REALISTA –TERMS & CONDITIONS

These terms and conditions (“this Agreement”) apply to the provision of the Services by REALISTA PTY LTD ACN 607 159 697 to its customers and end users (“you”). This Agreement forms a binding legal agreement between you and Realista. You should read the terms and conditions of this Agreement carefully. Without limiting the way in which you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button on your computer screen, smart phone or tablet indicating your acceptance of this Agreement, or by proceeding to use the System and/or the Services, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.

1. ENGAGEMENT OF REALISTA

1.1. Provision of the Services

Realista agrees to provide you with the Services, and you agree to obtain the Services from Realista, in accordance with and subject to, the terms and conditions of this Agreement.

1.2. In what capacity are you bound under this Agreement?

You may use the Services in the capacity of an Agent, or of a Buyer, or in both capacities. This Agreement will then apply to you in the capacity in which you use the Services.

1.3. The Services

1.4. Services may change at any time

1.5. Only obligation

Subject to the terms of this Agreement, the provision of the Services constitute Realista’s only obligation to you.

1.6. Non-exclusive appointment

The appointment of Realista as a service provider under this Agreement is non-exclusive. It does not restrict Realista’s right to contract with other persons for the sale of goods and services similar to the Services.

2. ACCOUNT SETUP

2.1 Realista may require you to create an Account on the System for the purposes of using the Services. Once an Account is created, Realista may provide you with a login for use by you and your personnel.

2.2 The Account on the System will be created using Realista’s online sign up process, or any other method specified by Realista from time to time.

2.3 The Account will permit you to login to the System to manage your Account and other details involving your relationship with Realista.

2.4 Notwithstanding clause 2.7, you agree to keep confidential and secure any usernames or passwords used to access the Account.

2.5 You warrant that all information provided to Realista in the setup of your Account or requested by Realista from time to time is true and correct in every detail.

2.6 You agree that you will only use the Account and the System for the purposes of using the Services and for no other purpose.

2.7 You may authorise your employees to access the Account and use the System and the Services on your behalf. You remain responsible and vicariously liable for the use of the Account and the System by your employees. You must not authorise anyone under the age of 18 years to use your Account or the System on your behalf.

3. PAYMENT AND TAXES

3.1 You acknowledge and agree that Realista will determine in its sole discretion the pricing of its Services, and will publish such pricing on its Website from time to time. Realista will also determine the basis upon which it is willing to provide the Services, which will be as follows:

3.2 Realista will advise you at the time you sign up for, or purchase the Services, what the Fees are for the Services and the basis upon which it is supplying the Services (or any part thereof) to you, as described in clause 3.1. This may be communicated to you via the System or via the Website.

3.3 Realista may at any time, by written notice to you, modify the basis upon which it is providing the Services to you (as described in clause 3.1), and/or the Fees for such Services, and notify you the date the change is to take effect. Such a modification will constitute an amendment to this Agreement and clause 16.1 will apply accordingly.

3.4 You agree to pay Realista the Fees for supplying the Services under this Agreement. The Fees must be paid in accordance with the payment terms specified by Realista to you, or communicated on its Website, from time to time. If no payment terms are specified by Realista then you must pay the Fees to Realista within 7 days of the date of any relevant invoice from Realista.

3.5 If you purchase any Subscription Services from Realista, then:

3.6 Unless expressly specified to the contrary by Realista, the Fees payable to Realista under this Agreement are expressed to be exclusive of all Taxes. If any Taxes are levied on Realista in respect of the Fees, then you must pay an additional amount to Realista on account of those Taxes, such that after deduction of those Taxes, Realista receives no less than the Fees.

4. INTELLECTUAL PROPERTY

4.1. Realista’s existing Intellectual Property

You acknowledge and agree that Realista retains ownership at all times of all Intellectual Property which subsists in the Website and the System, and any other information, software, design or any other item or thing that Realista or its Related Entities provides to you, makes available to you or develops in the course of providing the Services. You hereby assign any and all Intellectual Property to Realista which you may have in any of the foregoing, including any Intellectual Property created after the date of this Agreement.

4.2. Grant of Licence by Realista

4.2. No infringement

You must not infringe the Intellectual Property of Realista or a third party in connection with the Services. You continually indemnify Realista against any Loss that Realista incurs or suffers, as a direct or indirect result of a breach of the Intellectual Property of Realista or a third party in connection with your use of the Services or the System.

4.3. Agent Profiles, Property Lists, Listings and Buyer Lists

You will retain all Intellectual Property in your Agent Profile, Property Lists, Listings and Buyer Lists. You hereby grant a non-exclusive, worldwide, transferrable, perpetual, irrevocable, royalty free licence to Realista, for Realista to use, display, store, copy, modify, reproduce and communicate your Agent Profile, Property Lists, Listings and Buyer Lists, whether as part of the System and Website, or otherwise. For the avoidance of doubt, this licence will continue after the cancellation of your use of the Services or the termination of this Agreement.

5. GENERAL PROVISIONS RELATING TO USER CONTENT

5.1. Subject to clause 4.4:

5.2. Apart from where expressly permitted by Realista, you agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or Services obtained from or through the System. Additionally, you agree not to:

5.3. To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in any User Content you provide to Realista, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to Realista making all uses, edits and modifications of the User Content in its sole discretion, including, without limitation, as further described in this Agreement.

5.4. You agree that:

5.5. You agree that Realista is under no obligation to edit, monitor or control the User Content which is published to the System by any end user, however Realista reserves the right to do so.

5.6. You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish on the System, any of the following (“Infringing Content”):

5.7. You agree that:

5.8. Subject to clause 5.7, you may notify Realista at any time of any User Content which you consider to be Infringing Content on the System, and which you request that Realista remove from the System or modify (“Take Down Notice”). You agree to follow any procedures which Realista specifies from time to time in relation to you providing a Take Down Notice, and provide Realista with all information which it requests in considering your Take Down Notice, including information verifying your identity and the basis upon which you consider the relevant User Content to be Infringing Content. You acknowledge that notwithstanding your Take Down Notice, Realista is under no obligation to remove any Infringing Content other than where stated in this Agreement or where required by law. If Realista does remove allegedly Infringing Content, then you acknowledge that such removal is done on a without prejudice basis, and upon such removal, you agree to release Realista from any action, claim, proceedings, damages or other obligation which you may make, institute or claim against Realista due to the publication of the allegedly Infringing Content on the System.

5.9. You indemnify and agree to keep indemnified, Realista, its agents, employees and officers against all loss, cost, expense or damage which Realista, its agents, employees or officers suffer or incur, as a direct or indirect result of:

6. SUSPENSION OF THE SERVICES

6.1. Without limiting Realista’s other rights arising under this Agreement, Realista may suspend your use of the Services at any time, with or without notice to you if:

6.2. You agree:

7. PRIVACY

7.1. You agree that by using the Services, that Realista may share your contact details with, and you consent to being contacted by:

7.2. Realista may collect your personal information, personal information of your personnel and customers, and the personal information of Agents and Buyers including names, contact details and payment details where relevant (including, without limitation, credit card details) (“Personal Information”). You may also collect Personal Information of other users which may be contained in User Content you upload to the System, or in any Property Lists, Buyer Lists or Listings which you maintain.

7.3. You must:

7.4. The obligations of privacy imposed by this Agreement survive the expiration or termination of this Agreement.

7.5. Unless otherwise requested in writing by you, Realista may use your corporate identity (if applicable) as part of promoting the Services and Realista’s other goods and services.

8. RELATIONSHIP OF THE PARTIES

Realista is an independent service provider to you and is not your partner, agent or employee. You do not have the power to bind Realista in relation to any obligation owing to a third party. You are not an employee, partner, joint venture partner, or agent of Realista.

9. YOUR GENERAL OBLIGATIONS

You warrant and agree that:

10. TERM AND TERMINATION

10.1. This Agreement starts on the Commencement Date and will remain in force until terminated in accordance with this clause 10 or pursuant to clause 16.1.

10.2. This Agreement may be terminated at any time by you or by Realista. Such termination may be effected by:

10.3. This Agreement may be terminated at any time by Realista if:

in which case Realista may terminate this Agreement by written notice to you, or by deactivating your Account (with or without notice to you).

10.4. If this Agreement is terminated during a Subscription Period, then you will be deemed to have cancelled your Subscription Services and:

10.5. Upon the termination of this Agreement:

10.6. Clauses 3, 4.4, 7, 8, 10.4, 10.5, 11, 12, 13, 14 and 16 will survive the termination of this Agreement.

11. LIMITATION OF LIABILITY AND IMPLIED TERMS

11.1. You acknowledge that Realista has made no warranties that the Services, System or Website will be error free.

11.2. You agree that Realista will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Realista complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:

11.3. You acknowledge that Realista has not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by Realista under this Agreement other than those warranties expressly contained in this Agreement. Subject to clauses 11.5 and 11.6, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded to the maximum extent permitted by law.

11.4. You agree that the maximum liability of Realista under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement, will not exceed the amount of the Fees paid for the Services by you.

11.5. If the Competition and Consumer Act 2010 (Cth) (or analogous legislation in a relevant jurisdiction) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of Realista is limited, at the option of Realista, to:

11.6. Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Realista will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies, arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by statute or by the Australian Consumer Law.

11.7. If you are a consumer (as defined in the Competition and Consumer Act 2010 (Cth)), then nothing in this Agreement restricts, limits or modifies your rights or remedies against Realista for the failure of a statutory guarantee under the Australian Consumer Law where such restriction, limitation or modification would be prohibited by the Competition and Consumer Act 2010 (Cth).

12. YOUR INDEMNITY

You indemnify Realista and its Representatives (“Indemnified”) against all loss, cost, expense or damage (including legal costs on a full indemnity basis) which the Indemnified suffer or incur as a direct or indirect result of:

13. PRIORITY

In the event of any inconsistency, this Agreement must be interpreted in accordance with the following order of priority:

14. DEFINITIONS AND INTERPRETATION

14.1. In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

Account

means an account with the System which allows you to access and use the System and the Services.

Addendum

means an addendum to this Agreement which specifies additional terms and conditions to those contained in this document

Agent

means a real estate agent who uses the Services

Agent Profile

means a profile of an Agent which is stored and/or displayed by the System

Australian Consumer Law

means the law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Buyer

means a person who is looking to purchase or rent a Property

Buyer List

means a list of Buyers who have signed up with an Agent

Commencement Date

means the date that this Agreement is to commence, being the earliest date that you first use the System or the Services.

Fees

means the fees and charges to be paid to Realista by you as specified by Realista from time to time

Indemnified

has the meaning given in clause 12.

Infringing Content

has the meaning given in clause 5.6.

Intellectual Property

means all present and future rights, title and interest in and to inventions, know-how, patents, patent applications, registered and unregistered trade marks, service marks, registered and unregistered designs, copyrights, circuit layout, domain names, internet addresses, computer program, confidential information, trade secrets, trade or business names and brand names.

Listing

means a listing of a property for rent or purchase where the Agent represents the relevant landlord or vendor

Loss

means any loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage.

Realista

means GAZZAPORE STATION PTY LTD ACN 607 159 697.

Personal Information

has the meaning given in clause 7.1.

Privacy Act

means the Privacy Act 1988 (Cth) or any analogous legislation in a relevant jurisdiction.

Privacy Laws

means the Privacy Act and any other laws that apply to you or Realista that relates to privacy or to the collection, use, disclosure or handling of information about individuals (including a law of a state or territory relating to privacy) and any related code of practice by which you or Realista are bound. “Privacy Laws” will include the Spam Act 2003 (Cth) and the DO Not Call Register Act 2006 (Cth) or any analogous legislation in a relevant jurisdiction.

Property List

means the Listings maintained by an Agent in the System

Related Entities

has the same meaning as under the Corporations Act 2001 (Cth).

Representative

means any director, officer, employee, agent, contractor, subcontractor, advisor or Related Entity of a party.

Services

means the goods and services which Realista will provide as described in clause 1.3.

Subscription Period

has the meaning given in clause 3.5(a).

Subscription Services

has the meaning given in clause 3.1(a).

System

means Realista’s Buyer and Property List management system, which may be accessed via its Website, smartphone application or tablet application, or other computer software as specified by Realista from time to time, and which provides the functionality described as part of the Services in this Agreement and any other functionality determined by Realista from time to time in its sole and absolute discretion.

Taxes

means any and all taxes which may apply to the payment of the Fee or other amounts to Realista under this Agreement and includes, without limitation, withholding taxes, GST, VAT, sales tax and other similar taxes, but not taxes on a party’s income.

User Content

means any written content which you submit to the System, including, without limitation, each Listing, your Buyer List, your Property List, postings on the System, data on the System (including any data available (in material form or code form) in respect of any online discussions between users of the System or any suggestions or ideas, or any other work, item or thing you upload to the System or provide to Realista.

Website

means www.realista.com.au or any other website specified by Realista from time to time from which Realista will provide the Services.

14.2. In the interpretation of this Agreement, unless the contrary intention appears:

15. DISPUTES, QUESTIONS, CONCERNS

Any concerns or issues relating to your use of the Services should be directed to Realista in writing by sending an email to EMAIL ADDRESS.

16. MISCELLANEOUS

16.1. This Agreement may be amended by Realista at any time. The amendments will take effect when Realista first gives notice to you of the amendments, or at any other time specified in Realista’s notice. If you do not accept the amendments, then you must terminate this Agreement, either by written notice to Realista or by closing your Account, within five days following Realista providing notice of the amendments to you. A failure on your part to effect such termination will mean that you are deemed to have accepted the amendments. If you do terminate this Agreement in accordance with the foregoing and have pre-paid any Services, then you should contact Realista as at the date of termination to determine whether you are entitled to a pro-rata refund of the amount prepaid.

16.2. Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. If you wish to send a notice to Realista, then you must send it to the address of Realista specified on its website from time to time. Realista may send notices to you via the contact details you enter into the System, or via the System itself. A notice is taken to be received:

16.3. Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.

16.4. A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

16.5. If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.

16.6. Realista may assign its rights and novate or transfer obligations which arise under this Agreement, with or without notice to you. You must not assign, novate or otherwise transfer your rights or obligations under this Agreement without the prior written consent of Realista (which may be withheld). You must not subcontract or sub-license your rights or obligations under this Agreement without the prior written consent of Realista (which may be withheld).

16.7. The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

16.8. This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.