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

    Subject to the terms and conditions of this Agreement, Realista will provide you with the following Services:
  • (a) (Agents) if you are an Agent, or use the Services in the capacity of an Agent, Realista will provide you with the following:
    • (i) the ability to maintain an Agent Profile;
    • (ii) the ability to maintain a Buyer List for Buyers who sign up directly with you;
    • (iii) the ability to create, edit and remove Listings on your Property List;
    • (iv) making available your Property List to Buyers to search; and
    • (v) the ability for you to communicate directly with Buyers on your Buyer List or with Buyers who elect to receive communications from you.
  • (b) (Buyers) if you are a Buyer, or use the Services in the capacity as a Buyer, Realista will provide you with the following:
    • (i) the ability to view Agent Profiles of Agents who are users of the System (but only those Agents who have created an Agent Profile);
    • (ii) the ability to sign up with one or more Agents, as a member of their Buyer List;
    • (iii) access and search each Agent’s Property List;
    • (iv) the ability to post your property, through an Agent, onto the System for other Buyers and Agents to view;
    • (v) the ability to advise an Agent of the type of property you are looking to rent or buy, and for the Agent to send you suggested Listings matching that criteria; and
    • (vi) the ability to communicate with Agents directly.
  • (c) (Additional Services) Realista may provide you with additional Services pursuant to:
    • (i) additional functionality which it determines to incorporate from time to time in the System; or
    • (ii) by you and Realista agreeing to enter into an Addendum to this Agreement, in respect of the additional Services. The particular Addendums which apply (if any) will be separately agreed between you and Realista.

1.4. Services may change at any time

  • (a) You agree that the Services which Realista may provide you via the System or the Website, may be modified or discontinued by Realista at any time with or without notice to you.
  • (b) If you are paying for Services which Realista withdraws due to no fault on your part, then you may wish to contact Realista to determine whether you are entitled to a refund or partial refund of any amounts you have pre-paid in respect of those withdrawn Services.

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:

  • (a) certain Services may be provided on a subscription basis by Realista in return for the payment of Fees (“Subscription Services”);
  • (b) certain Services may be provided in return for the payment of Fees, but other than on a subscription basis; and
  • (c) certain Services may be provided by Realista for no charge.

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:

  • (a) You agree to sign up for the Subscription Services for the period of the subscription specified by Realista at the time you purchase the relevant Subscription Services (“Subscription Period”).
  • (b) You may cancel your use of the Subscription Services at any time by written notice to Realista. Such cancellation will take effect immediately but you will still remain liable to pay the entire amount of the relevant Fee which applies to the end of the then current Subscription Period.
  • (c) If you do not cancel your use of the Subscription Services prior to the conclusion of a Subscription Period, then you will automatically be deemed to repurchase the Subscription Services for a further Subscription Period. This process will continue until such time as the Subscription Services are cancelled by you or Realista under this Agreement.
  • (d) Realista will charge your credit card (or any other method of payment) at the commencement of the Subscription Period for the Fee that applies to the Subscription Period and the relevant Subscription Services. Alternatively, Realista may determine to charge your credit card (or any other method of payment) in instalments, during the Subscription Period.

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

  • (a) Realista grants to you a personal, non-transferrable, revocable, non-exclusive licence to use the System and the Website, solely for the use of the Services.
  • (b) Your licence to use the System and the Website will terminate on the termination of this Agreement or the cancellation of your Account (whichever occurs sooner).

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:

  • (a) You agree that Realista will be the owner of all Intellectual Property in the User Content.
  • (b) The User Content and all other content and information on the System, including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is proprietary to, and will be owned by, Realista.

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:

  • (a) use the System or its content for any purpose, other than as permitted by this Agreement or separately agreed in writing by Realista;
  • (b) use another person’s name, account, identity or password without permission, or use the System while impersonating another person;
  • (c) access, monitor or copy any content or information of the System using any robot, spider, scraper or other automated means or any manual process for any purpose without Realista’s express written permission;
  • (d) violate the restrictions in any robot exclusion headers on the System or bypass or circumvent other measures employed to prevent or limit access to the System;
  • (e) take any action that imposes, or may impose, as measured by Realista in its sole and absolute discretion, an unreasonable or disproportionately large load on its server infrastructure;
  • (f) deep-link to any portion of the System (including any website through which you access the System) for any purpose apart from where expressly permitted by this Agreement or with the prior written consent of Realista;
  • (g) "frame", "mirror" or otherwise incorporate any part of the System into any other website or software without Realista’s prior written consent; or
  • (h) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Realista in connection with the System or the Services.

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:

  • (a) your User Content is not confidential (for the avoidance of doubt communications between users of the System, using functionality contained in the System, are strictly confidential);
  • (b) you are solely responsible for the User Content you or your Representatives post to the System;
  • (c) Realista may reproduce all User Content on the System and will determine in its sole and absolute discretion how it presents your User Content on the System;
  • (d) Realista may make any modifications to your User Content in its sole and absolute discretion, before presenting your User Content on the System, except in respect of any of your trade marks and/or brands; and
  • (e) Realista may determine whether or not to attribute the User Content to you, or remain silent on any attribution.

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”):

  • (a) User Content that may infringe the Intellectual Property of any person;
  • (b) User Content that impersonates any person or entity or otherwise misrepresents your relationship with Realista or any other person;
  • (c) User Content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
  • (d) User Content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
  • (e) User Content that would constitute, encourage, promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person;
  • (f) unsolicited promotions or SPAM;
  • (g) User Content which contains the private and/or personal information of any person; and/or
  • (h) User Content which contains viruses, malware or any other malicious software or data.

5.7. You agree that:

  • (a) Realista will have no responsibility or liability for any User Content or Infringing Content posted, stored or uploaded on the System, or for any loss or damage suffered by you or any other person as a result of the System storing, holding, or making available, any User Content or Infringing Content to users of the System; and
  • (b) Realista is under no obligation to review any User Content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.

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:

  • (a) you posting or uploading any Infringing Content to the System; or
  • (b) any legal proceedings or any claim made against Realista by a third party, which arises directly or indirectly from any Infringing Content posted or uploaded by you to the System.

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:

  • (a) Realista considers that you have breached any of your obligations under this Agreement;
  • (b) you fail to pay any Fees by the date they are due;
  • (c) you are using the Services in a manner which in Realista’s sole and absolute opinion, is offensive, immoral, unethical or is likely to bring Realista into disrepute;
  • (d) you commit fraud or an act of dishonesty; and/or
  • (e) you breach Realista’s privacy policy, your privacy policy, the Privacy Laws or a combination of them.

6.2. You agree:

  • (a) in addition to the powers of Realista described in clause 6.1, Realista may suspend the Services to you at any time or for any reason, with or without notice to you;
  • (b) Realista’s suspension of the Services may, in Realista’s sole and absolute discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and
  • (c) Realista may in its sole and absolute discretion reactivate the Services for you at any time following their suspension.

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:

  • (a) in your capacity as a Buyer, Agents whom you sign up with to be on their Buyer List; or
  • (b) in your capacity as an Agent, Buyers who sign up with you to be on your Buyer List.

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:

  • (a) comply with all Privacy Laws in relation to Personal Information, whether or not you are an organisation bound by the Privacy Act;
  • (b) if you are a small business operator under the Privacy Act, choose to be treated as an organisation bound by the Privacy Act under section 6EA of the Privacy Act during the term of this Agreement;
  • (c) collect, store, use, disclose or otherwise deal with Personal Information as directed by us, except to the extent that compliance with the direction would cause you to breach a Privacy Law;
  • (d) use or disclose Personal Information only for the purposes expressly permitted under Realista’s privacy policy and your privacy policy;
  • (e) assist Realista to comply with our obligations under any Privacy Law as they relate to Personal Information;
  • (f) promptly notify Realista if you become aware of any breach or alleged breach of your obligations under this clause and comply with any reasonable direction from Realista with respect to remedying that breach;
  • (g) ensure that any person to whom Personal Information is disclosed under this Agreement, does not do any act, engage in any practice, or omit to do any act or engage in any practice which, if done, engaged in or omitted to be done by you would constitute a breach of this clause 7;
  • (h) not do any act, engage in any practice, or omit to do any act or engage in any practice that:
    • (i) would result in a breach of a Privacy Law if the Privacy Law applied to those things done, engaged in or omitted to be done by you; or
    • (ii) would cause Realista to breach or be taken to breach a Privacy Law;
  • (i) give Realista all information and access to your premises, staff, processes and systems required by Realista to enable Realista to assess or audit your compliance with this clause 7;
  • (j) take all reasonable steps to ensure that the Personal Information is protected against misuse, interference and loss, and from unauthorised access, modification or disclosure, including without limitation undertaking any staff training as may be required; and
  • (k) not disclose any Personal Information to a person outside Australia without Realista’s prior written consent (which can be withheld in Realista’s absolute discretion). Realista may revoke any consent granted under this clause (in whole or in part) if you are in breach of any Privacy Laws or this clause 7 and have not rectified that breach within 10 Business Days. If Realista revokes its consent you must transfer the Personal Information to such locations as directed by Realista.

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:

  • (a) you will not use the Services for any illegal or fraudulent purpose or for any purpose other than as permitted by this Agreement;
  • (b) you will comply with all laws which must be complied with in relation to the Services and any other goods and services described in this Agreement;
  • (c) you warrant that you will not, by engaging Realista to provide the Services, place Realista in breach of any law or obligation owing to a third party;
  • (d) you will not undertake any act or cause any omission which will bring Realista, its brand or its other clients into disrepute;
  • (e) you will not use the Services in a manner that may lead to the suspension of the Services under clause 6.1;
  • (f) you will provide Realista with all information requested by Realista which Realista requires to provide the Services; and
  • (g) all information provided by you to Realista in relation to the Services and this Agreement, is true and correct in every detail.

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:

  • (a) the terminating party providing written notice to the other party; or
  • (b) you or Realista closing your Account. Realista is not required to give you any advance written notice if it elects to close your Account.

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

  • (a) you commit a breach of this Agreement which in Realista’s sole and absolute opinion is incapable of rectification; or
  • (a) you fail to rectify a breach of this Agreement which can be rectified, within 7 days after receiving written notice from Realista for you to do so,

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:

  • (a) in the case of termination by Realista under clause 10.2 (but not clause 10.3), or termination by you under clause 16.1, you will not be responsible for paying any further Fees in respect of any unused portion of the Subscription Period; or
  • (b) in any other case, you will still remain liable to pay the entire amount of the relevant Fee which applies to the end of the then current Subscription Period.

10.5. Upon the termination of this Agreement:

  • (a) Realista will promptly withdraw the use of the Services from you;
  • (b) subject to clause 10.4, you will remain liable for any unpaid Fees, including those which Realista are yet to invoice as at the date of termination;
  • (c) Realista may still collect any amounts owing by you to Realista on any account whatsoever; and
  • (d) Realista may retain your User Content in the System and may use or disclose that User Content as it sees fit.

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:

  • (a) any conduct by you or your Representatives;
  • (b) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
  • (c) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
  • (d) a significant demand is placed on Realista’s services, the System or the Website which is above the usual level of demand and which results in a failure of Realista’s software and hardware to function correctly (including the System and Website);
  • (e) the failure of any third party to fulfil any obligation to Realista; or
  • (f) any other circumstances or event similar to the above which are beyond the reasonable control of Realista.

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:

  • (a) in the case of services:
    • (i) the supplying of the services again; or
    • (ii) the payment of the cost of having the services supplied again; and
  • (b) in the case of goods, any one or more of the following:
    • (i) the replacement of the goods or the supply of equivalent goods;
    • (ii) the repair of the goods;
    • (iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    • (iv) the payment of the cost of having the goods repaired.

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:

  • (a) any breach of this Agreement by you or your Representatives;
  • (b) any breach of your obligations under any applicable law; and/or
  • (c) any claim, action, demand or legal proceedings issued against Realista by a third party as a result of your use of the System, a breach of this Agreement by you or your Representatives, or any negligence by you or your Representatives.

13. PRIORITY

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

  • (a) any Addendum to this Agreement; then
  • (b) the terms and conditions set out in the body of this Agreement; then
  • (c) any other documents or information incorporated by reference into this Agreement.

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:

  • (a) a reference to this Agreement means a reference to an agreement between you and Realista on the terms and conditions of this document, together with each Addendum, and includes an amendment or supplement to, or replacement or novation of this Agreement;
  • (b) the words “includes” or “including” mean “includes without limitation” or “including without limitation”;
  • (c) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
  • (d) the singular includes the plural and vice versa;
  • (e) a reference to any gender includes a reference to all other genders;
  • (f) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
  • (g) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
  • (h) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
  • (i) headings are inserted for convenience only and do not affect the interpretation of this Agreement.

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:

  • (a) in the case of a notice delivered by hand, when so delivered;
  • (b) in the case of a notice sent by pre-paid post, on the third day after the date of posting;
  • (c) in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or
  • (d) in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient’s email server that the email has been received by the recipient.

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.