The following STANDARD TERMS AND CONDITIONS OF USE apply if you entered into a contract after 28th November 2019, please refer to these TERMS AND CONDITIONS if you entered into a contract prior to this date.
STANDARD TERMS AND CONDITIONS OF USE
This document (the Terms) is between the Company or other Entity identified in the Company Details (you) and Bidtracker (VIC) Pty Ltd ABN 85 611 220 823 (we or us). Terms used in this document have the meanings given in paragraph (mm).
(a) (Our products) We currently supply the following digital technology products:
- (1) Real Time Authority;
- (2) Bidtracker;
- (3) Digital Sales Contracts;
- (4) Private Sales Contracts; and
- (5) Google Chrome Extension.
(b) (Products under these Terms) These Terms apply to each of our products that you subscribe for, as identified in the Product Details, (Products), in respect only of the office location listed in the Company Details. If you conduct business at more than one office location, then a separate Agreement in relation to the Products must be entered into for each office location at which you wish to use a Product.
(c) (Prior agreements) If you are an existing subscriber for any Product (immediately before entry into this agreement), the Agreement, including these Terms, replaces and terminates all agreements between you and us in relation to those Products from the time you enter into the Agreement.
(e) (Data) you agree that we may collect and use all Data, subject to:
- (2) our obtaining any necessary consents of individuals whose personal information is included in such Data including at or about the time of collection.
(f) (Special Conditions) The Special Conditions listed above (if any) take precedence over any other term of this agreement to the extent of any inconsistency.
(g) (Variations) We may amend the Agreement, including the Terms or the price of any Product, from time to time. Our up-to-date standard terms for the Products can be found at https://www.realtimeagent.com.au/terms-conditions. We will give you at least 28 days’ notice of any amendment to your Agreement or the Terms. Upon receiving any such notice, you may terminate:
- (1) Your Agreement, where the amendment relates to the Agreement generally; or
- (2) Your Agreement in relation to a Product only, where the amendment relates to that Product only (e.g. a price change), by giving us written notice within 28 days of our notice of the amendment. Failure to notify such a termination within this period will constitute your agreement to the amendment.
(h) (Initial Term) Your Agreement commences when signed by each party and continues for the Initial Term in respect of the relevant Product. Signature may be by way of digital or electronic signature, using our electronic contracting system or mobile application.
(i) (Automatic renewal) Your Agreement will automatically renew in respect of each Product for further successive periods equal in length to the Initial Term, unless either party gives notice of non-renewal in respect of a Product at least 30 days before the end of the then current Initial Term or renewal period, and your Agreement will to operate in respect of any Products for which such notice has not been given.
(j) (Our responsibilities) We agree to:
- (1) provide each Product to you with due care and skill in accordance with good industry practice;
- (2) use commercially reasonable efforts to make the Product available to you 24 hours per day, 7 days a week, for the Term, except for planned down time and Force Majeure Events;
- (3) ensure the Product materially complies with the Documentation; and
- (4) provide the support relevant to the Products for which you subscribe to the extent described in our Documentation. on these Terms.
(k) (Limits of use) Your use of the Products and Content is:
- (1) subject to usage limits as described in our Documentation; and
- (2) limited to the number of Users per Product listed in the Product Details.
(l) (Payment of Price) You must pay the Price in respect of each Product for the Term. The Price (other than any usage charges) is payable in advance, annually or in accordance with any different billing frequency stated in the Product Details. Any usage charges included in the Price will be invoiced monthly or in accordance with any different billing frequency stated in the Product Details. Payment terms are 30 days. You must pay by way of direct debit, credit card we accept or via our payment portal. You authorise us to charge by way of the payment method designated by you the Price of each Product for the Term. You must provide complete and accurate billing, payment and contact information to us and notify us promptly of any changes to that information. If any payment on any account with us is overdue, we may suspend any one or more Products until payment is made.
(m) (Your responsibilities) Without limiting your other obligations under the Agreement:
- (1) you must, and you must ensure that Users, use the Product and any Documentation or Content only as permitted by these Terms and otherwise in compliance with all applicable laws;
- (2) you must use the Products in compliance with the Documentation;
- (3) you must not permit the Product or any Content to be accessed by more than the number of Users set out in the Product Details in respect of a Product. You acknowledge that the charges for a Product are based on the number of Users. You must keep us promptly and continually informed of the accurate number of Users for a particular Product, including persons who cease to be Users and any persons proposed as a new User;
- (4) you must ensure that each of your Users keeps their password confidential and secure and does not share that User’s password for the Product with any other person;
- (5) you must provide us with all information, assistance and cooperation we reasonably request to meet our obligations under these Terms;
- (6) you must ensure the accuracy and quality of the Data and the means by which you or your Users collect it;
- (7) if, when prompted to select a Disclosure Status, you or your User selects a particular Disclosure Status for any Data, you warrant and represent that:
- (A) the person to whom this Data relates has consented to this Disclosure Status;
- (B) you or your User has explained to such person that selecting “disclose” as a Disclosure Status means that such Data may be used by us, our Affiliates and our Affiliates’ business or commercial partners to promote and market products, services and special offers that we consider may be of interest to them (which may include products, services and offers provided by a third party); and
- (8) you must prevent unauthorized access to or use of the Product by your Personnel and notify us promptly of any such unauthorised access or use or any loss, misplacing or theft of a device on which a Product is loaded or accessible.
(n) (Usage restrictions) You must not:
- (1) make the Product or any Content available to anyone other than your Users, or use any Product or Content for any other person’s benefit, unless expressly authorised by these Terms or the Documentation in respect of a Product;
- (2) sell, resell, license, sublicense, distribute, make available, rent or lease any Product or Content, or include any Product or Content in a service bureau or outsourcing offering;
- (3) use a Product:
- (A) to store or transmit infringing, or otherwise unlawful material, or to store or transmit material in violation of third-party privacy or other rights;
- (B) to advocate or discuss any intention to commit any illegal activity;
- (C) in any way that is harmful, threatening, defamatory, tortious, sexually explicit or pornographic, inflammatory or otherwise objectionable, or
- (D) in a manner which interferes with any other person’s use or access to a Product (other than controlling its Users in accordance with these Terms) or the functioning of a Product;
- (4) attempt to impersonate any other person when using a Product;
- (5) use a Product to store or transmit Malicious Code;
- (6) interfere with or disrupt the integrity or performance of any Product or data contained therein;
- (7) attempt to gain unauthorized access to any Product or Content or its related systems or networks;
- (8) permit direct or indirect access to or use of any Product or Content in a way that circumvents a contractual usage limit, or use any Product to access or use any of our or a third party’s intellectual property except as permitted under these Terms or the Documentation;
- (9) copy or reproduce a Product or any part, feature, function or user interface thereof;
- (10) copy or reproduce Content except as permitted by these Terms or the Documentation;
- (11) access any Product or Content to build a competitive product or service or to benchmark with another product or service;
- (12) reverse engineer any Product or attempt to interfere with security-related features of a Product; or
- (13) download, reproduce, transmit, upload or offer to sell any content or information obtained from a Product without our express written consent.
(o) (Disclaimers) We:
- (1) make no representation or warranty of any kind, whether express or implied in fact or by operation of law as to any matter whatsoever;
- (2) expressly disclaim all implied warranties of merchantability, fitness for purpose, quality, accuracy and title, to the extent permitted by law;
- (3) do not warrant or represent that the Product is or will be free of error, will meet your requirements, or will be timely or secure;
- (4) assume no responsibility for any:
- (A) errors, mistakes, or inaccuracies of content;
- (B) personal injury or property damage of any nature whatsoever, resulting from your access to or use of the Product;
- (C) unauthorised access to or use of the Product or any personal or financial information stored by us;
- (D) interruption or cessation of transmission to or from the Product;
- (E) any bugs, viruses or Trojan horses which may be transmitted to or through the Product; or
- (F) any omissions or errors in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available through the Product.
(p) (Digital Sale Contracts and Private Sale Contracts) If you subscribe for the Products “Digital Sale Contracts” or “Private Sale Contracts”, you acknowledge and agree with respect to the relevant product/s (together, Digital Contracts):
- (1) each Digital Contract and all the information contained therein was prepared and/or provided by the solicitors, conveyancers or agents of the vendor(s) to the Digital Contract:
- (2) we make no representation or warranty of any kind, whether express or implied in fact or by operation of law as to the information contained in the Digital Contract;
- (3) we expressly disclaim all implied warranties of merchantability, fitness for purpose, quality, accuracy and title to the Digital Contract to the extent allowed by law;
- (4) we do not warrant that the Digital Contract is or will be free of error;
- (5) we assume no responsibility for any:
- (A) errors, mistakes, or inaccuracies of content with respect to a Digital Contract;
- (B) personal injury or property damage of any nature whatsoever, resulting from your access to or use of the Digital Contract;
- (C) unauthorised access to or use of the Digital Contract;
- (D) interruption or cessation of transmission to or from the Digital Contract;
- (E) bugs, viruses or Trojans which may be transmitted to or through the Digital Contract; or
- (F) any omissions or errors in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available through the Digital Contract.
- (6) you acknowledge and agree that any inclusions of details in the Digital Contract (and subsequent modifications to same) made by you through the Product will be at your sole risk and responsibility, and our disclaimers above also apply in respect of all subsequent modified versions of the Digital Contract;
- (7) on each occasion that you arrange the affixation of a digital or electronic signature to a Digital Contract by the relevant signatories to the Digital Contract (Relevant Signatories):
- (A) you acknowledges that the digital or electronic signature is equally binding upon the Relevant Signatory as if it had executed the Digital Contract on paper with ink; and
- (B) you agree to accept a digital or electronic signature from all parties to the Digital Contract in the formal signing and exchange of the Digital Contract;
- (8) you agree to:
- (A) receive information from the Relevant Signatories electronically;
- (B) receive digitally or electronically signed Digital Contracts from the Relevant Signatories; and
- (C) (upon request by us) provide us with the information required to identify the Relevant Signatories and verify a Relevant Signatory’s digital or electronic signature.
- (9) You acknowledge and agree that, in providing access to Digital Contract as part of the Product, we:
- (A) merely facilitate the execution of Digital Contracts between the Relevant Signatories and we are not a party to those Digital Contracts; and
- (B) are not responsible for determining whether the Digital Contracts are excepted from electronic signature laws, can be legally formed by digital or electronic signature, or whether the Digital Contracts are subject to additional legal requirements in order to be validly executed at law.
(q) (Indemnity) You indemnify us and our Affiliates against any damage, expense, loss, cost or liability we or our Affiliates suffer or incur in connection with:
- (1) any breach of your Agreement by you; or
- (2) any third claim party resulting from your access to or use of a Product or Content.
(r) We hold the benefit of this indemnity, and any other provision in your Agreement in favour of our Affiliates, for our own benefit and for the benefit of our Affiliates.
(s) (Free Product/trial Product) If any Product is provided to you on a free trial basis (which we may do from time to time in our absolute discretion), such trial period free of charge will end on the earlier of:
- (1) the end of the free trial period for which you are registered to use the applicable Product;
- (2) the start date of any Product ordered by you on a chargeable basis; or
- (3) termination by us in our sole discretion without prior notice.
(t) (Competitor) You must not access or use any Product if you are or become a competitor of us or any of our Affiliates. We may determine in our discretion whether you are a competitor, and if we so determine, deny you access to any Product.
(u) (Changes to Products) We may in our discretion modify or update any Products including software and relating to a Product and Documentation at any time without notice to you or any other party, and we will not be liable to you for any such act.
(v) (Future functionality) You agree that you have not relied on any future functionality in relation to any Product in acquiring any Product.
(w) (Bundling discounts) Any discounts to the Price of a Product based on bundling with any of other Product will be discontinued if such bundled Product ceases to be supplied under your Agreement.
(x) (Intellectual property)
- (1) Subject to the limited rights expressly granted under these Terms, we (and our licensors) remain the sole owners of all right, title and interest (including intellectual property rights) in the Products (including any applications, software, scripts, instructions sets and Documentation that may be accessible or used in relation to a Product) and Content. No rights are granted to you under your Agreement other than as expressly provided.
- (2) You may access and use the Product, Content and the Documentation for your internal business purposes only as expressly permitted by these Terms, during the Term applicable to the relevant Product. You must not remove any proprietary (including trade mark or copyright) notices in relation to all such material. You are not permitted to modify such material except as expressly permitted by these Terms.
- (3) You grant us and our Affiliates and applicable content providers a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, transferable, unlimited license to use, reproduce, communicate, host, copy, distribute, modify, sell, license, publicly perform, transmit, display and otherwise deal with Data, including sales results (undisclosed or disclosed); settlement terms; property addresses; purchaser details; vendor details; bid data which will, if clicked as ‘undisclosed’ be used without identifying the property (e.g. suburb or street profile may be used); as required in response to your user driven actions, for the purposes of operation of or improving the Products, or for our general business purposes and the general business purposes of our Affiliates. Without limiting any other provision in these Terms, we will be entitled to disclose any Data that has been made publicly available, for example following the Valuer General release of equivalent information.
- (4) Our software may analyse Data using techniques such as machine learning when Data is sent, received or stored.
- (5) You are responsible for any content that you share or make public while using any Product and we will not be liable for any person accessing, copying, modifying or re-sharing your shared content.
- (6) You grant us and our Affiliates a non-exclusive, worldwide, perpetual, irrevocable, royalty-free sub-licensable, transferable, unlimited license to use and incorporate into our or our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or a User relating to the operation of our or our Affiliates’ services including any Product.
(y) (Confidentiality) You must, and must ensure that Users:
- (1) keep confidential our confidential information . Our confidential information includes all trade secrets and all financial, accounting, marketing and technical information, customer and supplier lists, pricing information, ideas, concepts, formulae, knowhow, technology, operating procedures, processes, knowledge and other information belonging to, used by or relating to us or our Affiliates, excluding any such information in the public domain; and
- (2) only disclose such confidential information to the extent required by law.
(z) (Termination) A party may terminate an Agreement by notice to the other party if the other party breaches the Agreement and:
- (1) the breach is capable of being remedied but the other party fails to remedy the breach within 14 days of the non-breaching party’s notice to remedy; or
- (2) the breach is not capable of being remedied and the breach is a material breach.
(aa) If you terminate the Agreement in accordance with paragraph (z) because of our material breach, we will refund any prepaid Price pro rata in respect of the remainder of the Term. If we terminate the Agreement in accordance with paragraph (z) because of your breach, you must pay us the balance of the Price in respect of the Term after that date of termination.
(bb) (Termination without cause) We may terminate the Agreement without cause in respect of any one or more Products on 14 days’ notice. If we terminate without cause, we will refund any prepaid Price pro rata in respect of the remainder of the Term after that date of termination.
(cc) (Termination for insolvency) Either party may terminate the Agreement immediately by notice if the other party is insolvent.
(dd) (Cross termination) The Agreement in respect of the Products Digital Sales Contract and Private Sales Contract terminates automatically if the Agreement terminates with respect to the Product Bidtracker.
(ee) (Liability) Our liability under or in connection with the Agreement is limited (at our option) to:
- (1) resupply of the relevant Product; or
- (2) payment of the cost of resupplying the relevant Product.
(ff) (Your Data Portability) Upon request by you made within 30 days after the effective date of termination or expiry of the Agreement, we will make your Data in respect of the Products Real Time Authority and Bidtracker (as requested) available to you for export or download. After such 30-day period, we will have no obligation to maintain or provide any Data.
(gg) (GST) Any amounts stated in the Agreement or determined for the purposes of the Agreement are stated or to be determined exclusive of GST, unless stated otherwise. If GST is imposed, assessed or levied on any supply made under the Agreement (Taxable Supply), the recipient of the Taxable Supply must pay to the supplier in addition to any other payment required by the Agreement the GST imposed on the Taxable Supply calculated at such percentage of the GST exclusive value of the supply as is applicable, being the rate of GST imposed, assessed or levied on the Taxable Supply at the date the Taxable Supply is made. The supplier of that Taxable Supply will deliver to the recipient a GST tax invoice(s) for that Taxable Supply in a form that complies with the requirements of the GST Law.
(hh) (Late payments) Without limiting any other right or remedy in connection with a failure to pay by the due date for payment, we may charge interest on any amount outstanding under the Agreement at the prevailing rate of penalty interest prescribed by the Penalty Interest Rates Act 1983 (Vic) from the due date for payment until such time as full payment of the amount outstanding is made by you.
(ii) (Notices): Notices must be in writing and must be given by:
- (1) hand delivery, pre-paid post or email to the address of a party set out in the Agreement (or updated by a party by notice); or
- (2) where we are the notifying party, other electronic means, including via Product inapp notification or posting on our website.
(jj) (Agreement) By signing the Agreement, you acknowledge that you have read and understood all of the terms set out here and you agree to be bound by them.
(kk) (Authority to sign) If you are signing on behalf of a company, partnership or any other legal entity, you warrant that you are authorised to bind that entity to the Agreement.
(ll) (No access or use without agreement) You must not access or use any Product unless you agree to and comply with all terms of the Agreement.
(mm) (Other defined terms): Other terms used in these Terms have the meanings below:
- (1) Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity;
- (2) Agreement means the document signed by you incorporating these terms and conditions;
- (3) Business Day means a day on which banks are open for business in Sydney, Australia excluding a Saturday, Sunday or public holiday in that city;
- (4) Company Details means the section of the Agreement headed ‘Company Details’;
- (5) Content means information obtained by us from publicly available sources or third party content providers and made available to you through a Product or pursuant to these Terms;
- (6) Control for means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
- (7) Data means any information or content entered or processed through any Product by you or your Users, including individual bids that are recorded prior to the auction result, final sales price, vendor contact details, purchaser contact details, solicitor details, settlement terms and date, addresses of real property and associated information in regards to the Product’s usage;
- (8) Digital Contracts has the meaning given in paragraph (p);
- (9) Disclosure Status means the status selected by a User indicating whether a vendor or purchaser of real property has consented to Data entered into Bidtracker being publicly disclosed by us or our Affiliates;
- (10) Documentation means the applicable Product’s documentation, its usage guides and policies, as updated from time to time, accessible via the web pages we maintain for a Product;
- (11) Force Majeure Event means any unavailability of a Product caused by circumstances beyond our reasonable control, including an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, internet service provider failure or delay, denial of service attack or any failure by a third party supplier;
- (12) GST and GST Law have the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
- (13) Initial Term means the term in respect of the relevant Product stated in the Product Details;
- (14) Malicious Code means code, files, scripts, agents or programs intended to do harm, including viruses, worms, time bombs and Trojan horses;
- (15) Personnel means your employees, consultants, contractors and agents;
- (16) Price means the price in respect of each Product set out in the Product Details;
- (17) Products has the meaning given in paragraph (b);
- (18) Product Details means the section of the Agreement headed ‘Product Details’;
- (19) Relevant Signatories has the meaning given in paragraph (p)(7);
- (20) Term means the Initial Term and each successive period for which the Agreement is renewed pursuant to paragraph (i) in respect of the relevant Product, subject to earlier termination of the Agreement, or the Agreement only in respect of a Product, in accordance with its terms;
- (21) User means an individual:
- (A) who is authorized by you to use a Service and for whom you have purchased a subscription (or in the case of any Product services provided by us without charge, for whom a Product service has been provisioned); and
- (B) to whom you (or, when applicable, we at your request) have supplied a user identification and password (for Products utilizing authentication). Users may include, for example, your Personnel employees, consultants, contractors and agents.
(nn) (Interpretation) In these Terms:
- (1) Headings and bold type are for convenience only and do not affect the interpretation of the Agreement or these Terms.
- (2) The singular includes the plural and the plural includes the singular.
- (3) Words of any gender include all genders.
- (4) Other parts of speech and grammatical forms of a word or phrase defined in these Terms have a corresponding meaning.
- (5) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate as well as an individual.
- (6) A reference to the Agreement includes these Terms.
- (7) A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.
- (8) A reference to a document includes all amendments or supplements to, or replacements or novations of, that document.
- (9) A reference to a party to a document includes that party’s successors and permitted assignees.
- (10) A reference to an agreement other than the Agreement or these Terms includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing.
- (11) A reference to insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.
- (12) No provision of the Agreement or these Terms will be construed adversely to a party because that party was responsible for the preparation of the Agreement or that provision.
- (13) Specifying anything in the Agreement after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.
- (14) Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.
- (15) The Agreement includes any schedule.
- (1) The Agreement is governed by the law in force in New South Wales, Australia.
- (2) If any provision of the Agreement is invalid under the law of any jurisdiction the provision is enforceable in that jurisdiction to the extent that it is not invalid, whether it is in severable terms or not.
- (3) No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
- (4) No rights arising out of or under the Agreement are assignable by you without our prior written consent.
- (5) The Agreement states all the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter. Neither party has relied on any statement by the other party not expressly included in the Agreement.
- (6) The Agreement may be executed in any number of counterparts.