it in clause 1.1;
(5) Data Matching Services means the service of procuring that the:
(a) code assigned to the Listing on Our Web Site is the same as the code assigned to the Listing on all Third Party Sites; and
(b) key information comprised in the Listing on Our Web Site also appears in the Listing on all Third Party Sites;
(6) GST means GST as defined in the GST Act or any replacement or other relevant legislation and regulations;
(7) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(8) 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;
(9) Listing Terms and Conditions means the agreement between Us and You regarding the display of properties listed by You on Our Web Site;
(10) Listings has the meaning given to it in the Listing Terms and Conditions;
(11) Order Form means the “REIV/REV Order Form” completed by You or Your representative;
(12) Our Web Site means www.realestateVIEW.com.au and any replacement website specified by Us;
(13) Third Party Listing Agreements means any agreement between a Third Party Operator and You relating to the appearance of Listings on the Third Party Site;
(14) Third Party Fees means any fees, levies or other costs payable to the Third Party Operator in relation to the loading or appearance of Listings on the Third Party Site;
(15) Third Party Operator means a party that owns or operates a Third Party Site;
(16) Third Party Sites means the websites indicated in the Order Form as amended in accordance with clause 4.1;
(17) We, Us and Our is a reference to realestateVIEW.com.au Ltd ABN 34 088 369 395 of 335 Camberwell Road, Camberwell, Victoria 3124; and
(18) You or Your is a reference to the estate agent listed in the Order Form.
14.2 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.
14.3 “Including” and similar expressions are not words of limitation.
14.4 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.
14.5 Headings are for convenience only and do not form part of this Agreement or affect its interpretation.
14.6 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.
14.7 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.
14.8 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.