Terms & Conditions
General Terms and Conditions
CURRENT AT 11 May 2015
THESE TERMS AND CONDITIONS APPLY TO ALL CUSTOMERS USING OUR PRODUCTS EXCEPT WHERE SPECIFIED BELOW. BY ACCESSING AND USING OUR PRODUCTS YOU AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATIONS
1.1 In this agreement unless the context otherwise requires, the following words will have the meaning set out hereunder:
Account Administrator means an authorised representative of the Customer as set out in the Product Schedule who has authority to represent the Customer in accordance with clause 6.1.
Agreement means this Products Agreement which comprises these General Terms and Conditions, any Product Terms which may apply and the Product Schedule provided to the Customer separately in either hard or soft copy.
Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Customer before, on or after the date of this Agreement, relating to the
Products, Product information services or the business, technology or other affairs of the Company, including any Intellectual Property Rights, data (including Product Data), programs or algorithms, but does not include the Excluded Information (to
the extent relevant):
Consequential Loss means any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss or damage to or corruption of data, loss of goodwill, loss of reputation or for any special or indirect
loss, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.
Company means PropertyIQ Pty Limited (ACN 603 672 975)
Customer has the meaning set forth in Product Schedule and includes the agents and employees of the Customer.
Customer Materials means any and all data, information, content, photographs, metadata and other materials provided or that may be supplied to the Company by the Customer (or otherwise obtained by the Company from the Customer) in accordance
with clause 7 of these terms and conditions, directly or indirectly, from time to time, including any content posted or entered into any Product from time to time and includes Property Attribute Data, the Property Description Data and the Suburb Description
Data but excludes any Personal Information.
Direct Marketing means using Personal Information to identify, target or filter and then directly market products or services to an identified individual or group of individuals (whether or not addressed to that individual by name),
by means, normally supported by a database, which uses one or more advertising media to affect a measurable response and or transaction from a person and includes, but is not limited to, telemarketing, bulk email messaging, postal canvassing and list
Effective Date means date and time that the customer clicks “I accept these terms and conditions” when first accessing the Product or the date of execution of a Product Schedule, or the date the customer completes an online Product
Schedule and requests access to a Product (whichever is earlier).
Excluded Information means Confidential Information which:
- is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed to the Company;
- is the Property Attribute Data, Property Description Data and Suburb Description Data;
- the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by the Company (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
- the Customer acquires from a source other than the Company where such source is entitled to disclose it.
GST has the meaning given to that term under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Period has the meaning set forth in clause 2.
Insolvent means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases
conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world including current and future registered and unregistered rights in respect of trade marks, copyright, source-code, databases, Product
Data, circuit layouts, designs, patents, inventions and discoveries, trade secrets, know-how and confidential information and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation
1967 and Intellectual Property has the corresponding meaning.
Law means common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments
or replacements of any of them).
Listing and Sales Data means all of the Customer’s for sale and for rent listings property data (including property address details, listing date and listing price, sale date and sale price).
Loss means all liabilities, losses, damages, outgoings, costs and expenses (including legal costs assessed on a Solicitor-client basis).
Modifications means any modifications, upgrades or developments of any Software Product provided by the Company.
Moral Rights means any moral rights including the rights described in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended and revised from time to time), being “droit moral” or other analogous
rights arising under any statute (including the Copyright Act 1968 (Cth) or any other law), that exist or that may come to exist, anywhere in the world.
Office means a location that the Customer advertises or conducts business from, as identified in the Product Schedule. Unless excluded elsewhere, the Customer needs to license every Office from which the Products will be used. An Office includes mobile devices of the Customer’s users who normally operate from the nominated office location.
Party and Parties means the Company and the Customer.
Permitted Purpose means the specified purposes for which the Products may be used by the Customer as specified in this Agreement.
Personal Information means information or an 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 material form or not.
Privacy Act means the Privacy Act 1988 (Cth) as amended or updated from time to time.
Products means those property software products or services listed as such on a Product Schedule.
Product Data means any results, data or metadata, including any property information, property attribute data, ownership information, property sales information, photographs, valuation, market share analyses, index results, alerts,
or reports, which is either contained within, provided through, derived from, captured by, entered into or generated by the Products or services provided by PropertyIQ (including any platforms) or its suppliers or as otherwise provided in the usual
course of business by PropertyIQ or its Related Bodies Corporate.
Product Schedule means the schedule provided to the Customer separately in either hard or soft copy executed by or on behalf of the Customer which contains the Product identity and description, the fees payable and other material terms of the Agreement.
Product Subscription Fees has the meaning set forth on the Product Schedule.
Product Terms means the terms and conditions set out below which specifically apply to a particular Product, including PropertyIQ Connect Terms, PropertyIQ Strata Terms, PropertyIQ Portfolio Terms.
Properties under management means the active properties in the PropertyIQ Portfolio database.
Property Attribute Data means factual information relating to the physical characteristics of a real property including, but not limited to, internal features such as living area, number of bedrooms, bathrooms and floor levels, number
of car spaces and type; external features such as construction type and materials, roof type, land size, property aspect, land and yard features; property improvements, such as pool; and year built or renovated and excludes any Personal Information.
Property Description Data means factual information relating to the description of a real property including, but not limited to, lot and plan information, title reference or other legal description for a property, land and building
area, zoning information and mapping information.
Renewal Period has the meaning set forth in clause 2.
Related Body Corporate has the meaning given to that term under the Corporations Act 2001 (Cth).
Software means the software Product listed as such on the Product Schedule.
Software Products means PropertyIQ Strata, PropertyIQ Connect, PropertyIQ Portfolio and other Software Products developed or released by the Company from time to time.
Suburb Description Data means factual information relating to the suburb location of a real property, including, but not limited to, suburb location and suburb ratings.
System Requirements means the document of the same name published by the Company at the Company’s Website, as updated and updated from time to time, and which sets out the hardware, operating systems and software requirements for the
effective utilisation of the Software within the Customer’s environment.
Territory means Australia and New Zealand.
Transactional Product Charges has the meaning set forth in the Product Schedule.
1.2 User means each person who accesses the Software Product through the Customer’s log in.The headings in this Agreement are for convenience of reference only and will not affect the interpretation hereof. The words “include” and “including”
when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind. A clause or Schedule is a reference to a clause or Schedule to this Agreement. Words importing the singular
number will include the plural and vice versa, and words importing the masculine gender include all other genders.
2.1 This Agreement will commence on the Effective Date and will continue for the Minimum Period set forth on the Product Schedule (the Initial Period); thereafter, this Agreement will automatically renew for subsequent periods of one (1)
year renewal periods (each, a Renewal Period) unless a Party gives the other Party notice of its intent to not renew at least ninety (90) days prior to the end of the Initial Period. Following the Initial Period, the Customer will
have the right to terminate this Agreement in accordance with clause 15.
3. LICENSE AND RESTRICTIONS
3.1 Subject to the terms of this Agreement and the Customer’s performance of its obligations, the Company hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable limited license during the Initial Period and each Renewal Period
(if any) to access and use the Products and the Product Data in the Territory, within the Customer’s enterprise only and solely for the Customer’s internal business purposes in the Territory.
3.2 This licence extends to any corrections and updates supplied by the Company or its suppliers for any Software or any Product Data.
3.3 Each Product is licensed for use only at the particular Offices listed in the Product Schedule. The Customer acknowledges that the licence granted by this Agreement is limited only to the Office or Offices listed in the Product Schedule and the Customer agrees that it shall not disseminate or access the system from that Office or Offices and/or access the system from other office locations not listed in the Product Schedule without having first obtained written consent of the Company to do so, except that the Customer is permitted to
access any mobile enabled Product from any mobile device belonging to the Customer. The parties agree that the licence granted under this Agreement will cease immediately upon the termination of this Agreement.
3.4 In circumstances where Products are installed on the Customer’s local system or in an environment not managed by the Company, the Customer may only make so many copies of the Software or any Product Data as are necessary for operational back up and
3.5 Notwithstanding anything to the contrary in this Agreement, except as and then only to the extent expressly permitted in the Product Schedule, the Customer must only allow or permit its employees to use the Products or the Product Data (or other Confidential Information) and the Customer agrees that it will not permit or allow any person to access or use the Products or the Product Data (or other Confidential Information) unless they are employed by the customer without having first obtained express
prior written consent of the Company to do so.
3.6The Customer agrees not to use the Products or the Product Data except as in accordance with the licence granted to the Customer as set out in these General Terms and Conditions and any applicable Product Terms below.
3.7 The Customer acknowledges and agrees to use the Products and the Product Data solely for the Permitted Purpose and in accordance with all Laws.
3.8 Except as expressly permitted under this Agreement or to the extent permitted by Law, the Customer and its employees and representatives must not, or encourage any person or entity to:
- decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the Products, including any source code, object code, algorithms, methods or techniques used or embodied therein;
- data mine, scrape, crawl, email harvest or use any process or processes that send automated queries to the Products or any Product Data;
- reproduce, copy, publish, distribute, disclose or otherwise communicate to the public the Products or any Product Data in any way other than in accordance with this Agreement;
- modify, adapt or incorporate any part of the Products or Product Data into any other material, product, service or database or create any derivative works based upon the Products or the Product Data without the Company’s prior written consent;
- resell, distribute, market, lease, assign, sublicense, transfer or otherwise commercially exploit any right title or interest in any part of the Products or any Product Data to any third party, or use the Products or any Product Data on behalf of
or for the benefit of any third party other than in accordance with this Agreement;
- use the Products in a manner which interferes with the privacy of an individual or otherwise breaching the Privacy Act as more specifically set out in clause 17.
- remove or alter any registered or unregistered trademark, logo, copyright notice or other proprietary notice appearing on or in the Products or any Product Data;
4. INSTALLATION, IMPLEMENTATION AND SUPPORT OF SOFTWARE PRODUCTS
4.1 The Customer acknowledges and agrees that it has read, understood and agrees to comply with the System Requirements as published and updated from time to time at the Company’s Website.
4.2 Where the Software is to be hosted on the Customer’s system, the Company will install the Software on the Customer’s network in conjunction with the Customer’s preferred technical service provider (if possible). If the Customer’s network, hardware or software configuration does not comply with the System Requirements at the date or time of installation by the Company of the Software, additional fees may be charged to the Customer as a result of the Company having to undertake further installation work.
4.3 If the Software is hosted by (or on behalf of) the Company, unless otherwise agreed in the Product Schedule, the Customer will access the Products via the Company’s Web Site.
4.4 The Company will provide the Customer with help desk support for the Software during business hours to be advised by the Company from time to time. Any further training or consulting required by the Customer will incur additional fees.
4.5 Any implementation fees payable as a result of the Company installing the software for the Customer, will be itemised on the Product Schedule and will be due and payable within 7 days of the Effective Date.
4.6 All monthly licence fees will be invoiced in accordance with any Product Schedule and will commence:
- when the Software is installed; or
- when any login details are provided by the Company to the Customer to access the Software; or
- upon 45 days of the Customer’s execution of this Agreement
whichever occurs first.
4.7 The fees are calculated in accordance with the Product Schedule. All Product Subscription Fees will be billed in accordance with the Product Schedule monthly in advance. All Transactional Product Charges are calculated by reference to the number of Users, Offices, properties, Lots, or other variables consumed by the Customer and are billed monthly in arrears in accordance with the fees set out in the Product Schedule or otherwise advised from time to time by the Company.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 The Customer acknowledges and agrees that,
- as between the Company and the Customer, the Company or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Products, including any and all creations, inventions and
Intellectual Property Rights contained or embodied within the Products and the Product Data;
- it acquires no rights in or to the Products or the Product Data provided pursuant to this Agreement except for the limited license set forth in clause 3;
- it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Company’s and its service providers’ ownership of the Products or the Product Data, or the creations, inventions and Intellectual
Property Rights contained or embodied within the Products and the Product Data;
- it will not make copies (other than for back-up or disaster recovery purposes) or derivative works of the Products and the Product Data; and
- all other uses of the Products and the Product Data not expressly addressed in this Agreement are strictly prohibited.
6. PRODUCT ACCESS AND CHANGES
6.1 The Customer agrees to appoint an Account Administrator as nominated in the Product Schedule who is an authorised representatives of the Customer and who the Customer represents and warrants has actual authority to act on behalf of the Customer:
- to establish, re-set, remove, add and maintain any identification username and passwords for the Customer’s users;
- to install the Product on the Customer’s network or the computers in accordance with the Product Terms; and
- in relation to any variations, extension or amendments to this Agreement.
6.2 The Customer will access the Products in the manner set out in the applicable Product Terms set out below. The Customer acknowledges and agrees that, in the event that the Company provides the Customer with any account, identification numbers and/or
- bears sole responsibility for protecting all identification numbers and passwords;
- will not provide such identification numbers and passwords to any third party;
- will remain fully responsible and liable for any authorised or unauthorised use of any identification numbers and passwords;
- will for security purposes change such identification and passwords periodically or as directed by the Company from time to time.
6.3 The Company reserves the right to change or refine or withdraw the features and functionality of any Product, provided that the Products will at all times retain those basic features described on the Product Schedule or within the Product’s Terms and Conditions.
6.4 The Customer acknowledges that the Company will not be obliged to provide access to any Product to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.
6.5 The Customer will be fully responsible and liable for any act or omission of any of its employees or agents.
7. CUSTOMER MATERIALS
7.1 The Customer may from time to time provide or otherwise make available to the Company the Customer Materials in accordance with the terms in this clause 7.By using the Product, you consent to the transmission of this information in accordance with
the terms in this clause 7.
7.2 The Customer hereby grants the Company and its shareholders and service providers a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of, and otherwise commercialize, the Customer Materials limited to:
- the Property Attribute Data;
- the Property Description Data;
- the Suburb Description Data; and
- where the Customer has indicated it will provide the Company with Listings and Sales Data (such as in any Product Schedule), the Listings and Sales Data.
7.3 which may be entered into the Product or derived from the Product by the Customer. The Company from time to time may require the Customer to grant the Company a licence to use further Customer Materials in order to enhance the Product, the Company’s or its shareholders’ Products or the Customer’s use of the Product (Enhanced Customer Materials Licence), in which case the Company will either notify the Customer of the enhancement of the Customer Materials Licence or request the Customer to ‘opt-in’ or provide its consent to participate in enhancements to new features of the Products, or to provide the Enhanced Customer Materials Licence.
7.4 The Customer represents and warrants to the Company, its service providers and its shareholders that it has the right to grant the foregoing licenses in and to the Customer Materials; that the Customer Materials do not and shall not infringe upon or misappropriate any rights, including, without limitation, intellectual property rights, of any third parties or the Company and its service providers; and that such Customer Materials are free of worms, viruses, Trojan Horses, and other disabling code.
7.5 The Customer represents and warrants to the Company that it will abide by all applicable laws, rules and regulations for any Customer Material posted to the Company’s website or entered into the Product itself. The Company does not endorse, support, represent or guarantee the truthfulness, accuracy or reliability of any Customer Materials posted to the Company’s website or entered into the Product itself, including any opinions expressed within any Customer Materials. Any reliance upon the content or opinion expressed in the Customer Materials will be at the Customer’s own risk.
7.6 The Company reserves the rights to remove or refuse to distribute or publish any Customer Materials which violates the terms of this Agreement.
8.1 The Customer will pay the Company the fees in accordance with the Product Schedule. All such fees, when paid, are non-refundable, even if the Customer stops using the Products for any reason.
8.2 Except as expressly provided for in the Product Schedule, all Products are GST exclusive. If provision of the Products under this Agreement is subject to GST, the Customer must pay to the Company an additional amount equal to the relevant fee multiplied by the applicable GST rate. Such additional amount is payable at the same time as the related fee. When executed, this Agreement shall constitute a tax invoice.
8.3 The Company may at its discretion increase the fees for or during any Renewal Period, by providing the Customer with written notice of its intention to do so at least thirty (30) days prior to the application of the fee increase. Notwithstanding clause 2, upon receiving a notice of a fee increase from the Company, the Customer will have the right to elect to terminate this Agreement, by providing the Company with written notice of its intention to do so within thirty (30) days of its receipt of the Company’s written notice of fee increase.
8.4 Any amounts not paid to the Company when due will be subject to interest equal to ten per cent (10%) per annum, calculated on a daily basis.
9. LIMITED WARRANTY
9.1 The Company hereby represents and warrants that:
- the Products will have those features described in the Product Schedule or within any applicable Product Terms
- that it will use commercially reasonable efforts to ensure that the Products are accessible in accordance with these General Terms and Conditions and any Product Terms; and
- that the Products will meet the Service Level Agreement that is published on the Company’s Web site from time to time at www.propertyiq.com.au.
In the event of any breach of this warranty, the Customer agrees, as the Company’s and its service providers’ sole and exclusive obligation and the Customer’s sole and exclusive remedy, to use commercially reasonable efforts to modify, correct or provide
access to the relevant Product.
9.2 The warranty set forth in clause 1 is in lieu of any other warranties, and to the fullest extent permitted by Law (subject to clause 9.3), all other warranties are hereby excluded, and the Company and its service providers hereby expressly disclaim
- that the Products or any Product Data will meet the Customer’s requirements;
- that the Products or Product Data are fit for the Customer’s purpose or are otherwise suitable for the Customer’s use;
- that the Products or Product Data will be compatible with, or suitable for use with, the Customer’s software or IT systems;
- that the statistical methods on which any of the Products or Product Data are based use appropriate or accurate assumptions;
- that the performance of the Products will not be affected by data entry errors, or errors made by the Company’s staff or service providers in the Customer’s production environment of a Product including incorrect entries, double entries or delayed
entries, or incorrect or untimely data supplied by Company’s third party suppliers;
- that the Products or any Product Data, will be error-free, correct, accurate, complete, reliable, secure, current, up-to-date or otherwise;
- if the Products are software installed by the Company, that the software will be secure, timely, uninterrupted or error-free, will operate in combination with any other hardware, software, system or data, or will meet the Customer’s requirements or
- that any data stored by the Company will be accurate, reliable or secure;
- that errors or defects will be corrected, however the Company will endeavour to correct errors within a reasonable time;
- that the Products will be free of viruses or other harmful components.
9.3 Notwithstanding clause 9 of the General Terms and Conditions, the Company warrants that if the Customer follows the instructions and meets the System Requirements, the Software will perform substantially as described in the materials that the Company provides in or with the Software.
9.4 Except to the extent specified to the contrary in this Agreement and the Service Level Agreement published on the Company’s Web Site, the Company will not be obliged to support the Software, whether by providing advice, training, error correction, modifications, updates, new releases or enhancements or otherwise. The Company reserves the right to carry out Modifications to the Software Products from time to time.
9.5 Notwithstanding any other provisions of this Agreement, the Company will not be liable for any error or defect in the Software or Products, or any delay, to the extent that such error, defect, failure or delay occurs as a result of:
- any default of the Customer or its agents, employees or contractors;
- any failure on the part of the Customer to meet the System Requirements; or
- any failure due to a hardware fault provided such hardware fault is not caused by or in the reasonable control of the Company or its employees, agents or sub-contractors.
9.6 To the extent that the Competition and Consumer Act 2010 (Cth) implies any warranties under this Agreement, then the Company’s and its service providers’ liability in respect of such implied warranty is limited:
- in the case of goods, to any one or more of the following (as the Company and its service providers may in their discretion determine):
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- in the case of services, to any one of the following (as the Company and its service providers may in their discretion determine):
- the supplying of the services again; or
- the payment of the cost of having the services supplied again, except as expressly provided elsewhere in this Agreement.
9.7 The Products and the Product Data, including, without limitation, any information, data, prices, and quotations contained therein, are subject to change without notice, except as otherwise expressly provided herein, the Products and the Product Data are provided to the customer on an “as is, as available” basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for particular purposes, title, non-infringement, security, availability, accuracy, or otherwise.
9.8 The Customer acknowledges that it has read, understands and accepts and agrees to the additional terms, conditions and limitations of the Company’s suppliers set forth on the Product Terms and the Product Schedule, if any.
10. LIMITATION OF LIABILITY
10.1 To the maximum extent permitted by Law, in no event will the Company’s and its service providers’ aggregate liability to the Customer exceed the amount of fees actually paid by the Customer to the Company under this Agreement in the last 12 months.
10.2 To the maximum extent permitted by Law, in no event will the Company and its service providers be liable for any Consequential Loss of any kind.
10.3 The Customer assumes the risk in using the Products and the Product Data as well as total responsibility for establishing such procedures for data backup (in circumstances where Products are installed on the Customer’s local system or in an environment not managed by the Company) and virus checking as the Customer considers necessary.
10.4 The Company has no liability whatsoever to the Customer, the Customer’s Representatives or any other person, for:
- acts and omissions of, or any faults or defect in the Products or Product Data caused by any third party;
- faults or defects in the Products or Product Data which are caused by the Customer, including any failure to comply with the Customer’s obligations under this Agreement;
- any delay, faults, failure, interruption or defects that arise in telecommunication systems or other services provided to the Customer by a third party (even if they are connected and used by the Company during the operation of this Agreement with the Company’s consent); and
- the Customer’s inability to access or use any Product for any reason.
11. COMPANY INDEMNIFICATION
11. 1 The Company will defend, or at its option settle, any third party claim or suit brought against the Customer on the basis that the Customer’s use of the Products as permitted under this Agreement, infringes any of such party’s Australian patents or copyrights, and will pay any final judgment entered against the Customer or any settlement of such claim or suit. The Company’s foregoing obligations are subject to the following conditions:
- the Customer promptly notifies the Company in writing of any allegation of infringement, and fully cooperates with the Company, at the Company’s reasonable cost, in the defence or settlement of such claim or suit;
- the Customer makes no admissions;
- the Customer at the Company’s request allows the Company or its assignee to solely conduct and/or settle all negotiations and litigations; and
- any costs incurred and recovered in such negotiations and litigation will be to the account of the Company and/or its assignee.
11.2 The Company’s obligations under clause 1:
- will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim based upon use of any Products or any Product Data in combination with any equipment, services, data, algorithms, models,
indices, tools and/or products not supplied by the Company or its service providers, if the alleged infringement would not have occurred but for such use;
- will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim relating to the Customer Materials, including the Company’s and its service providers’ use of Customer Materials as permitted
under this Agreement; and
- are limited as to quantum as set out in clause 1.
11.3 If at any time all or any part of the Products or the Product Data is, or in the Company’s opinion may become, subject of any claim or suit for any infringement, the Company may at its own expense and option modify or replace the affected Product or Product Data so that it is non-infringing, or obtain for the Customer the right to continue using the affected Product or Product Data. If neither of foregoing options is in the Company’s opinion commercially reasonable, the Company will have the right to terminate this Agreement with immediate effect after which time the Customer’s use of the affected Product or Product Data is at the Customer’s sole risk.
12. CUSTOMER INDEMNITY
12.1 The Customer will indemnify and hold the Company and its service providers harmless from any third party claim or suit brought against and its service providers on the basis of any breach by the Customer of this Agreement (or any act which, if true, would be a breach of this Agreement) or any use or reliance by the Customer of or on any Product or Product Data or any representations or promises made by or for the Customer to others due to or based on any Product or Product Data, and will pay any final judgment entered against the Company and its service providers or any settlement of such claim or suit and any costs incurred and recovered in such negotiations and litigation will be to the account of the Customer.
12.2 The Customer will indemnify and hold the Company and its service providers harmless from any claim based upon use of any Product Data in combination with any equipment, services, data, algorithms, models, indices, tools and/or products not supplied by the Company or its service providers, if the alleged infringement would not have occurred but for such use.
13. PROPER RECORDS, RIGHT TO INSPECT AND AUDIT
Without limiting any of the other terms of this Agreement:
13.1 The Customer will follow all reasonable instructions the Company gives from time to time with regard to the use of the Products and Product Data.
13.2 The Customer permits the Company at all reasonable times to check that the Products and the Product Data are being used in accordance with the terms of this Agreement, and for such purposes the Customer must maintain complete and accurate records of the Customer’s use of the Products and the Product Data.
13.3 The Customer expressly acknowledges that the Company has entered into various licensing agreements for ongoing use of data and software with various suppliers and as such the Company has undertaken certain contractual obligations. To assist the Company in meeting these obligations the Customer agrees to comply with and/or accept responsibility for all of the Company’s obligations expressed or implied in such supplier agreements including:
- granting the Company and its suppliers the right to inspect and/or audit the Customer’s records and/or system in order to audit the Customer’s use of the Products or Product Data including any records kept at the Customer’s premises; and
- cooperating with any investigation concerning the use by the Customer of the Product or Product Data.
14.1 No Confidential Information may be disclosed by the Customer to any person or entity except:
- employees of the Customer Agreement who:
- are aware of the confidentiality obligations imposed in this clause 14; and
- have entered into written confidentiality agreements with the Customer which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 14;
- to the extent the Customer is required to do so by Law; or
- to the extent the Customer is required to do so in connection with legal proceedings relating to this Agreement.
14.2 The Customer must not use Confidential Information except for the purpose of exercising its rights or performing its obligations under this Agreement.
14.3 Clauses 1 and 14.2 and do not apply to Excluded Information.
14.4 Notwithstanding clauses 1 and 14.2, the Customer may disclose parts of the Product Data, or conclusions or summaries of information based on the Product Data, provided that the Customer has first obtained the Company’s prior written consent for such disclosure and the Customer gives the Company credit as the source for the underlying data in a manner reasonably instructed by the Company.
14.5 The Customer will take any action that is necessary to prevent or remedy any breach of the Customer’s confidentiality obligations or other unauthorized disclosure of Confidential Information.
14.6 The Customer acknowledges that due to the unique nature of the Confidential Information, any breach by the Customer of its obligations under this clause 14 would result in irreparable harm to the Company and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Company and its service providers will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Company and its service providers may have at Law
14.7 The Customer will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.
14.8 The Customer may not make press or other announcements or releases relating to this Agreement and the transactions that are the subject of this Agreement without the Company’s prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by Law or by a stock exchange with which the Customer is listed.
14.9 The Company will not retain, use or exploit any of Customer Confidential Information (including any Personal Information entered by the Customer) for any purpose other than to facilitate the Customer’s use of the Software Product. This clause survives termination.
14.10 Except as otherwise agreed or duly required by Law or any regulatory authority, no Party will disclose the terms of this Agreement to any person or entity other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
15. BREACH AND TERMINATION
15.1 In the event that the Customer (or its agents or employees) breaches any term of this Agreement, the Company may, at its election, do one or any of the following:
- suspend or terminate the Customer’s access to the Products or Products Data immediately upon written notice to the Customer; and
- commence proceedings against the Customer for any loss or damage the Company suffers as a result of the breach; and
- refer the matter (including the Customer’s name and contact details) to any debt collector or other third party to assist the Company in collecting any fee not paid to the Company under the terms of this Agreement, including but not limited to conducting
any consumer credit searches or listing the Customer with a credit reporting agency.
15.2 The Company and its service providers reserve the right to suspend or terminate the Customer’s access to the Products in circumstances where:
- the Company or its service providers reasonably believe that the Customer (which includes its agents or employees) has used or disclosed the Products, Product Data or other Confidential Information in a manner not permitted under this Agreement
or otherwise has materially breached this Agreement, or
- an event of force majeure occurs that affects the Company’s ability to provide the Products or Product Data;
15.3 If any use is made of the Products or the Product Data by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to the Company’s other rights and remedies the Customer
will immediately be liable to pay to the Company an amount equal to the charges which such person or entity would have been obliged to pay had the Company granted a licence to the unauthorised user at the beginning of the period of the authorised
15.4 Either Party has the right to terminate this Agreement, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:
- the other Party becomes insolvent; or
- the other Party commits a breach of this Agreement, and
- the breach is material and not capable of being cured, or
- if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) days of being notified in writing of the breach by the Party giving the notice (“rectification period”).
15.5 In the event that the Customer fails to rectify any breach within thirty (30) days of being notified in writing of the breach by the Company in accordance with clause 4(b), the Company may, at its election, accept the Customer’s failure to rectify
- a repudiation of this Agreement; and
- terminate this Agreement in accordance with this clause 15 commencing from the date the rectification period expired.
15.6 Following the Initial Period, the Customer will have the right to terminate this Agreement, with or without cause, upon at least ninety (90) days prior written notice to the Company. If the Customer delivers a written notice to terminate under this clause 6, the Customer will deliver together with such written notice payment for the remaining period of the Renewal Period.
15.7 In the event that this Agreement is terminated or expires, all of the Customer’s rights to use the Products and Product Data will immediately terminate, and the Customer will at its expense promptly return, or at the Company’s election destroy, any copies of Products, Product Data and other Confidential Information that are either in the Customer’s possession or under the Customer’s control.
15.8 Termination of this Agreement will not act as a waiver of any breach of this Agreement and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Neither Party will be liable to
the other for damages arising by reason of termination of this Agreement in accordance with its terms. Either Party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.
15.9 The following clauses will survive any termination of this Agreement: 1; 3; 7; 8; 9; 10; 11; 13.1; 13.3; 14; 15; and 17.
16.1 All notices hereunder will be in writing addressed to the Parties at the respective addresses shown on the Product Schedule.
16.2 Notice will be deemed given:
- in the case of hand-delivered mail upon delivery or in the case of mail upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving Party (such receipt not to be unduly delayed
- in the case of ordinary mail on the fourth day after the date of posting;
- in the case of email transmission upon the email being sent.
16.3 A Party may change its address for service of notices under this clause by giving written notification of the new address to the other Party.
Personal Information, the Customer agrees to:
- comply with the Privacy Act whether or not you are bound by the Privacy Act;
- only use Personal Information the Company discloses to you for the purposes for which we disclosed that Personal Information;
- take all reasonable steps to ensure that the Customer, or any of the Customer’s agents, will not act in a way that contravenes the Privacy Act;
- notify the Company immediately (by email to email@example.com) of any privacy complaints or events which may cause the Privacy Act to be breached and to assist the Company in dealing with any complaints or potential breaches, including proving
is access to relevant information; and
- keep the Company indemnified in respect of any loss, claim, liability or expense and (whether in contract, tort (including negligence), strict liability or otherwise) incurred by the Company resulting from a breach by the Customer or its employees,
of the Privacy Act and Spam Act, including a breach by the Customer or any third party of any telephone number disclosed by the Company to the Customer that appears on the Do Not Call Register.
18.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by the Party to be bound.
18.2 This Agreement will be governed by and construed in accordance with the Laws in force in the State of Queensland. Each Party submits to the non-exclusive jurisdiction of the courts of that place.
18.3 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions on this Agreement will be binding unless in writing signed by each Party except as provided by this clause. Where the Company amends the terms and conditions of the Agreement, it will notify Customers of any amendment and the Customer will have the right to elect to terminate this Agreement, by providing the Company with written notice of its intention to do so within thirty (30) days of its receipt of the Company’s written notice of any amendment. Where the parties agree to vary the level, type, description or number of subscription packages, users, logins and Products as described in the Product Schedule, such a variation will be binding and effective upon written acceptance of the variation. For the avoidance of doubt, written acceptance includes email and online notification of a Party’s acceptance.
18.4 The Customer may not assign this Agreement without the Company’s written consent. The Company may assign this Agreement or any part of this Agreement, or any right or obligation under this Agreement, without notice to or the consent of the Customer.
18.5 The Customer warrants that it has not relied on any representation made by the Company which has not been expressly stated in this Agreement or upon the descriptions or allusions or specifications contained in any document including any catalogue or other material produced or made available by the Company.
18.6 The Company or its service providers will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of the Company or its service providers as the case may
be (whether happening in the Commonwealth of Australia or elsewhere, including acts of God, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, unavailability, shortage or restriction of power supply, communications, communications infrastructure or third party services, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data).
18.7 If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that
provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
18.8 Nothing contained or implied in this Agreement constitutes one Party the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.
18.9 The rights and remedies provided in this Agreement are in addition to other rights and remedies given by Law independently of this Agreement.
18.10 This Agreement constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
18.11 To the extent of any inconsistency between these General Terms and Conditions and any of the Product Terms, the Product Terms will prevail.
19. Third Party Products
By accessing and using products from our Third Party suppliers you agree as follows:
19.1 Where the Customer elects to use CoreLogic RP Data products, in addition to the General Terms and Conditions, the Customer agrees to comply with CoreLogic RP Data’s terms and conditions contained at http://www.corelogic.com.au/general/general_terms_and_conditions.html for all Products provided by the Company on behalf of CoreLogic RP Data (which includes the following data products: rp professional, Suburb Scorecard, Rental AVM and data reports).
19.2 Where the Customer elects to use Macquarie Invoice Express services provided by Macquarie Bank Limited (Macquarie), in addition to the General Terms and Conditions, the Customer agrees to comply with Macquarie’s terms and conditions contained at http://www.propertyiq.com.au/terms-conditions/maquarie-invoice-express/ for Macquarie Invoice Express provided by the Company on behalf of Macquarie.
19.3 Where the Customer elects to use PropertyIQ Connect, in addition to the General Terms and Conditions, the Customer agrees to comply with Salesforce Inc (USA) terms and conditions contained at http://www.propertyiq.com.au/terms-conditions/sf/ for PropertyIQ Connect provided by the Company on behalf of Salesforce Inc (USA).