Terms and Conditions

These terms and conditions form an agreement between Get Listings Pty Ltd ACN 638 298 610 (Company) and an individual or corporate entity registering to be a user of the Company’s Services (referred to as the Licensee).

If the Licensee is a “consumer” under the Australian Consumer Law, please note the Company limits its overall liability under this agreement (see clause 16.2) and excludes certain forms of liability under this agreement (see clause 16.3 and 16.4), although nothing in this agreement affects the Licensee’s statutory rights as a consumer. By entering into this agreement and accessing the Platform, the Licensee confirms that it is aware of the substance and effect of clause 16.

OPERATIVE PARTS

1. Defined terms and interpretation

1.1 Defined terms

App has the meaning given in clause 4.1(b).

App Stores means the Apple and Google Play stores.

Business Day means:

(a) for the purpose of sending or receiving a notice, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in the city where the notice is received; and

(b) for all other purposes, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in Sydney, New South Wales, Australia.

Business Hours means from 9.00am to 5.00pm on a Business Day.

Company IP has the meaning given in clause 8.1(a).

Commencement Date means the date that this agreement is accepted by the Licensee.

Community Rules means the Company’s community rules in respect of the use of the Platform published by the Company to Platform users (including the Licensee) from time to time.

Company Policies has the meaning given in clause 17(a).

Confidential Information means all information of any kind belonging or relating to the Discloser or its business affairs, whether or not it is in tangible or documentary form, and whether or not marked or identified as being confidential, and includes the subject matter and terms of this agreement, information relating to the design, specification and content of the Platform, and information relating to the personnel, policies or business strategies of the Discloser.

De-identified Licensee Data means Licensee Data in respect of which all Personal Information and information identifying the Licensee has been removed, by such Licensee Data being aggregated with other data sets, anonymised or otherwise.

Details means, in relation to a party, the details for that party set out in this agreement.

Discloser has the meaning given in clause 11.1.

Fees means the fees payable by the Licensee to the Company under this agreement.

Force Majeure Event means any act or circumstance beyond the reasonable control of a party (other than lack of funds), including:

(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires, pandemic, epidemic and any natural disaster; and

(b) acts of war, acts of public enemies, terrorism, hostility, invasion, riot, industrial action, civil commotion, strike, lockout, governmental regulation or direction, malicious damage, sabotage, revolution and failure in telecommunications, satellite or global positioning systems.

In-Platform Purchases means any additional functionality of the Platform that the Company may make available to Licensees for an additional fee from time to time.

Insolvency Event means:

(a) in respect of a body corporate, the occurrence of any of the following in respect of that body corporate:

(i) an order is made or an effective resolution is passed for the winding up, dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) or deregistration of that body corporate;

(ii) a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed or expected to be appointed over the whole or a substantial part of the undertaking or property of that body corporate;

(iii) a holder of an encumbrance takes possession of or exercises any other rights arising from the encumbrance over the whole or any substantial part of the undertaking and property of that body corporate, or indicates an intention to do so;

(iv) that body corporate becomes insolvent or any circumstance exists or arises which would require a court to presume that that body corporate is insolvent;

(v) that body corporate enters into or takes any steps to enter or proposes to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or a class of them;

(vi) that body corporate stops, suspends or threatens to stop or suspend paying its debts as and when they fall due; or

(vii) any analogous event under the laws of any applicable jurisdiction;

(b) in respect of a natural person, the occurrence of any of the following in respect of that natural person:

(i) an application is made to a court for an order that the person be declared bankrupt, and the application is not withdrawn, struck out or dismissed within 15 Business Days after it is made;

(ii) the person enters into an arrangement or composition with one or more of the person’s creditors, or an assignment for the benefit of one or more of its creditors;

(iii) a writ of execution is levied against the person or a material part of the person’s property which is not dismissed within 15 Business Days after the writ is levied; or

(iv) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.

Intellectual Property Rights means all present and future rights to:

(a) trade marks, trade names, domain names, logos, patents, inventions, registered and unregistered design rights, copyrights, circuit layout rights, trade secrets and the right to have information kept confidential, and all similar rights in any party of the world (including know-how); and

(b) where the rights referred to in paragraph (a) are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such applications.

Licence Fee means the Licence Fee as listed at propdeals.app/pricing as at the Commencement Date, as may be amended in accordance with clause 2(b).

Licensing Period means 30 days

Licensee Data means any information contained in documents or material:

(a) uploaded directly into the Platform by the Licensee;

(b) which has been provided by the Licensee to the Company, including in electronic storage devices, in order for the Company to perform the Services; or

Licensee Personal Information means the Personal Information of:

(a) the Licensee;

(a) the Licensee’s clients; and

(b) any person,

that is contained in the Licensee Data.

Loss means:

(a) any claim, demand, remedy, requisition, objection, suit, injury, damage, loss, liability, action, proceeding, right of action or claim for compensation;

(b) a valid request, direction, notice, demand, requirement, condition (including condition of an approval) or order from an authority that requires anything to be done or not to be done; or

(c) any reasonable cost (including legal costs on a solicitor and client basis), charge, expense, outgoing, payment or other expenditure of any nature.

Payment Method means credit card or electronic funds transfer to the Company’s nominated bank account.

Personal Information has the meaning given in the Privacy Laws.

Platform means the Company’s “Propdeals” online platform.

Privacy Laws means the Privacy Act 1988 (Cth), as amended from time to time.

Privacy Policy means the Company’s privacy policy available at propdeals.app/privacy-policy as amended from time to time.

Recipient has the meaning given in clause 11.1.

Referral Policy means the Company’s referral policy published by the Company to Platform users (including the Licensee) from time to time.

Sales Tax means any sales, goods and services or value added tax or any similar consumption tax levied by a government or authority.

Services means:

(a) the provision of the Platform;

(b) subject to clause 6.1(b), any In-Platform Purchases; and

Term has the meaning given in clause 2(a).

Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Platform and the Services, including any third party solutions, systems, data hosting and networks.

Upgrades means any upgrades made to or new releases of the Platform in accordance with clause 4.2(a).

Usage Right has the meaning given in clause 3.1(a).

Variation Date means the date that is 30 days after the date of a Variation Notice.

Variation Notice has the meaning given in clause 2(b).

Virus means any virus, Trojan horse, worm or other software routine designed to permit unauthorised access to any software or disable any software or data.

Webpage has the meaning given in clause 4.1(a).

1.2 Interpretation

In this agreement, except where the context otherwise requires:

(a) the singular includes the plural and vice versa and a gender includes other genders;

(b) other grammatical forms of a defined word or expression have a corresponding meaning;

(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of or schedule or annexure to this agreement and a reference to this agreement includes any schedule and annexure;

(d) a reference to a document or agreement, includes the document or agreement as novated, altered, supplemented or replaced from time to time;

(e) a reference to AUD, AU$ or $ is to Australian dollars;

(f) a reference to time is to Sydney, New South Wales, Australia time;

(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(h) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(i) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and

(j) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

1.3 Headings

Headings are for ease of reference only and do not affect interpretation.

2. Term and Renewal

(a) The term of this agreement begins on the Commencement Date for the Licensing Period and will, subject to the Licensee paying the Licence Fee prior to the commencement of each Licensing Period, automatically renew for successive Licensing Periods unless terminated in accordance with this agreement (Term).

(b) The Company may, by providing 30 days written notice, notify the Licensee of a proposed variation of the terms and conditions of this agreement, including any change in the Licence Fee or the Licensing Period. (Variation Notice).

(c) On receipt of a Variation Notice, the Licensee may terminate this agreement by giving notice to the Company within 15 days of receipt of the Variation Notice, with effect at the conclusion of the then-current Licensing Period.

(d) Subject to clause 2(e), the variation of this agreement set out in the Variation Notice will take effect on the Variation Date.

(e) If the Variation Notice includes a change in the Licence Fee, the revised Licence Fee will be payable for the next Licensing Period commencing after the Variation Date.

(f) If the Licensee receives a Variation Notice and does not terminate this agreement in accordance with clause 2(c), this agreement will continue for successive Licensing Periods in accordance with clause 2(a) and be otherwise subject to the terms and conditions of this agreement, as varied in accordance with the Variation Notice.

3. Platform Usage Right

3.1 Grant of Usage Right

(a) Subject to the payment of the Licence Fee by the Licensee, the Licensee is granted a limited, non-exclusive, non-transferable right to use the Platform for the sole purpose of receiving the Services for the Term (Usage Right).

(b) All other rights and licences not expressly granted to the Licensee by the Company are reserved by the Company.

3.2 Sub-licensing

The Usage Right cannot be assigned, exploited or sub-licensed by the Licensee without the Company’s prior written consent.

4. Services

4.1 Set-up Services

Upon receipt of payment of the Licence Fee, the Company will make the Platform available:

(a) as a webpage via a URL (Webpage); and

(b) as an application on the App Stores using an account set up on the App Stores by the Licensee (App).

4.2 Upgrades

(a) The Licensee acknowledges and agrees that the Company may upgrade or release a new version of the Platform:

(i) at its discretion, provided that such upgrade or new version does not, or is not reasonably expected to, result in the Platform overall being degraded or materially less efficient to the Licensee; or

(ii) as is necessary to meet the requirements of any applicable law or regulation.

(b) The Company may, from time to time, develop new features for the Platform and may, at its sole discretion, offer these new features to the Licensee for an additional fee.

4.3 Hosting

The Company shall manage the hosting of the Platform and any other associated domains belonging to the Company.

4.4 Security

The Company shall follow the security measures and processes set out below:

(a) the Platform shall be run in a cloud environment under the Company’s control;

(b) all user access to the Platform will be controlled by [Amazon Web Services (AWS) Identity, Access Management (IAM) Access and [Firebase hosting services];

(d) [all passwords will be hashed using bcrypt password-hashing function;]

(e) the Company will use reasonable precautions and security measures designed to ensure ongoing protection against Viruses and unauthorised access to the servers hosting the Platform; and

(f) the Company shall report all material system failures, material threats within or to the cloud environment and material breaches of the security of the cloud environment of the Platform, and any other material breaches or failures of the Platform that the Company is required by any applicable law to report to the Licensee (Negative Operational Events) to the Licensee in writing as soon as practically possible after becoming aware of these Negative Operational Events.

5. Third Party Software

(a) The Licensee acknowledges that the Platform may link to third party websites or feeds that are connected or relevant to the Platform. Any link from the Platform does not imply the Company’s endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, the liability of the Company for those websites or feeds is excluded.

(b) Through the use of web services and APIs, the Platform interoperates with a range of third party service features. The Company does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Company may cease to make available that feature to the Licensee. To avoid doubt, if the Company exercises its right to cease the availability of a third party feature for the reasons above, the Licensee is not entitled to any refund, discount or other compensation.

6. Fees and Invoicing

6.1 Payment of fees

(a) The Licensee must pay the Licence Fee to the Company prior to the commencement of each Licensing Period using the Payment Method.

(b) The Licensee must pay the fee specified by the Company for any In-Platform Purchases via the Payment Method prior to receipt of access to the In-Platform Purchases.

6.2 Sales Tax

(a) Unless otherwise expressly stated in this agreement or on the Webpage or App, prices or other sums payable or consideration to be provided under or in accordance with this agreement are exclusive of Sales Tax.

(b) If a party makes a taxable supply under or in connection with this agreement, the other party must pay to the supplier at the same time, and in addition to the Sales Tax exclusive consideration, an amount equal to the Sales Tax payable on that supply.

(c) The supplier must, as a precondition to the payment of Sales Tax under clause 6.2(b), give the other party a tax invoice.

(d) If an adjustment event arises in connection with a supply made under this agreement, the supplier must give the other party an adjustment note.

(e) If this agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable.

6.3 Non-payment

If the Licence Fee is not received prior to the commencement of the next Licensing Period the Company has the right, at any time and with immediate effect by notice in writing to the Licensee, to:

(a) suspend all Services (including any In-Platform Purchases);

(b) remove all Licensee Data from the Webpage and the App; and/or

7. Licensee Data

7.1 Licensee Data

(a) As between the Licensee and the Company, all Licensee Data is owned by the Licensee.

(b) The Licensee grants to the Company, and warrants that it has the right to grant to the Company, a limited, non-exclusive, non-transferable, royalty-free and revocable licence to use the Licensee Data for the Term to allow the Company to perform its obligations under this agreement.

7.2 De-identified Licensee Data

The Licensee grants to the Company, and warrants that it has the right to grant to the Company, a perpetual, non-exclusive, irrevocable, transferable and royalty-free licence to use, reproduce, edit, adapt and exploit the De-identified Licensee Data for:

(a) any purpose in connection with Company’s business (including the purpose of further development of the Platform and the Company’s other goods and services, and reporting); and

(b) general (non-Licensee specific) industry insights and reporting.

7.3 Privacy

(a) In providing the Services, the Company may deal with and the Platform may host Licensee Personal Information when, and for the purpose of, providing the Services under this agreement.

(b) The Licensee is responsible for obtaining all consents and permissions required, and satisfying all legal requirements:

(i) for it to collect, store and disclose to the Company or on the Platform the Licensee Personal Information for any purpose in connection with this agreement; and

(ii) to enable the Company to receive, host, disclose on the Platform and process Licensee Personal Information in accordance with this agreement.

(c) The Licensee acknowledges and agrees that to the extent that the Licensee Data contains Licensee Personal Information, in collecting, hosting and processing that information through the provision of the Services, the Company is acting as an agent of the Licensee for the purposes of applicable Privacy Laws.

(d) The Company must comply with its Privacy Policy when handling Licensee Personal Information.

7.4 Warranty

The Licensee warrants and represents that Licensee Data does not, and the Licensee providing Licensee Data to the Company does not, breach the privacy, confidentiality, or Intellectual Property Rights of any person at any time, or any applicable law or regulation.

8. Intellectual Property

8.1 The Company’s Intellectual Property Rights

(a) All Intellectual Property Rights in or subsisting in all information, materials, products and services developed or provided by the Company in connection with this agreement, including:

(i) the Platform, including:

(A) the source and object code;

(B) any Upgrades; and

(ii) all creative content, marketing materials, and documentation, (together, the Company IP) shall remain the sole and exclusive intellectual property of the Company or its licensors.

(b) To the extent, if any, that ownership of the Company IP does not automatically vest in the Company by virtue of this agreement or otherwise, the Licensee hereby transfers and assigns to the Company all rights, title and interest which it may have in and to the Company IP.

8.2 Feedback

If the Licensee provides the Company with ideas, comments or suggestions relating to the Platform (together Feedback):

(a) all Intellectual Property Rights in that feedback, and anything created as a result of Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Company; and

(b) the Company may use or disclose the Feedback for any purpose.

9. Warranties and Acknowledgements

9.1 Mutual representations and warranties

Each party represents and warrants to the other that:

(a) the execution and delivery of this agreement by it and the performance of its obligations will not breach any law to which it is subject, or breach any contract to which it is a party or by which it is bound; and

(b) it either has or will obtain all licences, permits, contracts or agreements which are required for it to perform its obligations under this agreement.

9.2 The Company’s warranties

The Company warrants that:

(a) to its knowledge, neither the Platform nor the use of the Platform by the Licensee as contemplated by this agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party;

(b) to its knowledge, no further authorisation is required to grant the Licensee the rights granted under this agreement; and

9.3 The Licensee’s warranties

The Licensee warrants that:

(a) to its knowledge, neither the Licensee IP nor the use of the Licensee IP in conjunction with the Platform as contemplated by this agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party;
(b) it will not:

(i) use the Services for any unlawful purpose;

(ii) allow any other person to access the Platform using the Licensee’s login credentials;

(iii) use the Services in any way that interrupts, damages, or impairs the Platform;

(iv) except to the extent expressly permitted by the Company, reproduce, modify, adapt or creative derivative works of the Platform;

(v) reverse engineer, disassemble, decompile, transfer, exchange or translate the Platform or otherwise seek to obtain or derive the source code of the Platform;

(vi) remove or tamper with any disclaimers or other legal notices published on the Platform; or

(vii) combine the whole or any part of the Platform with any other software, data or material;

(c) it holds, and at all times during the Term will hold, all licences, rights, interests and privileges necessary for the Licensee to provide real estate sale or leasing functions in respect of the purchase, sale, exchange, lease, assignment or other disposal of land (Real Estate Services) in all jurisdictions in which the Licensee provides Real Estate Services; and

(d) it will notify the Company immediately if there are any breaches of clauses 9.3(a) to clause 9.3(c) (inclusive).

9.4 Acknowledgments

The Licensee acknowledges and agrees that:

(a) the Company may, from time to time, publish or permit the publication of content on the Platform which is sponsored or commissioned by a third party (Sponsored Content) without any compensation to the Licensee, and the Licensee must not remove, or attempt to remove, any of the Sponsored Content;

(b) the Company does not warrant that the Platform and the Services will be uninterrupted, error-free or completely secure;

(d) the Company is not responsible or liable for monitoring or otherwise ensuring the integrity, completeness or accuracy of any of the Licensee Data.

10. Licensee’s obligations

10.1 Viruses

(a) The Licensee must not, and must procure that each other person under the Licensee’s direction or control does not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform:

(i) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(ii) that facilitates illegal activity; or

(iii) in a manner that is otherwise illegal or causes damage or injury to any person or property,

(b) The Company may, without liability or prejudice to its other rights against the Licensee, immediately suspend and/or

disable the Licensee’s access to the Platform if the Company reasonably believes the Licensee or any person under Licensee’s direction or control has breached this clause 10.1(a).

(c) If the Company suspends and/or disables the Licensee’s access to the Platform under clause 9.2(b), it will as soon as practically possible notify the Licensee of:

(i) the suspension or disablement;

(ii) the event that has given rise to that suspension and/or disablement;

(iii) what investigations as to the event are being carried out; and

(iv) the conditions before, and the likely timing by which, the Licensee may re-access the Platform.

10.2 No unauthorised access

(a) The Licensee will use all prudent and reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, immediately notify the Company.

(b) If the Licensee is a corporate entity, it must not permit an individual who is not an employee of the Licensee to use the Platform.

10.3 Access conditions

When accessing the Platform, the Licensee must:

(a) not impersonate another person or misrepresent authorisation to act on behalf of others or the Company;

(b) correctly identify the sender of all electronic transmissions;

(d) not use, or misuse, the Platform in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Platform;

(e) not attempt to view, access or copy any material or data other than that to which the Licensee is authorised to access;

(f) use the Platform in a manner, nor transmit, input or store any Licensee Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is incorrect or misleading; and

(g) comply with any terms of use on the Website, as updated from time to time by the Company.

11. Confidentiality

11.1 Obligations

A party (Recipient) may not disclose, divulge or release any Confidential Information of the other party (Discloser) to any third party without the prior written consent of the Discloser, nor will the Recipient use any Confidential Information of the Discloser for any purpose other than exercising a right or fulfilling an obligation under this agreement.

11.2 Disclosure

The Recipient may disclose the Confidential Information of the Discloser to its officers, employees and contractors, solely for the purposes of performing or receiving the Services under this agreement.

11.3 Exceptions

The obligations under this clause 11 do not apply in respect of:

(a) information which is generally known to the public other than as a result of a breach of this agreement;

(b) information which that Recipient can prove was legitimately known to it independently of this agreement; or
(c) information of the Discloser which the Recipient is required to disclose where:

(i) the disclosure is required to be made by law. If disclosure is required by law, prior to making the disclosure the Recipient must notify the Discloser within ten days (or if the Recipient is required by law to make the disclosure within a lesser period, such lesser period) of that fact and give the Discloser the opportunity to object to the disclosure; or

(ii) the disclosure is made to a professional legal adviser or professional auditor under a duty of confidentiality to the Recipient.

11.4 Return or destruction of all Confidential Information

(a) The Recipient must, on the Discloser’s written demand or on the expiration or termination of this agreement, whichever occurs first, return to the Discloser or destroy (at the option of the Discloser) any documents or other media in the Recipient’s possession, power or control containing any of the Discloser’s Confidential Information.

(b) To avoid doubt, clause 11.4(a) does not require the Company to return or destroy any Confidential Information contained in back-up copies of Licensee Data to the extent that the Company is required to retain such Licensee Data.

12. Platform use

12.1 Community Rules

(a) The Licensee must comply with the Community Rules.

(b) If the Licensee commits a breach of the Community Rules, the Company may (in its sole discretion):

(i) immediately suspend the Licensee’s Usage Right; or

(ii) terminate this agreement with immediate effect.

(c) The Licensee must indemnify the Company against, and pay on demand, all Losses suffered or incurred by the Company or any of its officers, employees, agents or related bodies corporate arising out of or in connection with the Licensee’s breach of the Community Rules.

12.2 Other users

The Licensee acknowledges and agrees that the Company expressly disclaims liability for all Losses suffered or incurred by the Licensee, any of the Licensee’s clients or any other person arising out of or in connection with the behaviour of another user of the Platform.

13. Suspension of Services

The Company may, upon written notice to the Licensee, suspend the provision of all or part of the Services, including access to the Platform, without liability to the Licensee, if:

(a) the Licensee is in material breach of any other obligation under this agreement; or

(b) the Company is required to do so by law.

14. Termination

14.1 Termination for convenience

Either party may terminate this agreement at its convenience by providing notice to the other party, with effect at the end of the then-current Licensing Period.

14.2 Termination for breach

A party (Non-Defaulting Party) may terminate this agreement at any time during the Term by written notice upon the expiration of five Business Days where the other party (Defaulting Party) commits a material breach of this agreement and:

(a) the breach cannot be remedied; or

(b) where the breach can be remedied, the Defaulting Party fails to remedy the breach within 5 Business Days of being notified in writing of the breach by the Non-Defaulting Party.

14.3 Termination for insolvency

Either party may terminate this agreement immediately by written notice if the other party suffers an Insolvency Event.

14.4 Effects of termination

Upon termination of this agreement, the Usage Right is automatically revoked and the Licensee must immediately pay any outstanding invoices issued by the Company.

14.5 Without prejudice

The rights of termination conferred by the provisions of this clause are without prejudice to any right of action or remedy of a party in respect of any breach of any term of this agreement.

15. Indemnity

15.1 Indemnity

Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against, and must pay on demand, all Losses suffered or incurred by the Indemnified Party or any of its officers, employees, agents or related bodies corporate arising out of or in connection with:

(a) a wilful, unlawful or negligent act or omission by the Indemnifying Party;

(b) a breach of law by the Indemnifying Party;

(d) a breach of the confidentiality obligations in clause 11.1 by the Indemnifying Party,

except if and to the extent that such Losses were caused by or contributed to by the act or omission of the Indemnified Party or any of its officers, employees, agents or related bodies corporate.

15.2 Survival

The indemnities in this clause survive the termination of this agreement.

16. Limitation of Liability

16.1 Consumer guarantees

If the Licensee is a “consumer” under the Australian Consumer Law, the Services come with consumer guarantees under the Australian Consumer Law that cannot be excluded by this agreement. Nothing in this agreement affects the Licensee’s statutory rights as a consumer.

16.2 Limited liability

To the maximum extent permitted by law and subject to clause 16.1, unless otherwise expressly provided in this agreement, the Company’s liability for Losses incurred by the Licensee arising out of or in connection with this agreement (whether in contract, tort (including negligence), statute or otherwise) is limited, in aggregate, to the total of the Fees paid by the Licensee to the Company in the six month period immediately preceding the event giving rise to the Loss.

16.3 Exclusions

(a) To the fullest extent permitted by law, subject to clause 16.1, and except as expressly provided in this agreement, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise, relating to the Services are excluded.

(b) The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between the Company and the Licensee by law including liability under the Australian Consumer Law. However, where such statutory provisions apply, to the extent to which the Company is entitled to do so and subject to clause 16.1, the Company’s liability will be limited at its option to:
(i) in the case of a supply of goods:
(A) the replacement of the goods or supply of equivalent goods;
(B) the payment of the cost of replacing the goods or acquiring equivalent goods;
(C) the payment of the cost of having the goods repaired; or
(D) the repair of the goods; and
(ii) in the case of services:
(A) the supply of the services again; or
(B) the payment of the cost of having the services supplied again.
(c) To the fullest extent permitted by law, the Company is not liable to the Licensee, whether in contract, tort (including negligence), statute or otherwise, in connection with any right or remedy conferred on the Licensee by law, or any liability of the Company to the Licensee as a result of or in connection with this agreement:

(i) for any Loss to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any Loss beyond the normal measure and beyond that which every plaintiff in a like situation would suffer; or

(ii) for any loss of revenue or profits of any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation (whether direct or consequential),
although this limitation will not apply if and to the extent that the Company is also liable for that loss caused by its breach of the consumer guarantees under the Australian Consumer Law.

16.4 Acknowledgments

The Licensee acknowledges that, to the fullest extent permitted by law, the Licensee accepts all liability as a result of the Services, except to the extent that such liability is caused by a defective performance by the Company of the Services.

17. Policies

(a) The Licensee must comply with any polices of the Company notified by the Company to the Licensee from time to time, including the Referral Policy and the Community Rules (Company Policies).

(b) The breach of a Company Policy by the Licensee will constitute a breach of this agreement by the Licensee.

18. Force Majeure

A party will not be liable or deemed to be in default for any failure or delay of performance (other than making a payment) under this agreement caused by a Force Majeure Event, provided always that the party whose performance is affected by such Force Majeure Event must promptly give written notice of such Force Majeure Event to the other party, specifying the obligations it cannot perform, fully describing the Force Majeure Event and estimating the time during which the Force Majeure Event will continue.

19. Notices

19.1 Service of notices

A notice, demand, consent, approval or communication under this agreement (Notice) must be in legible writing and in English addressed as shown below:

(a) if to the Company:

Address: 406/57 Upper Pitt Street, Kirribilli, 2061, NSW
Attention: Tom Reddaway
Email: [email protected] ;

(b) if to the Licensee, must be addressed to the Licensee at the email address or physical address (if any) provided by the Licensee to the Company.

19.2 Effective on receipt

A Notice given in accordance with clause 19.1 takes effect when received (or at a later time specified in it), and is taken to be received:

(a) if hand delivered or left at the recipient’s address, on delivery;

(b) if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia); and

(c) if sent by email, upon receipt by the recipient email server (even if received or categorised or filtered as unwanted email or spam), if sent as an email, unless the sender receives an automated notice that delivery has failed,
but if the delivery or transmission under paragraph (a) or (c) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours after that delivery, receipt or transmission.

19.3 Process service

Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this agreement may be served by any method contemplated by this clause in addition to any means authorised by law.

20. General

20.1 Alterations

Subject to clause 2(b), this agreement may be altered only in writing signed by each party.

20.2 Approvals and consents

Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.

20.3 Assignment

A party may only assign this agreement or a right under this agreement with the prior written consent of each other party.

20.4 Counterparts

This agreement may be executed in counterparts. All executed counterparts constitute one document. This agreement may be executed by either of the parties by duly executing a counterpart and forwarding a copy of the signed counterpart to the other party.

20.5 Costs

The parties agree that each party shall bear its own costs in relation to, and associated with, this agreement.

20.6 No merger

Except where this agreement expressly states otherwise, the rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.

20.7 Entire agreement

This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

20.8 Further action

Each party must do, at its own expense, everything reasonably necessary to give full effect to this agreement and the transactions contemplated by it (including executing documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.

20.9 Severability

If the whole or any part of a provision of this agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

20.10 Enforcement of indemnities

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.

20.11 Survival

Any indemnity or obligation of confidentiality in this agreement is independent and survives termination of this agreement. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.

20.12 Attorneys

Each person who executed this agreement on behalf of a party declares that he or she has no notice of the revocation or suspension by the grantor or in any other manner of the power of attorney under the authority of which he or she executes this agreement.

20.13 Waiver

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

20.14 Relationship

This agreement does not create a relationship of employment, trust, agency or partnership between the parties.

20.15 Remedies cumulative

The rights provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.

20.16 Governing law

(a) This agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales.
(b) If the Licensee is based in Australia, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to the courts of New South Wales.
(c) If the Licensee is not based in Australia, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the ACICA Rules, and the ACICA Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat of arbitration shall be Sydney, Australia. The language to be used in the arbitral proceedings shall be English.
(d) Nothing in this clause 20.16 will limit a party seeking interim, injunctive, preservative, declaratory, urgent or similar relief from applying to the courts of New South Wales or any other courts with jurisdiction to hear such application.

20.17 Exercise of rights

A party may exercise a right, at its discretion and separately or concurrently with another right.