This Agreement sets out the terms under which you and your Associated Entities may submit Listing Content to Homely, how Homely will display that Listing Content on the Website (as defined below) and participation in the Homely Premier Agent program.
By accessing or using the Website, registering an online account with Homely (Account), or submitting Listing Content to Homely, you warrant and represent that that you have read, understood and agree to the terms of this Agreement.
In this Agreement:
(a) "Agent" means a Licensed real estate agent employed or contracted by you or an Associated Entity;
(b) "Agent Profile" means a profile page for an Agent with the features described on the website at www.agent.homely.com.au;
(c) "Associated Entities" means Agents, franchisees, individuals, companies, and/or data listing aggregators that have authorised you to provide Listing Content to third parties including Homely;
(d) "Harmful Code" means computer code or routine that is harmful, destructive, disabling or that assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data;
(e) "Homely" means Homely Pty Ltd (ACN 165 263 678), an Australian company located at Level 22, 55 Collins St, Melbourne, Victoria (contact phone 1300 466 359);
(f) "Intellectual Property Rights" means all intellectual property rights, including the following rights:
(i) patents, copyright (including future copyright), rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have Confidential Information kept confidential;
(ii) any application or right to apply for registration of any of the rights referred to in paragraph (i); and
(iii) all rights of a similar nature to any of the rights in paragraphs (i) and (ii) that may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
(g) "Licensed" means licensed to practice as a real estate agent in Australia under the applicable state or territory legislation;
(h) "Listing Content" means information relating to homes you have listed for sale or rent, including images, video, text, data and/or other materials (Listing Content), to Homely through property listing data feeds or by direct upload from the agent.
(i) "Non-excludable condition" is defined in paragraph 18;
(j) "Premier Agent Account" means an Account with the additional features described on the website at http://premier.homely.com.au;
(k) "Third Party Website" means a website controlled by a person other than Homely and which is linked to the Website; and
(l) "Website" means the Homely websites at www.homely.com.au, www.agent.homely.com.au and http://premier.homely.com.au.
2. Term of Agreement
2.1 This Agreement starts on the date that you first provide Listing Content to Homely, and continues until terminated in accordance with paragraph 21.
3. Listing Content
3.1 All Listing Content (whether provided by you or an Associated Entity):
(a) must be up-to-date, complete and accurately describe the applicable properties;
(b) must comply with:
(i) the Listing Content Guidelines applicable to the type of property or listing which is the subject of the Listing Content; and
(ii) all applicable laws and regulations including (without limitation) those relating to privacy, misleading and deceptive conduct, and defamation;
(c) must not:
(i) infringe the rights (including Intellectual Property Rights) of any person;
(ii) be offensive, or otherwise inappropriate having regard to the purpose of the Website;
(d) must be provided to Homely:
(i) in the data feed format advised by Homely to you from time to time; and
(ii) free from Harmful Code.
3.2 You must ensure that your Listing Content at all times accurately reflects the status of a property. Particularly, within 72 hours of a contract being entered into in respect of a property you must either update the Listing Content for that property to record the property's new status, or remove the applicable Listing Content from the Website.
You acknowledge that the purpose of the Website is to display the Listing Content together with functionality and other information permitting users to search for properties. Accordingly, by providing your Listing Content to Homely:
(a) you grant to Homely a perpetual, irrevocable, non-exclusive, fully paid up, transferable and worldwide license to use, reproduce, publish, publicly perform, display, communicate, distribute, adapt, translate, modify, and create derivative works from, your Listing Content, anywhere in the world in any existing or future form; and
(b) you grant each user of the Website a non-exclusive licence, for their private and non-commercial use only, to access, use and reproduce (for example, to print and download) your Listing Content as permitted by the User Terms and Conditions.
5. Displaying Listing Content
5.1 In consideration of the licence granted in paragraph 4 and subject to the terms of this Agreement, Homely agrees to make your Listing Content available to users through the Website, in accordance with the terms of this Agreement and in the manner and form set out in the Listing Content Guidelines.To avoid doubt, you agree that the licence granted in paragraph 4(a) permits Homely to modify the Listing Content, in its sole discretion and for any reason, prior to displaying it on the Website. Without limiting the previous sentence, Homely may modify your Listing Content to comply with the Listing Content Guidelines, to enable users to access it on mobile and tablet devices, for stylistic reasons, or for other reasons considered appropriate by Homely.
5.2 Homely may at any time, without liability to you or an Associated Entity, in its sole discretion and for any reason, remove, modify, or suspend access to any or all Listing Content, or decline to use any Listing Content, without notice. Without limiting the previous sentence, Homely may remove, modify, or suspend access to, or decline to use, any or all Listing Content if it considers that the Listing Content does not comply with paragraph 3.1, if it is required to do so by a regulatory body or any relevant authority, or for other reasons considered appropriate by Homely.
6. Prohibited use of the Website
6.1 You must not, at any time:
(a) alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose;
(b) adapt, translate, reverse engineer, dissemble or decompile the Website or any part of the Website;
(c) directly or indirectly, introduce or permit the introduction of, any Harmful Code, or in any manner whatsoever corrupt, degrade or disrupt the Website;
(d) remove any copyright, trademark, electronic rights management information or other proprietary rights notices contained in or on the Website;
(e) use any robot, spider, site search/retrieval application, offline reader, or other device to retrieve or index any part of the Website;
(f) collect any information about users of the Website (including usernames and/or email addresses) for any purpose other than the purposes of the Website;
(g) reformat or frame any part of the web pages that are part of the Website;
(h) create or transmit unwanted electronic communications such as 'spam' to other users of the Website or otherwise interfere with a user's enjoyment of the Website;
(i) use the Website to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that which is deemed threatening or obscene;
(j) act in a way that, in Homely's sole opinion, imposes or may impose an unreasonable or disproportionately large load on Homely's IT infrastructure;
(k) use the Website, intentionally or unintentionally, to violate any applicable local, state, national or international law; or
(l) collect or store personal data about other users in connection with the prohibited activities described in this paragraph 6.1.
6.2 Notwithstanding paragraph 6.1, Homely permits public search engines to use spiders or other search and retrieval applications to copy materials from the Website for the sole purpose of creating publicly available search indices of the materials, but not caches or archives of materials from the Website.
7.1 You may register an Account by submitting the required information through the Website or, where the required information has been provided directly to Homely, by logging into your Account for the first time. The required information may include your and each Associated Entity's name, company number (if applicable), contact details, billing details, and any other information reasonably required by Homely to verify the identity or qualifications of you or an Associated Entity. If any of your Account information changes you must promptly notify Homely in writing of the changes.
7.2 You or an Associated Entity may register an Agent Profile for any Agent. You may also permit an Agent to register their own Agent Profile. To avoid doubt, any Agent who is permitted to register an Agent Profile, or for whom an Agent Profile is registered, must be (and remain at all times while their Agent Profile is operational) duly Licensed.
7.3 You must ensure that all usernames and passwords provided by Homely are kept confidential and secure at all times. You are responsible for all activity that occurs under or through your Account, including any activity of an Associated Entity or Agent.
7.4 There is no charge for registering a standard Account or Agent Profile.
7.5 You may cancel your Account or any Agent Profile at any time by notifying Homely in writing.
8. Premier Agent Accounts
8.1 You can register for a Homely 'Premier Agent Account' for you or any Associated Entities by submitting your information at http://premier.homely.com.au. Information about the features of a Premier Agent Account is set out on the Website.
8.2 By registering a Premier Agent Account you agree to pay the applicable fees for a Premier Agent Account, as set out on the Website or as otherwise agreed in writing with Homely.
8.3 A Premier Agent Account starts on the date that Homely accepts your offer to register a Premier Agent Account and will continue until you cancel that Premier Agent Account (as set out in paragraph 8.4) or this Agreement is terminated.
8.4 You may cancel a Premier Agent Account (but still retain a standard Account) at any time by notifying Homely in writing. Homely will not refund any amounts prepaid for a Premier Agent Account.
9. Pricing and payment
9.1 All prices listed on the Website are in Australian Dollars and are exclusive of all applicable taxes including GST.
9.2 You must pay all amounts required under this Agreement monthly in advance. If you do not pay all amounts required under this Agreement, in addition to any rights or remedies that Homely may have under this Agreement or at law, Homely may suspend or terminate your Account and any Agent Profiles, and remove any Listing Content from the Website.
9.3 Credit card numbers are NOT stored in our database. We do use third party payment processing services and payment gateway providers (PayPal and recurly.com) who encrypt and store your credit card to perform monthly recurring invoicing. We do have access to the billing name, address and last 4 digits only to verify the card that was used.
10.1 Words or expressions used in this paragraph 10 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this paragraph.
10.2 Any consideration payable or to be provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as 'GST inclusive', does not include any amount on account of GST. If GST is payable on any supply made under or in connection with this Agreement (not being a supply the consideration for which is specifically described in this Agreement as 'GST inclusive'), the recipient of the supply must pay to the supplier, an additional amount equal to the GST payable on the supply provided that the supplier gives the recipient a tax invoice for the supply.
10.3 If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST group that party is a member of (as the case may be), is entitled for that loss, cost or expense.
11. Intellectual Property Rights
11.1 You (or your third party licensors including applicable Associated Entities) retain all rights, title and interests (including Intellectual Property Rights) in the Listing Content. You must ensure you have the lawful right to provide all Listing Content (whether provided by you or an Associated Entity) to Homely for the purposes set out in this Agreement, in accordance with the warranty in paragraph 13(a).
11.2 Homely (or its third party licensors) owns all rights, title and interests (including Intellectual Property Rights) in the Website (excluding the Listing Content). Nothing in this Agreement conveys to you any rights, title or interests in the Website.
You represent and warrant that:
(a) you will comply with all laws applicable to the Listing Content;
(b) you have the lawful right to provide the Listing Content to Homely and to grant the licences set out in paragraph 4, including that you have obtained and will maintain during the term all necessary licences, rights, consents, and permissions:
(i) permitting you to act as a Licensed real estate agent or agency (as applicable); and
(ii) from the owner of a property included as Listing Content.
(c) you will not submit any Listing Content that does not comply with paragraph 3.1;
(d) Homely's use of the Listing Content as contemplated by this Agreement will not infringe the rights (including Intellectual Property Rights) of any person;
(e) your use of the Website will comply at all times with this Agreement and any directions published from time to time by Homely on the Website; and
(f) you accept all liability for any unauthorised use of your Account except for unauthorised use resulting from any negligent act or omission legally attributable to Homely.
14. Changes to this Agreement
14.1 Homely may change the terms of this Agreement as follows:
(a) if Homely reasonably considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the terms of this Agreement as amended on the Website; or
(b) if Homely reasonably considers that the change is likely to have a significant detrimental impact on you, it will make the change 30 days after it has notified you of the change by displaying a notice on the homepage of the Website.
14.2 If you do not accept a change made by Homely to the terms of this Agreement, your only remedy (except as set out elsewhere in this Agreement) is to immediately:
(a) cease providing Listing Content; and
(b) cancel your Account by notifying Homely in writing.
15. Third Party Websites
You acknowledge that you may be able to access Third Party Websites from the Website. You agree with Homely that:
(a) Homely makes no representations, and has no liability, to you arising from or in connection with any use of any Third Party Website or any information or other content accessible to you from any Third Party Website; and
(b) your access to and use of any Third Party Website and information and other content available on it may be governed by terms imposed by the operator of the Third Party Website.
16.1 You are granted a limited, non-exclusive right to create a text hyperlink to the Website for non-commercial purposes, provided the link does not:
(a) portray Homely or any of its products or services in a false, misleading, derogatory or otherwise defamatory manner; and
(b) link to a site that contains any adult or illegal material or any material that is offensive, harassing or otherwise objectionable including pornographic, hateful, racially or ethnically offensive material.
16.2 This limited right may be revoked at any time.
16.3 You may not use a Homely logo or other proprietary graphic of Homely to link to the Website without the express written permission of Homely.
17. No availability or functionality guarantee
Homely does not make any representations or warranty about the availability or functionality of the Website or that the Listing Content will be displayed in a particular form, or at all. To the maximum extent permitted by applicable law, Homely excludes all liability to you, and each Associated Entity, whether in contract, tort (including negligence) or otherwise:
(a) arising from any unavailability, or failure in the functionality, of the Website;
(b) arising from or in connection with any third party website;
(c) arising from or in connection with the use (or lack of use) of the Listing Content by Homely; or
(d) arising from any circumstance beyond the reasonable control of Homely.
18. Non-Excludable conditions
Nothing in this Agreement operates to exclude, restrict or modify the application of any Non-excludable condition. "Non-excludable condition" means any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other statute, the exclusion, restriction or modification of which would:
(a) contravene that statute; or
(b) cause any term of this Agreement to be void.
19. Exclusions and limitations of liability
19.1 Except in relation to Non-excludable conditions:
(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Homely are expressly excluded under this Agreement;
(b) Homely's liability to you or any Associated Entity arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(i) Homely will have no liability whatsoever for any loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of or damage to reputation, loss of capital, downtime costs, loss under or in relation to any other contract, loss of data, loss of use of data or any other economic, special, indirect or consequential loss, harm, damage, cost or expense (including legal fees) incurred by you, an Associated Entity or anyone else under or in connection with this Website or the use (or lack of use) of any Listing Content; and
(ii) our total aggregate liability is otherwise limited to an amount not exceeding $100.00.
19.2 In relation to Non-excludable conditions (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which Homely's liability is not so limited under this Agreement), Homely's liability to you for a failure to comply with any Non excludable Obligation is limited to:
(a) in the case of services, supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of goods, replacing the goods, supplying equivalent goods or repairing the goods, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
You agree to indemnify and hold Homely, its subsidiaries and affiliates (and the officers, agents, partners and employees of each of the forgoing) harmless against any and all loss, liability, claim or demand (including reasonable attorneys’ fees) arising out of, or in connection with:
(a) the Listing Content or Agent Profiles;
(b) the acts or omissions of you or any Associated Entity in connection with the Website or the subject matter of this Agreement; or
(c) any claim brought by an Associated Entity relating to the Website or the subject matter of this Agreement.
21.1 Either party may terminate this Agreement on written notice to the other party.
21.2 On termination of this Agreement you must cease, and must procure that each Associated Entity ceases, providing Listing Content to Homely.
21.3 Homely will not refund any amounts prepaid under this Agreement.
21.4 Termination of this Agreement does not affect any accrued rights or remedies of either party, or any obligation on you to pay any amounts payable under this Agreement to Homely.
This Agreement does not create a relationship of employment, trust, agency or partnership between us.
23. Governing law and jurisdiction
This Agreement is governed by the law of the State of Victoria, Australia and you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
You may not assign any of your rights under this Agreement without the prior written consent of Homely. Homely may assign its rights under this Agreement in its sole discretion without your prior consent.
25. Entire agreement
(a) constitutes the entire agreement between the parties as to its subject matter; and
(b) supersedes all prior representations and agreements in connection with that subject matter.
A term or part of a term in this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement continue in force.
Homely does not waive a right, power or remedy under this Agreement if it fails to exercise or delays in exercising a right, power or remedy. A single or partial exercise of a right, power or remedy by Homely does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy by Homely must be in writing and signed on behalf of Homely.
Any indemnity or any obligation of confidence under this Agreement is independent of, and survives termination or expiry of, this Agreement. Any other term by its nature intended to survive termination or expiry of this Agreement survives termination of this Agreement.