Terms & Conditions.

Our disclosures

Please read these Terms carefully before you accept. We draw your attention to:

• our privacy policy (on the Platform) which sets out how we will handle your personal information;
• clause 1.6 (Variations) which sets out how we may amend these Terms;
• clause 1.8 (Exclusions) which sets out the exclusions to our Services;
• clause 8.10 (Data) which sets out that we may receive a benefit from sharing data with third parties, but we will obtain your consent before sharing any data that contains your Personal Information for this purpose; and
• clause 11 (Liability) which sets out exclusions and limitations to our liability under these Terms.

Where you use our Platform as a Buyer, we will receive a benefit from the Seller when you buy a property from them on our Platform.

We may also receive a benefit (which may include a referral fee or a commission) should you visit certain third party websites through a link in the Services, or for featuring certain goods or services on the Services.

These Terms do not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.

1. Engagement and Term

• These Terms apply from the time you agree to these Terms, until the date these Terms are terminated in accordance with their terms (Term).
• Subject to your compliance with these Terms, we will provide you with access to the Services.
• Where the Services include the provision of an application programming interface (API), you agree to only use the API in accordance with the documentation that we provide to you through our Platform or otherwise.
• We will not be responsible for any other services unless expressly set out in these Terms or on our Platform.
• If we provide you with access to any new or beta services, you acknowledge that because of the developmental nature of such services, you use them at your own risk and we have no obligation to maintain or provide error corrections. Any new or beta services we provide you with access to are for evaluation purposes only and not for production use, and we may discontinue those services at any time at our sole discretion.
• Variations: We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Services after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you should cease using the Services.
• Additional Services: If we consider that any instructions or directions from you constitutes a variation to the scope of the Services or our obligations under these Terms, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause. The parties must agree to the proposed variation in writing, which will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the parties. Where the proposed variation involves licensed real estate activities and we are willing to provide the services, we will ask you to sign a separate Agency Agreement.
• Exclusions: The Services are limited to the provision of access to our Platform. We do not provide real estate agency services under these Terms and the Services do not include:
  • acting on your behalf in real estate negotiations and transactions;
  • providing advice on pricing, marketing strategy or contract terms;
  • verifying the accuracy or legality of Listings;
  • showing a Listing to prospective Buyers;
  • showing prospective Buyers through a property or model property;
  • conducting Buyer due diligence or qualification;
  • holding money on trust related to real estate transactions;
  • participating in auctions on your behalf; or
  • representing you in settlement or handover.
• Nothing in this Agreement appoints us as your real estate agent or auctioneer. If we agree to perform any of the above services, this will be subject to a separate Agency Agreement. If you require licensed real estate agent assistance during your campaign, you may request additional services by following the process set out in clause 1.7 (Additional Services).
• Third Party Services: To the extent that the Services involve the provision of access to or use of third party services or products (Third Party Services), you acknowledge and agree that:
  • the Third Party Services may be subject to additional terms and conditions (Third Party Services Terms);
  • you may be required to accept end user licence agreement terms before using the Third Party Services;
  • the Third Party Services may be operated and controlled by parties unrelated to and completely independent from us;
  • the Third Party Services Terms may be amended by the Third Party Services provider from time to time; and
  • in connection with the Services, you will comply with the Third Party Services Terms at all times.

2. Account

• You must sign up for an Account in order to access and use the Services.
• While you have an Account with us, you agree to:
  • keep your information up-to-date (and ensure it remains true, accurate and complete);
  • keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and
  • notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.
• If you close your Account, you will lose access to the Services.

3. Your Responsibilities

Unless we have signed an Agency Agreement with you, you are responsible for:

• conducting all physical property inspections and open homes;
• creating and managing the content of your Listing (including all property information, descriptions, pricing);
• all communication, follow-up and negotiations with other Buyers or Sellers;
• coordinating the preparation and negotiation of sale of land contracts with your solicitor or conveyancer; and
• settlement and handover processes.

4. Platform

Our Platform facilitates connections between Sellers and Buyers for the purposes of selling and purchasing property (Offer).

Listings

Sellers wanting to sell property on our Platform can create a property listing (Listing) detailing their Offers. By posting a Listing, Sellers:

• confirm that they have legal ownership of the property and the authority to sell it;
• warrant that all information in their Listing is accurate, complete and up to date;
• agree to disclose all information about the property in the form required by applicable State or Territory laws; and
• must comply with all laws applicable to the Offer.

Buyers may:

• browse existing Listings and interact with Sellers through our Platform;
• submit requests for specific properties, which Sellers may respond to with custom Offers; and
• submit Offers to purchase the property featured in a Listing.

A binding contract between Sellers and Buyers is formed when:

• either:
  • a Seller accepts an Offer from a Buyer; or
  • a Buyer accepts an Offer from a Seller,
• either through private sale or auction; and
• the relevant Seller and Buyer execute a sale of land contract in accordance with applicable laws.

We are not a party to any contract or transaction between a Seller and Buyer.

Sellers and Buyers must not use our Platform to obtain each other’s contact details for the purpose of circumventing any Fees payable to us for the use of our Platform and our Services. If you are a Seller and you complete a sale with a Buyer who you met or were introduced to through the Platform within 90 days of:

• your Listing being removed from the Platform; or
• these Terms being terminated,

you agree to pay us the Success Fee, whether or not the transaction was completed through the Platform.

We do not endorse or approve, and are not responsible for, any Offers or the details of any Listings unless we have an Agency Agreement with the user who made the Offer or Listing. We may, at any time (at our sole discretion and without any Liability), remove any Listings, including where we consider an Offer or a Listing:

• is illegal or offensive;
• contains graphic, inappropriate or unlawful content; and/or
• is in contravention of any applicable law.

Auctions

We allow Buyers and Sellers to participate in online auctions. We may require you to register to bid in a particular auction. We reserve the right to refuse registration at our discretion, including where we suspect fraudulent activity.

By placing a bid or accepting a price, you acknowledge and agree that:

• your bid or acceptance constitutes a binding offer to purchase or sell the property (as applicable);
• if you are the successful bidder, you are legally obligated to complete the purchase or sell the property (as applicable) in accordance with the contract of sale; and
• you may be liable under the terms of the contract of sale if you fail to complete the purchase or sale.

5. Fees

• We will only charge you Fees if you use our Platform as a Seller. We will charge you a fixed fee to create a Listing (Listing Fee) and a fixed fee upon settlement of the property featured in the Listing (Success Fee). The Listing Fee and Success Fee will be as set out on the Platform (collectively, the Fees).
• When the Buyer pays the sale price for the property, the funds will be transferred directly to your conveyancer or solicitor and we will invoice you for the Success Fee. You must pay the Success Fee within 30 days of the date of our invoice. We do not hold any funds in trust.
• Our payment methods will be set out at the time you create a Listing. If you choose to pay your Fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out at the time you make payment).
• You must not pay, or attempt to pay, any Fees due under these Terms or as a result of your use of the Services by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account, and you confirm that you are either the holder or an authorised signatory of that bank account.
• If any Fees due under these Terms or as a result of your use of the Services are not paid on time, we may:
  • suspend your access to the Services; and
  • charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.
• You are responsible for paying any levies or taxes associated with your use of the Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).

6. Licence

During the Term, we grant you a right to use our basic Services in accordance with these Terms. This right cannot be passed on or transferred to any other person.

You must not:

• access or use the Services in any way that is improper or breaches any laws, infringes any person’s rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
• interfere with or interrupt the supply of the Services, or any other person’s access to or use of the Services;
• introduce any viruses or other malicious software code into the Services;
• use any unauthorised or modified version of the Services, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;
• attempt to access any data or log into any server or account that you are not expressly authorised to access;
• use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
• circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
• access or use the Services to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

If the Services include API access, you may use any provided APIs in accordance with our API documentation and usage policies. You may make necessary modifications to facilitate such integration, provided that such modifications do not alter or compromise the core functionality or security of the Services.

7. Availability, Disruption and Downtime

• While we strive to always make the Services available to you, we do not make any promises that these will be available 100% of the time. The Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.
• The Services may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.
• We will try to provide you with reasonable notice, where possible, of any disruptions to your access to the Services.

8. Intellectual Property and Data

• We own all intellectual property rights in the Platform and Services. This includes how the Platform looks and functions, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the Services.
• You own all intellectual property rights in the information, photographs, materials, logos, documents, qualifications and other intellectual property or data (Platform Data) and any other intellectual property created, owned or licensed by you. The Platform Data does not include any anonymised statistical data, as set out in clause 8.9.
• You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence to use, copy, transmit, store, backup, and access such information for the purposes of:
  • providing and improving the Services;
  • performing our obligations under these Terms;
  • enabling you to access and use the Platform;
  • diagnosing problems with the Platform;
  • developing other services, provided we de-identify the Platform Data; and
  • any other purpose that you consent to.
• You represent, warrant, acknowledge and agree that you have all necessary rights to provide the Platform Data to us, and that our use of it as contemplated by these Terms will not violate any laws or third-party rights, including intellectual property, privacy, or publicity rights.
• If you have any Moral Rights in any material provided, used or prepared in connection with these Terms, you consent to our use or infringement of those Moral Rights.
• We own or have licenses to all content displayed on the Services (Content). You do not have any ownership rights in any Content on the Services. Subject to your compliance with these Terms, we grant you a non-exclusive, revocable, non-sublicensable and non-transferable licence to view the Content, solely for your own personal use.
• You must not, unless expressly authorised by us or these Terms:
  • circumvent or disable any content protection system or technical protection measure used in the Services or the Content;
  • copy or modify, in whole or in part, any of the Content;
  • reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or otherwise commercialise the Content to any third party; or
  • breach, or allow any third party to breach, any intellectual property rights in the Content.
• We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.
• When you use the Services, we may create anonymised statistical data from your usage of the Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available or selling it to a third party provider, provided it is not compiled using a sample size small enough to make your data or identity identifiable.
• We may obtain a benefit from sharing, licensing, or selling anonymised and aggregated data derived from the Platform or the Platform Data to third parties, such as automated valuation model providers. We will only share, license, or sell data that contains your Personal Information for this purpose if we have notified you and obtained your consent in advance.
• This clause 8 will survive the termination or expiry of these Terms.

9. Confidential Information and Personal Information

• While using the Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a ‘need-to-know basis’ (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.
• However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.
• We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available on the Site, and applicable privacy laws.
• You must only disclose Personal Information to us if you have the right to do so (such as having the individual’s express consent).
• We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).
• Where we are required by law to report on our activities, you acknowledge that from time to time we may request certain information from you in order to meet our requirements, and you agree to provide us with such information within the timeframes reasonably requested by us.
• This clause 9 will survive the termination or expiry of these Terms.

10. Consumer Law Rights

• In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms.
• Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.
• If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
• This clause 10 will survive the termination or expiry of these Terms.

11. Liability

To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:

• your computing environment (for example, your hardware, software, information technology and telecommunications services and systems);
• the accuracy or legality of any Listings;
• any aspect of the interactions between Buyers and Sellers, including in relation to any Offers and Listings or any contractual agreement between you and another user;
• any other user’s breach of these Terms, including in relation to confidentiality, privacy, and intellectual property; or
• any use of the Services by a person or entity other than you.

Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:

• neither we or you are liable for any Consequential Loss;
• a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss;
• (where the Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
• our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to the amount of any Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates, and where no Services have been purchased, AU$1000.

This clause 11 will survive the termination or expiry of these Terms.

12. Suspension and Termination

Suspension

We may suspend your access to the Services where we reasonably believe there has been any unauthorised access to or use of the Services (such as the unauthorised sharing of login details for the Services). If we suspend your access to the Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate these Terms and your access to the Services will end.

Termination

We may terminate these Terms (meaning you will lose access to the Services) if:

• you fail to pay your Fees when they are due;
• you breach these Terms and do not remedy that breach within 14 days of us notifying you of that breach;
• you breach these Terms and that breach cannot be remedied;
• we decide to discontinue the Services, in which case we will provide you with at least 90 days’ written notice; or
• you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors’ schemes of arrangement).

You may terminate these Terms if:

• we breach these Terms and do not remedy that breach within 14 days of you notifying us of that breach; or
• we breach these Terms and that breach cannot be remedied.

You may also terminate these Terms at any time by notifying us through your Account or to our email for notices (as set out in clause 13.8), and termination will take effect immediately.

Upon termination of these Terms:

• any of your existing Listings or Offers will be removed;
• where you are a Seller, we may charge you the Success Fee for property sales that are settled after termination, in accordance with clause 4.5; and
• you agree to pay us for all Services provided prior to termination, including Services which have been provided and have not been charged to you, and all other amounts due and payable under these Terms.

Termination of these Terms will not affect any contract you have entered into with another Buyer or Seller, which will continue in accordance with its terms.

Termination of these Terms will not affect any other rights or liabilities that we or you may have.

This clause 12 will survive the termination or expiry of these Terms.

13. General

• Assignment: You may not transfer or assign these Terms (including any benefits or obligations you have under these Terms) to any third party without our prior written consent. We may assign or transfer these Terms to a third party, or transfer any debt owed by you to us to a debt collector or other third party.
• Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
• If the Dispute is not resolved at that initial meeting:
  • where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation; or
  • where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Melbourne, Victoria, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.
• Events Outside Our Control: We will not be liable for any delay or failure to perform our obligations (including the Services), if such delay or failure is caused or contributed to by an event or circumstance beyond our reasonable control.
• Governing law: These Terms are governed by the laws of Victoria, and any matter relating to these Terms is to be determined exclusively by the courts in Victoria and any courts entitled to hear appeals from those courts.
• Illegal Requests: We reserve the right to refuse any request for or in relation to the Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.
• Marketing: You agree that we may send you electronic communications about our products and services. You may opt-out at any time by using the unsubscribe function in our electronic communications.
• Nature of Legal Relationship: These Terms do not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.
• Notices: Any notice you send to us must be sent to the email set out at the beginning of these Terms. Any notice we send to you will be sent to the email address registered against your Account.
• Professional Services Disclaimer: The Services do not constitute, and are not a substitute for, financial, legal or risk management advice.

Definitions

In these Terms:

Account means an account accessible to the individual or entity who signed up to the Services.

Agency Agreement means the written agreement between us and you under which we agree to provide you with services that are subject to licensing requirements in the specific State or Territory relevant to your Listing or Offer.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of the Services (including the Services) will not constitute “Consequential Loss”.

Fees has the meaning given in clause 5.1.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.

Listing has the meaning given in clause 4.2.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.

Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.

Services means the provision of access to our Platform.

Success Fee has the meaning given in clause 5.1.