1.1
Real Estate Agent Select Ltd (ACN 064 189 457), trading as Agent Select and Homesuite (referred to as Agent Select or Homesuite (as applicable), we, our and us) agrees to provide you (referred to as you and your) with our Services, including access to and use of our Website, in accordance with these Terms.
1.2
By accessing and using our Website, you are agreeing to these Terms. If you do not agree with these Terms, then do not access or use our Website.
1.3
We may amend or replace these Terms at any time by posting the amended or replacement on our Website. Your continued use of our Website indicates your acceptance of any amendment or replacement of these Terms.
Description
2.1
At Agent Select, we have access to detailed performance data from the large majority of licenced real estate Agents across Australia. We have developed a suite of software tools that analyse Agent performance based on a broad range of measurable sales and related indicators. This creates a shortlist of high performers with a proven track record of selling and leasing specific types of properties in specific geographic areas, as relevant to your property. We then invite up to three Agents from this shortlist to tender for your property listing. You make your own choice of Agent from this shortlist following receipt of a detailed report comparing the respective listing proposals and / or listing proposals directly from the shortlisted Agents.
2.2
Our Services include:
(a)
access to and use of our Website;
(b)
general information in relation to the Australian property market, engaging Agents, selling or leasing your property;
(c)
results about properties, property market conditions, property pricing, suburb trends and recent sales in an area (Results);
(d)
property profile reports incorporating the Results (Property Reports);
(e)
reports comparing Agents (Agent Comparison Reports);
(f)
facilitating a process that allows you to engage an Agent to sell your property; and
(g)
facilitating your engagement with providers of products and services related to your property listing, leasing and/or sale including but not necessarily limited to providers of conveyancing, removals and storage, utilities reconnection, cleaning and repairs and maintenance services.
2.3
The Services are delivered either directly by us and / or through one or more third party product or service providers (Fulfilment Partners) who have expertise in an area relevant to your property transition requirements.
2.4
Agent Select may offer you information about the services delivered by Fulfilment Partners (Fulfilment Partner Services) and, with your express consent, may pass on your contact details to the Fulfilment Partners for the purposes of you receiving additional information about the Fulfilment Partner Services, procuring cost estimates and / or ultimate being the recipient of such Fulfilment Partner Services.
2.5
Any Fulfilment Partner Service(s) are presented to you for information purposes only. You, at your sole discretion, may wish to engage the services of any one or more Fulfilment Partners and as such will be solely responsible for any costs incurred in the delivery of such Fulfilment Partner Services. For the avoidance of doubt, any Fulfilment Partner Service presented to you as part of the Services is done so for your information and consideration. The decision to engage any Fulfilment Partner Services is solely yours.
Limitations
2.6
Please note the following important limitations regarding our Services:
(a)
We are a licensed real estate Agent but does not act in this capacity when providing the Services.
(b)
TThe Results rely on historic market data and other information. Accordingly, there are merely indicative by way of general guidance only and cannot and do not predict or guarantee future results or performance, including the actual price that you may achieve if you sell your property.
(c)
The Agent Comparison Reports provide you with some historic information to assist you in selecting an Agent who is suitable for your needs.
(d)
(e)
Our Services do not include (and should not be taken by you to include):
(i)
a recommendation that you engage a particular Fulfilment Partner(s) and / or Agent; or
(ii)
an assessment of a particular Fulfilment Partner(s) and / or Agent’s ability or capacity to meet your specific personal requirements of which we are unaware.
No Cost to You
2.7
Downtime for maintenance
2.8
General
3.1
You will:
(a)
strictly comply with our written instructions in relation to your access to and use of our Website;
(b)
only access and use our Website through the interfaces that we provide;
(c)
not copy, modify, enhance or reproduce our Website, in whole or in part;
(d)
not reverse-engineer, reverse-translate, disassemble, de-compile, or otherwise attempt to derive source code to our Website;
(e)
not remove or alter the these Terms or any logo, branding, notice or other documentation incorporated in or included with our Website;
(f)
not access or utilise our Website to violate the law or rights of any person or entity, including sending spam, unlawful or tortious material;
(g)
not use our Website to send or store software viruses, worms trojan horses or other harmful computer code, files, scripts, agents or programs;
(h)
not interfere with or disrupt the integrity of our Website or the data contained within our Website;
(i)
not attempt to gain unauthorised access to our Website or its related systems or networks;
(j)
not license, sub-license, sell, re-sell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make our Website available to third parties by any method or means including as part of a bureau service, time sharing service, application service provider offering or other managed service offering;
(k)
not use any computerised or mechanical process to access, use or to collect content or data from our Website or to send unsolicited or unlawful emails to or through our Website; and
(l)
not directly or indirectly permit any third party to do any of the matters specified in clauses 3.1(c) to 3.1(k).
Registered Users
3.2
IIn order to access the full range of our Services, you must apply to become a registered user (Registered User) and establish an Agent Select and / or Homesuite account (as applicable) (Account). By making an application, you warrant to us that:
(a)
all of information provided by you (Your Information) is accurate, complete and up to date (and you will keep us updated of any changes to this information); and
(b)
you have read and consented to our Privacy Policy.
3.3
You acknowledge and agree that if Your Information is not accurate, complete and up to date then:
(a)
we cannot provide you with our full range of Services; and
(b)
the Results, the Property Reports and the Agent Comparison Reports may be affected.
3.4
We may contact you to verify that Your Information is accurate, complete and up to date.
3.5
We will provide you with a username and password for accessing and using your Account.
3.5
You will:
(a)
keep your user name and password secure and only make them available to your authorised representatives; and
(b)
immediately notify us if the security of your password or username has been, or may have been, compromised.
User Content
3.7
As a Registered User, you may have opportunities to upload, submit or provide User Content to our Website.
3.8
By uploading, submitting or providing your User Content to our Website, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, worldwide and irrevocable license to use, reproduce, modify, create derivative works from, adapt, publish and display that User Content for any purpose in any media, without compensation, restriction on use, attribution or liability. You also consent to the Infringement of your Moral Rights in relation to this use of your User Content and warrant that you the full authority to grant these rights.
3.9
You acknowledge and agree that:
(a)
your User Content may become public so that any person can access and view your User Content, and associate it with you through your profile as a Registered User;
(b)
you are fully responsible for your User Content; and
(c)
we reserve the right to monitor your User Content to ensure compliance with these Terms; and
(d)
we may in our or their absolute discretion edit, refuse to post, or remove any User Content which does not comply with these Terms or that we otherwise consider unacceptable or inappropriate.
3.10
You will:
(a)
ensure that your User Content is not:
(i)
fraudulent, false, misleading or deceptive;
(ii)
unlawful;
(iii)
infringing any person’s IP or privacy;
(iv)
defamatory, libellous, obscene, derogatory, pornographic, sexually inappropriate, violent, abusive, hateful, scandalous, harassing, threatening, vulgar or obscene;
(v)
objectionable with respect to race, religion, origin or gender;
(vi)
unsuitable for children aged under 18; or
(vii)
soliciting, encouraging or promoting any of the above,
(b)
not post or transmit through our Website, any User Content for commercial purposes, including advertising any third party products and services; and
(c)
ensure that your User Content does not contain viruses or cause injury or harm to any person or entity.
Third Party Sites
3.11
Links to Third Party Sites are provided for your convenience only and do not constitute an endorsement by us.
3.12
You will not make any Claim against us in relation to the Third Party Sites, including in relation to any goods or services provided through those sites.
4.1
Important consumer information: Full details of the consumer rights and remedies referred to in this clause 4 can be obtained from the Australian Competition and Consumer Commission at www.accc.gov.au or from a local consumer protection agency.
4.2
Important consumer information: Nothing in this clause 4.2 limits your consumer rights and remedies referred to in clauses 4.3 and 4.4. Subject to clauses 4.3 and 4.4:
(a)
you agree that all terms, conditions, warranties, guarantees, representations and obligations in relation to our supply to you of goods and services which are implied or granted by statute or general law are excluded; and
(b)
other than as expressly set out in these Terms, we do not warrant or represent the performance, accuracy, reliability or continued availability of our Website or that our Website will operate free from faults, errors or interruptions.
4.3
If the Services are a supply to you of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, then you have important rights under the Australian Consumer Law, including Consumer Rights and remedies. Nothing in these Terms limits those rights and remedies in any way.
4.4
If the Services are supply to you of goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than $40,000, then you have important rights under the Australian Consumer Law including Consumer Rights and remedies, but (subject to clause 4.5) our liability for loss suffered or incurred by you is limited to us:
(a)
in respect of goods supplied under these Terms:
(i)
replacing the goods or supplying equivalent goods;
(ii)
repairing the goods;
(iii)
paying the cost of replacing the goods or of acquiring equivalent goods; or
(iv)
paying the cost of having the goods repaired,
(b)
in respect of services supplied under these Terms:
(i)
resupplying the services; or
(ii)
paying the cost of having the services supplied again.
4.5
The limitation of liability in clause 4.4 does not apply:
(a)
where it is not fair or reasonable for us to rely on that clause; or
(b)
in relation to rights granted under sections 51, 52 and 53 of the Australian Consumer Law.
4.6
Where we are liable to you in circumstances which are not covered by clauses 4.3 and 4.4, our total liability to you for all events and occurrences in respect of these Terms, whether in contract, tort including negligence, under statute or otherwise, is limited to $100. However, the limitation of liability in this clause 4.6 does not apply to limit our liability to you in relation to:
(a)
personal injury including sickness and death;
(b)
loss of or damage to tangible property; and
(c)
criminal conduct, fraud or wilful misconduct.
4.7
Subject to any Consumer Rights and to the extent permitted by law:
(a)
we are not liable to you in any circumstances for any indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, reputational loss, loss of production and loss of profit in respect of these Terms or the supply of any goods and/or services;
(b)
you will not bring any Claim against us in relation to the conduct or services of any Agent that you engage, unless and to the extent directly caused by our negligence or breach of these Terms.
(c)
our liability in respect of these Terms is reduced to the extent that the relevant loss or damage:
(i)
was caused or contributed to by you; or
(ii)
arises from Your Information being inaccurate, incomplete or out of date; and
(d)
you indemnify us against any damage, expense, loss or liability suffered or incurred by us (including Claims by third parties) in respect of:
(i)
your breach of these Terms; or
(ii)
your User Content,
unless and to the extent directly caused by our negligence or breach of these Terms.
5.1
You acknowledge that, other than as expressly set out in these Terms, you obtain no right, title or interest (including IP) in our Website or our Website Content. A s between you and us, all IP in our Website and our Website Content remains with us, or vests in us on the date of its creation of development.
5.2
We will comply with the Privacy Act as if we were an APP Entity with respect to all Personal Information that we access or obtain from you through our Website. Please refer to our Privacy Policy for further details.
6.1
If you breach these Terms, we may immediately by giving your written notice:
(a)
suspend or terminate your Account; and
(b)
terminate these Terms.
6.2
Either party may terminate these Terms at any time and without giving any reason by giving the other party written notice.
6.3
On termination or expiry of these Terms, you will immediately:
(a)
cease all access and use of our Website; and
(b)
estroy or return to us all of our Material in your possession or control.
7.1
Subject to any Consumer Rights, these Terms constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter.
7.2
These Terms may only be amended in writing signed by both parties.
7.3
Each party warrants that it has the authority, power and capability to enter into and to perform its obligations under these Terms and that its obligations under these Terms are binding and enforceable
7.4
Our obligations under these Terms are suspended during any period in which we are prevented from performing them by a Force Majeure Event.
7.5
Each term of these Terms will be interpreted in such manner as to be effective and valid under applicable law. If any term of these Terms is held to be prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of these Terms.
7.6
A term of these Terms may not be waived except in writing signed by the party granting the waiver. The waiver by a party of a breach by another party of any term of these Terms does not operate as a waiver of another or continuing breach by that party of that term or any other term of these Terms.
7.7
You will not assign or novate any of your rights or obligations under these Terms without our prior written consent (which we may withhold in our absolute discretion). We may assign or novate any of our rights or obligations under these Terms to any person by notice to you.
7.8
The parties acknowledge that nothing in these Terms constitutes a relationship of joint venture, employment or partnership between them.
7.9
Unless otherwise specified, each party will pay all its costs associated with negotiating and entering into these Terms and performing its obligations under these Terms.
7.10
This Agreement is governed by the laws applicable in the State of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of that State.
8.1
In these Terms:
Account is defined in clause 3.2.
Agent means real estate agent or agency.
Agent Comparison Reports is defined in clause 2.7(f).
APP Entity means APP entity as that term is defined in the Privacy Act.
Australian Consumer Law means the Australian Consumer Law contained in schedule 2 to the Competition and Consumer Act 2010 (Cth).
Claim means any claim, demand, action or proceeding of any kind (whether in contract, tort including negligence, under statute or otherwise).
Consumer means consumer as that term is defined in the Australian Consumer Law.
Consumer Rights means your rights if you are a Consumer contained in the Australian Consumer Law.
Content means any content, information, review, comment, testimonial, conversation, report, survey response, text, image, video, recording, creative works or writings, reference, link, resource, or other Material in or on our Website.
Force Majeure Event means any cause beyond our reasonable control, including, your act or omission or those of third parties, fire, storm, flood, earthquake, explosion, accident, act of public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, transportation embargo or failure or delay in transportation, plant or equipment breakdown, act of God and act (including laws, regulations, disapprovals or failure to approve) of any government or agency or unavailability of, or defects, faults or errors in, software licensed from third parties.
IP means:
(a)
patents, trade marks, services marks, design rights (whether registered or unregistered and including any applications for these rights);
(b)
copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
(c)
trade or business names; and
(d)
know-how, confidential information and trade secrets,
and any other similar rights or obligations whether registrable or not in any country.
Material means material in any form, including documents, reports, products, equipment, information, data, source code, software, software tools, and methodologies.
Moral Rights means moral rights as defined in the Copyright Amendment (Moral Rights) Act 2000 (Cth).
Personal Information has the meaning given in the Privacy Act.
Property Reports is defined in clause 2.7(e).
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Policy means our privacy policy located at agentselect.com.au.
Registered User is defined in clause 3.2.
Results is defined in clause 2.7(d).
Services means the services described in clause 2 and any other services that we provide you from time to time.
Terms means this document.
Third Party Sites means sites and resources located on servers operated and maintained by a third party.
User Content means any Content that is uploaded, transmitted, distributed, created, produced, submitted or provided by you as a Registered User or any other person accessing or using our Website with your Account username and password.
Website means our website located at www.homesuite.com.au or www.agentselect.com.au and includes all related software upgrades and updates, add-on components, web services, supplements and other Material provided by us.
Website Content means any Content on our Website, other than your User Content.
Your Information is defined in clause 3.2(a).
8.2
In these Terms:
(a)
words importing the singular include the plural and vice versa;
(b)
a reference to a thing includes a part of that thing;
(c)
references to clauses, parties, schedules and annexures are references to clauses of, and parties, schedules and annexures to, this Agreement;
(d)
a reference to a party includes its executors, administrators, successors and permitted assigns;
(e)
words importing gender include any gender;
(f)
other grammatical forms of defined words or expressions have corresponding meanings;
(g)
an expression importing a natural person includes a company, partnership, joint venture, association, corporation or other body corporate or any government agency;
(h)
a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(i)
a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(j)
unless expressly stated otherwise, a reference to currency is a reference to Australian dollars; and
(k)
wherever "include" or any form of that word is used, it will be construed as if it were followed by "(without limitation)".
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