realbusinesses.com.au customer terms and conditions effective 24 July 2012

realestate.com.au Pty Ltd (ABN 21 080 195 535)

Effective 24 July 2012

Introduction

What terms and conditions apply?

To use our web site, you must accept the:

  • these Terms and Conditions;
  • the terms of any Order Form you sign and, where applicable, any credit application you have submitted and the terms and conditions of such credit application; and
  • other terms incorporated by reference, including our Acceptable Use Policy, and our Privacy Policy.

Together, these terms and conditions make up your "Agreement" with us.

Subscription with us on or before 30 September 2010?

If so, you will have recently received information from us telling you how your subscription will change.

You will be able to access the same products and services until the end of your subscription term (unless otherwise advised by us or your Account Manager).

Previously, we had one set of terms and conditions that applied to listing properties for sale or lease on www.realcommercial.com.au (or www.realcommercial.co.nz for New Zealand users) and businesses for sale on www.realbusinesses.com.au. We've since split these two listing categories and updated the terms and conditions that apply.

You should take a moment to review the updated terms and conditions. If you want to list:

Terms and Conditions – Businesses For Sale

The following are the standard terms and conditions ("Terms and Conditions") that apply to your use of the Service. Receipt of an Order Form signed by you will constitute your acceptance of the Terms and Conditions and of your Agreement. Please read these Terms and Conditions in conjunction with your Order Form, and any other document provided to you at the time of signing the Order Form.

  1. Defined terms

    For the purposes of these Terms and Conditions:

    "Agreement" is as defined in the Introduction above.

    "Order Form" means the form specifying your subscription details for the Service (including a form for any additional products we agree to supply to you in relation to our web site).

    "Our web site" refers to the web site located at the URL "realbusinesses.com.au".

    "Service" may include any of the following or a combination thereof:

    1. a process that will facilitate you uploading property details (including images) to either:
      1. the extensive businesses search engine accessible on our web site; or
      2. another internet site of your choice that has been approved by us in writing;
    2. the provision of our depth products to you;
    3. having your business(es) featured on our web site;
    4. a facility for potential purchasers to send short message service (SMS) messages directly to your mobile phone from our web site;
    5. training;
    6. phone support; and
    7. any associated or ancillary service we agree in writing to provide to you.

    "Term" means any Initial Term or Further Term of this Agreement.

    "We", "our", "us" or "REA" refers to realestate.com.au Pty Ltd (ABN 21 080 195 535), and its subsidiaries, employees, officers, agents, affiliates or assigned parties.

    "You", "your" or "the client" refer to you as the user of the Service.

  2. Your obligations and acknowledgements

    1. You represent and warrant in respect of each business you list on our web site that:
      1. you are a registered business broker in the States or Territory to which your use of the Service relates;
      2. you have a signed authority to sell from the owner or vendor (such as an Agency Agreement or Authority to Sell); and
      3. you are authorised to make available the material uploaded or submitted to use the Service;
      4. you will not allow another business broker in your business broker group to list the business using your subscription. Where an owner or vendor of a business authorises multiple business brokers in your business broker group to list a business, you acknowledge that:
        1. this does not entitle you to authorise any other person (including, without limitation, any associated offices in your business broker group) to make use of the one subscription; and
        2. any such conduct is in breach of these Terms and Conditions; and
      5. you will comply with all of the terms applying to your use of the Service.
    2. You must:
      1. comply with the terms of the Agreement;
      2. only advertise businesses that are currently available for purchase within the States or Territories in which you are a registered business broker (to the satisfaction of REA) or in which you hold a current real estate agent's licence;
      3. only upload businesses to our web site directly, or through a third party provider who has agreed to comply with this Agreement;
      4. within 72 hours of a sale contract being entered into for a business, either mark the business as "under contract", transfer to the business to the sold database or remove that business from our web site;
      5. ensure the businesses you list on our web site are up to date. This means you (and your third party provider, if any) must:
        1. remove all inactive or sold businesses from the active database; and
        2. not use our web site to advertise your services if you do not have a business for sale,
      6. ensure that material you upload through use of the Service is not unlawful or uploaded for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;
      7. ensure that you do not make, arrange or authorise the insertion of any reference to us or our web site in any document (including promotional or merchandising material) or on any web site other than our web site without our prior written consent;
      8. abide by any applicable Code of Practice (incorporating privacy and advertising codes) issued by your local Internet Industry Association (Australian codes of practice can be found at www.iia.net.au);
      9. comply with any guidelines and codes issued by the Australian Institute of Business Brokers or other similar body you are registered with;
      10. comply with all applicable laws, including without limitation, the Trade Practices Act 1974 (Cth), local fair trading legislation and any other applicable advertising standards and regulations;
      11. ensure that:
        1. your username and password for accessing the Service are kept secure at all times and are only disclosed to persons authorised to incur charges on your behalf. However you are responsible for any use of the Service using your username and password by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use;
        2. unless expressly permitted in the Acceptable Use Policy, material submitted through the Service by you refers only to listing details of a particular business;
        3. the listing details for a particular business through the Service are only listed by you (or any associated offices or other agents in your business broker group) once; and
        4. unless expressly permitted in the Acceptable Use Policy, any reference to material other than listing details for a business must receive our written approval prior to being submitted through the Service; and
      12. ensure that no other person, authorised or otherwise, makes use of your subscription to the Service in breach of these Terms and Conditions. However you are responsible for any use of the Service using your subscription by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use.
    3. You acknowledge that:
      1. you have read and agree to be bound by the terms of all legal notices posted on our web site including our Acceptable Use Policy,Privacy Policy,Website Terms of Use and Copyright notices;
      2. by using the Service, you grant us an irrevocable, world-wide, royalty free licence to commercialise, copy, license to other persons, use and adapt for any purpose any material you generate or submit to make use of the Service;
      3. we are not under any obligation to monitor or censor the material uploaded by you that appears on our web site. However we reserve the right to do so and to take any action we deem appropriate (including removing material from our web site without notice);
      4. we are not responsible for the Service's content or for any errors or omissions in any business data provided by or on behalf of you;
      5. we cannot guarantee the continuous or fault-free operation of the Service;
      6. systems or technological failure may impede or prevent access to all or any part of the business data and transmission of data over the internet can be subject to errors and delays;
      7. you are responsible for and must pay the cost of all telecommunications and internet access charges incurred when using our web site, whether or not such access has been arranged by us;
      8. you are responsible for the security and integrity of your data;
      9. our products (including, without limitation, Feature Business, Feature Agent, Banner Advertising, and Email Alert Strip Ads) are subject to change, development and discontinuation. We will endeavour to notify you when this happens;
      10. we will contact you from time to time to make you aware of opportunities, products and services offered by us and our business partners. You authorise us to contact you via email, SMS, MMS and other electronic media for that purpose unless you explicitly request us not to contact you via these media. You also authorise us, to the extent permitted by law, to contact you via any of these methods without including an unsubscribe facility;
      11. where you provide us with personal information of an individual, you warrant that you have informed that individual that their personal information will be used and disclosed by us in accordance with our Privacy Policy;
      12. you may provide us your vendor's contact details for the purpose of contacting vendors regarding the marketing of their property (for example, regarding the upgrading of their listing on realbusinesses.com.au). You are under no obligation to provide us with any vendor's contact details;
      13. if you do choose to provide us with a vendor's contact details, you warrant and represent to us that:
        1. the vendor's contact details will not contain personal information (as defined in the Privacy Act 1988 (Cth)); or
        2. where the vendor's contact details do contain personal information (as defined in the Privacy Act 1988 (Cth)):
          1. before providing the details, you have informed the vendor that you may disclose their details to third party advertisers and that those third party advertisers may contact them regarding the marketing of their property; and
          2. you have not breached any regulatory or contractual obligations in providing the details; and
      14. where a business listing is subject to an upgrade and the vendor or other third party purchases a further upgrade in respect of the same business listing, the term of your original upgrade will end and you acknowledge that no refund will be provided to you in respect of the shortening of the upgrade term.

  3. Term

    1. Unless otherwise stated in your Order Form, this Agreement shall have an Initial Term of twelve (12) months from the Contract Start Date specified on your Order Form.
    2. Following the expiry of the Initial Term, this Agreement shall continue for further terms of the same period as the Initial Term ("Further Terms") until terminated in accordance with these Terms and Conditions. You do not need to take any action for the Agreement to continue for Further Terms.

  4. Termination of Service by you

    1. If you do not wish for this Agreement to continue for a Further Term, at least thirty (30) days before the expiration of the Initial Term or the then current Further Term, you must provide us with clear written notice of your intention to terminate the Agreement upon the expiration of the Initial Term or the then current Further Term. Your obligation to provide us with at least thirty (30) days clear written notice of your desire to terminate this Agreement exists regardless of whether or not you receive any communication from us regarding a Further Term.
    2. You agree that once the Initial Term or any Further Term commences, you may not terminate the Agreement for any reason until the expiry of that Initial Term or Further Term.
    3. If you purport to terminate the Agreement before the expiry of the Initial Term, you acknowledge that you shall remain liable for the fees payable under this Agreement for the remainder of the Initial Term.
    4. If you purport to terminate the Agreement after the expiry of the Initial Term but before the expiry of a Further Term, you acknowledge that you shall remain liable for the fees payable under this Agreement for the shorter of the following periods:
      1. three (3) months commencing from the time of the purported termination; and
      2. the remainder of the Further Term;
      PROVIDED THAT the minimum sum payable on purported early termination under this clause 4.4 shall be one (1) month's fees.
    5. The sum payable by you on purported early termination under clause 4.3 or 4.4 above shall be a debt due to us payable at the time of the purported termination and you agree to pay such sum within fourteen (14) days of the purported termination.
    6. You agree that the sum payable by you under clause 4.3 or 4.4 above is not a penalty, but a reasonable measure of actual damage to us as a result of your early purported termination.

  5. Termination or suspension of Service by us

    1. We may terminate this Agreement (or any part of this Agreement, or any part of the Service that we provide to you) at any time for any reason provided that we give you at least seven (7) days written notice.
    2. Notwithstanding clause 5.1 and without limiting our other rights, we may immediately suspend or temporarily remove details of any business uploaded by you to our web site or terminate this Agreement if:
      1. you fail to pay any fees or charges due to us by the due date;
      2. you breach any part of this Agreement and the breach is material and not capable of being rectified;
      3. you breach any part of this Agreement and fail to rectify the breach within seven (7) of the breach;
      4. you breach any warranties provided or representations made in this Agreement;
      5. any material supplied by you (including material uploaded to our web site) is false or misleading;
      6. you enter into bankruptcy, liquidation, provisional liquidation, administration, receivership, receivership and management, a composition of arrangement with your creditors, or appoint a receiver, manager or controller over all or any part of your assets or are protected from creditors under any statute, or become or are deemed to become insolvent; or
      7. you die, or if you are in a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.

  6. Effect of termination (by you or us)

    1. Termination of this Agreement (by you or by us) does not:
      1. relieve you of your accrued obligations and liabilities pursuant to this Agreement and we reserve our right to enforce such obligations and liabilities after termination; and
      2. waive any breach of this Agreement by you.
    2. In addition to clause 6.1, you acknowledge that:
      1. you remain liable for all fees incurred before termination of this Agreement and you must pay all outstanding amounts to us within seven (7) days of termination; and
      2. if you continue to use the Service following termination of this Agreement, you remain liable for any and all fees incurred by you (these fees may be calculated at our "out of contract" rate which is higher than our usual rates).

  7. Packages, fees and billing

    1. We offer a number of different packages that vary in terms of price, products and services included. You may subscribe to any of these packages, but switching, or addition of special conditions to, packages is at our sole discretion.
    2. The current fee for the Service is specified in your Order Form. There is no current surcharge for payment by Visa Card or Mastercard, but we reserve the right to impose a surcharge in accordance with clause 7.3.
    3. We reserve the right to amend the terms and conditions of this Agreement, including package components, products and fees, at any time. You will be given written notice of any changes to our fees or package components.
    4. Service fees for the initial month of the Term are payable from the Contract Start Date specified on your Order Form. The initial month's service fees may be billed in advance or in arrears to fall within our regular billing cycle. Fees for subsequent months are payable partly in advance and party in arrears with the due date being fourteen (14) days from the commencement of any subsequent calendar month.
    5. If we do not receive payment by the due date, we may:
      1. remove any reference or prevent access to business data submitted by you to our web site;
      2. charge an administration fee of $5.00 plus any applicable GST per month on overdue accounts;
      3. charge interest on any overdue amount at a rate equal to 2% per calendar month; and
      4. demand that you pay for any costs of collecting the overdue amount, including but not limited to collection of agency fees and legal fees.
    6. You will pay all taxes, duties and other government charges payable in connection with this Agreement whether applying as at the date of this Agreement or in the future including without limitation, any applicable goods and services tax (GST), other value added tax, sales tax, stamp duty and turnover tax, but excluding taxes, duties and government charges based on our income.

  8. Limitation of liability and indemnity

    1. To the extent allowable under the Competition and Consumer Act 2010 (Cth) or any other applicable law, we:
      1. exclude all conditions and warranties implied into this Agreement;
      2. exclude consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue, loss of data and loss of profits);
      3. limit our liability for breach of any condition or warranty that we cannot exclude to (at our option):
        1. resupplying the Service; or
        2. paying the cost of having the Service resupplied; and
      4. limit our liability in respect of any other claim under or in connection with this Agreement whether the claim is based in contract, tort (including negligence) statute, or otherwise, to the amount paid to us by you under this Agreement and reduce that liability to the extent you cause or contribute to the loss the subject of the claim.
    2. You must take all reasonable steps to minimise any loss you suffer or are likely to suffer and that is the subject of a claim against us under this Agreement. If you do not take reasonable steps to minimise that loss, then our liability to you for the relevant claim will be reduced accordingly.
    3. We will not be liable under this Agreement to the extent that liability is caused by:
      1. any breach of your obligations under this Agreement or a negligent act or omission by you; or
      2. any delay in performance or breach of this Agreement which arises as a result of any matter beyond our control including but not limited to viruses, other defects or failure of the server hosting our web site.
    4. You indemnify us and our officers, employees and agents ("those indemnified") against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material uploaded or submitted by you in connection with the Service or any other act or omission by you in connection with your use of the Service.
    5. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.

  9. General

    1. We may change these Terms and Conditions (and any part of our Agreement with you) at any time by giving you at least 30 days prior written notice. You acknowledge that our publishing the amended version of the Terms and Conditions at this link on our web site constitutes written notice to you of such changes.
    2. No delay or failure by us to enforce any provision of this Agreement will be deemed a waiver or create a precedent or will prejudice our rights. No waiver by us will be effective unless it is in writing and signed by us.
    3. We will send all notices and other communications to you to the email address and/or facsimile number you have provided to us. It is your sole responsibility to ensure that you provide us with your current contact email address and/or facsimile number.
    4. All notices from you to us (excluding termination notices) must be sent by email to renewals@realbusiness.com.au (emails will not be accepted from hotmail, Gmail or similar accounts) or by facsimile to 1300 664 044. These contact details may be amended from time to time. It is your responsibility to check these Terms and Conditions for the current contact details.Termination notices must be sent in a form that we may prescribe from time to time - to the contact details specified on the form.
    5. You must not assign or novate this Agreement or appoint an agent without our prior written consent.
    6. We may assign or novate this Agreement to any third party at any time. If we assign or novate this Agreement, we will notify you of the assignment or novation (as the case may be). The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.
    7. This Agreement (together with any documents referred to in the Agreement or provided by us at the same time as the Agreement) comprises the entire agreement between us about its subject matter. It supersedes all prior understandings, agreements or representations and you may not rely on any representations or warranties about the subject matter of this Agreement except as expressly provided in this Agreement.
    8. The laws of Victoria, Australia govern the Agreement.
    9. You submit to the exclusive jurisdiction of the Courts of Victoria, Australia and you waive any right you have to object to an action being brought in the Courts of Victoria (including that the action has been brought in an inconvenient forum, or that those Courts do not have jurisdiction).
    10. If any term of this Agreement is void unenforceable or illegal, that term is severed. The remainder of the Agreement has full force and effect.
    11. Our rights and remedies provided in this Agreement are in addition to other rights and remedies given to us by law and equity independently of this Agreement.