General Terms and Conditions
THESE TERMS AND CONDITIONS APPLY TO ALL CUSTOMERS USING OUR PRODUCTS EXCEPT WHERE SPECIFIED BELOW. BY ACCESSING AND USING OUR PRODUCTS YOU AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATIONS
1.1 In this agreement unless the context otherwise requires, the following words will have the meaning set out hereunder:
"Company" means RP Data Pty Ltd trading as CoreLogic (ABN 67 087 759 171).
"Confidential Information" means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Customer before, on or after the date of this Contract, relating to the valuation Products, Product information services or the business, technology or other affairs of the Company, including any data (including Product Data), valuation and market share analyses, valuation models and tools, indices, programs or algorithms.
"Contract" means this Products Agreement which consists of these General Terms & Conditions, any Product Terms which may apply and the Product Schedule provided to the Customer separately in either hard or soft copy.
"Customer" has the meaning set forth in Product Schedule and includes the agents and employees of the Customer.
"Customer Materials" means any and all data, information, content, photographs, metadata and other materials provided or that may be supplied to the Company by the Customer (or otherwise obtained by the Company from the Customer), directly or indirectly, from time to time, including any content posted or entered into any Product from time to time.
"Direct Marketing" means one to one marketing, normally supported by a database, which uses one or more advertising media to affect a measurable response and / or transaction from a person and includes, but is not limited to, telemarketing, bulk email messaging, postal canvassing and list brokering.
"Dispute" means any dispute between the parties that arises out of or in connection with this agreement, including any question regarding its validity or termination.
"Effective Date" means date and time that the customer clicks "I accept these terms and conditions" when first accessing the Product or the date of execution of a Product Schedule (whichever is earlier).
"Excluded Information" means Confidential Information which:
- is in or becomes part of the public domain other than through breach of this Contract or an obligation of confidence owed to the Company;
- the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by the Company (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
- the Customer acquires from a source other than the Company where such source is entitled to disclose it.
"Government Authority" means any governmental, quasi-governmental, legislative, judicial or other regulatory body, any central, state, provincial, municipal, autonomous region, local or other political subdivision thereof, any political party, department, ministry, agency, commission, entity, court, tribunal or other body exercising administrative, legislative, judicial or other regulatory or public functions, any agency, department or instrumentality thereof and, without limiting the generality of the foregoing, all persons that are directly or indirectly owned or otherwise controlled by any of the foregoing.
"GST" has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).
"Initial Period" has the meaning set forth in clause 2.
"Insolvent" means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves.
"Law" means common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).
"Party" and "Parties" means the Company and the Customer.
"Personal Information" means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
"Privacy Act" means the Privacy Act 1988 (Cth).
"Product Data" means any data or results, including any property information, ownership information, sales information, photographs, valuation or market share analyses, index results or alerts, contained within or provided through the Products.
"Products" means those property information data or services, software and/or valuation products listed as such on a Product Schedule.
"Product Schedule" means the schedule provided to the Customer separately in either hard or soft copy executed by or on behalf of the Customer which contains the Product identity and description, the fees payable and other material terms of the Customer's Contract.
"Product Terms" means the terms and conditions set out below which specifically apply to a particular Product, including Data Terms, Software (Customer Hosted) Terms, Software (Company Hosted) Terms, Education Terms and App Terms.
"Renewal Period" has the meaning set forth in clause 2.
"Territory" means the People's Republic of China (PRC), including for purposes of this agreement, Taiwan and the Special Administrative Regions of Hong Kong and Macau.
1.2 The headings in this Contract are for convenience of reference only and will not affect the interpretation hereof. The words "include" and "including" when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind. A clause or Schedule is a reference to a clause or Schedule to this Contract. Words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders.
2.1 This Contract will commence on the Effective Date and will continue for the Minimum Contract Period set forth on the Product Schedule (the "Initial Period"); thereafter, this Contract will automatically renew for subsequent periods listed on the Product Schedule as renewal periods one (1) year renewal periods (each, a "Renewal Period") unless a Party gives the other Party notice of its intent to not renew at least ninety (90) days prior to the end of the Initial Period. Following the Initial Period, the Customer will have the right to terminate this Contract in accordance with clause 13.
3. LICENSE AND RESTRICTIONS
3.1 Subject to the terms of this Contract and the Customer's performance of its obligations, the Company hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable limited license during the Initial Period and each Renewal Period (if any) to access and use the Products and the Product Data in the Territory, within the Customer's enterprise only and solely for the Customer's internal business purposes in the Territory.
3.2 Notwithstanding anything to the contrary in this Contract, except as and then only to the extent expressly permitted in the Product Schedule, the Customer must only allow or permit its employees from the particular site(s) listed on the Product Schedule to use the Products or the Product Data (or other Confidential Information) and the Customer agrees that it will not permit or allow any person to access or use the Products or the Product Data (or other Confidential Information) unless they are employed by the customer and undertake their work for the customer from the site listed on the Product Schedule without having first obtained express prior written consent of the Company to do so.
3.3 The Customer agrees not to use the Products or the Product Data except as in accordance with the licence granted to the Customer as set out in these General Terms and Conditions and any applicable Product Terms below.
3.4 The Customer acknowledges and agrees to use the Products and the Product Data solely for the purpose for which they are intended, and in accordance with all Laws. Except as expressly permitted under this Contract or to the extent permitted by Law, the Customer and its employees and representatives must not, or encourage any person or entity to:
- decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the Products, including any source code, object code, algorithms, methods or techniques used or embodied therein;
- modify, duplicate or create any derivative works based upon the Products or the Product Data;
- distribute, resell, disclose, market, publish, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer any Product or Product Data in any form to any third party, or use the Products or the Product Data on behalf of or for the benefit of any third party;
- remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Products or the Product Data;
- data mine, scrape, crawl, email harvest or use any process or processes that send automated queries to the Products or the Product Data;
- incorporate any portion of the Products or the Product Data into any other materials, products or services that are not intended for the Customer's internal business use; and
- use, or offer to use, the Products or any Product Data for or in connection with any direct marketing activities (unless expressly provided for by this Contract) or with the intention of encroaching upon the privacy of an individual or otherwise breaching the Privacy Act as more specifically set out in clause 16.
4. PRODUCT ACCESS AND CHANGES
4.1 The Customer will access the Products in the manner set out in the applicable Product Terms set out below. The Customer acknowledges and agrees that, in the event that the Company provides the Customer with any account, identification numbers and/or passwords, it:
- bears sole responsibility for protecting all identification numbers and passwords;
- will not provide such identification numbers and passwords to any third party;
- will remain fully responsible and liable for any authorised or unauthorised use of any identification numbers and passwords;
- will for security purposes change such identification and passwords periodically or as directed by the Company from time to time.
4.2 The Company reserves the right to change or refine the features and functionality of any Product, provided that the Products will at all times retain those basic features described on the Product Schedule or within the Product's Terms and Conditions.
4.3 The Customer acknowledges that the Company will not be obliged to provide access to any Product or Product Data to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.
4.4 The Customer will be fully responsible and liable for any act or omission of any of its employees or agents.
5. CUSTOMER MATERIALS
5.1 The Customer may from time to time provide or otherwise make available to the Company the Customer Materials. The Customer hereby grants the Company and its service providers a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of, and otherwise commercialize and exploit, the Customer Materials.
5.2 The Customer represents and warrants to the Company and its service providers that it has the right to grant the foregoing licenses in and to the Customer Materials; that the Customer Materials do not and shall not infringe upon or misappropriate any rights, including, without limitation, intellectual property rights, of any third parties or the Company and its service providers; and that such Customer Materials are free of worms, viruses, Trojan Horses, and other disabling code.
5.3 The Customer represents and warrants to the Company that it will abide by all applicable laws, rules and regulations for any Customer Material posted to the Company's website, including any Personalised Minisite or entered into the Product itself. The Company does not endorse, support, represent or guarantee the truthfulness, accuracy or reliability of any Customer Materials posted to the Company's website or entered into the Product itself, including any opinions expressed within any Customer Materials. Any reliance upon the content or opinion expressed in the Customer Materials will be at the Customer's own risk.
5.4 To the extent the Customer Materials include or may include and Personal Information of an individual, the Customer warrants that it has obtained all necessary consents and authorities from the relevant individual to use and disclose the Customer Materials as contemplated under these Terms, and use of the Customer Materials in accordance with these Terms will not cause the Company to be in breach of the Privacy Act.
5.5 The Company reserves the rights to remove or refuse to distribute or publish any Customer Materials which violates the terms of this Agreement.
6.1 The Customer will pay the Company the fees set forth in, and in accordance with, the Product Schedule. All such fees, when paid, are non-refundable, even if the Customer stops using the Products or the Product Data for any reason.
6.2 Except as expressly provided for in the Product Schedule, all Products are GST exclusive. If provision of the Products under this Contract is subject to GST, the Customer must pay to the Company an additional amount equal to the relevant fee multiplied by the applicable GST rate. Such additional amount is payable at the same time as the related fee.
6.3 The Company may at its discretion increase the fees for or during any renewal period, by providing the Customer with written notice of its intention to do so at least thirty (30) days prior to the application of the fee increase. Notwithstanding clause 2, upon receiving a notice of a fee increase from the Company, the Customer will have the right to elect to terminate this Contract, by providing the Company with written notice of its intention to do so within thirty (30) days of its receipt of the Company's written notice of fee increase.
6.4 Any amounts not paid to the Company when due will be subject to interest equal to ten per cent (10%) per annum, calculated on a daily basis.
7. LIMITED WARRANTY
7.1 The Company hereby represents and warrants that the Products will have those features described in the Product Schedule or within any applicable Product Terms, and that it will use commercially reasonable efforts to ensure that the Products are accessible in accordance with these General Terms and Conditions and any Product Terms. In the event of any breach of this warranty, the Customer agrees, as the Company's and its service providers' sole and exclusive obligation and the Customer's sole and exclusive remedy, to use commercially reasonable efforts to modify, correct or provide access to the relevant Product. The Company will not be responsible for any interference with or inaccessibility of the Products incurred as a result of any actions from a third party, including any action by a Government Authority.
7.2 The warranty set forth in clause 7.1 is in lieu of any other warranties, and to the fullest extent permitted by Law (subject to clause 7.3), all other warranties are hereby excluded, and the Company and its service providers hereby expressly disclaim all warranties:
- that the Products or the Product Data will meet the Customer's requirements;
- that the Products or the Product Data will be error-free;
- that if the Products and Product Data are accessed via the Company's Web site, that the Company's Web site will function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure;
- if the Products are software installed by the Company, that the software will be secure, timely, uninterrupted or error-free, will operate in combination with any other hardware, software, system or data, or will meet the Customer's requirements or expectations;
- that any data stored by the Company will be accurate, reliable or secure
- errors or defects will be corrected, however the Company will endeavour to correct errors within a reasonable time;
- regarding the use of the Products or the resulting Product Data, in terms of correctness, accuracy, reliability or otherwise;
- the Products will be free of viruses or other harmful components however, the Company will use reasonable endeavours to ensure that the Products will be free of viruses;
- that the statistical methods on which any of the Products are based use appropriate or accurate assumptions, are fit for the Customer's particular purpose or are otherwise suitable for the Customer's use; or
- that the performance of the Products will not be affected by data entry errors, including incorrect entries, double entries or delayed entries, or incorrect or untimely data supplied by the Company's third party suppliers.
7.3 To the extent that the Competition and Consumer Act 2010 (Cth) implies any warranties under this Contract, then the Company's and its service providers' liability in respect of such implied warranty is limited:
- in the case of goods, to any one or more of the following (as the Company and its service providers may in their discretion determine):
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- in the case of services, to any one of the following (as the Company and its service providers may in their discretion determine):
- the supplying of the services again; or
- the payment of the cost of having the services supplied again, except as expressly provided elsewhere in this Contract.
7.4 The Products do not constitute an appraisal of the subject property. They should not be relied upon in lieu of an appraisal or underwriting process. The accuracy of the methodology used to develop the Product Data generated by the Products, the existence of the subject property, and the accuracy of the predicted value and all rule sets provided are estimates based on available data and are not guaranteed or warranted. The condition of the subject property and current market conditions can greatly affect the validity of the Products and the Product Data. Any Product Data generated does not include a physical inspection of the subject property or a visual inspection or analysis of current market conditions by a licensed or certified appraiser, which is typically included in an appraisal.
7.5 The Products and the Product Data, including, without limitation, any information, data, prices, and quotations contained therein, are subject to change without notice, except as otherwise expressly provided herein, the Products and the Product Data are provided to the customer on an "as is, as available" basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for particular purposes, title, non-infringement, security, availability, accuracy, or otherwise.
7.6 The Customer acknowledges that it has read, understands and accepts and agrees to the additional terms, conditions and limitations of the Company's suppliers set forth on the Product Terms and the Product Schedule, if any.
8. LIMITATION OF LIABILITY
8.1 To the maximum extent permitted by Law, in no event will the Company's and its service providers' aggregate liability to the Customer exceed the lesser of ten thousand dollars (A$10,000) and the amount of fees actually paid by the Customer to the Company under this Contract.
8.2 To the maximum extent permitted by Law, in no event will the Company and its service providers be liable for
- any special, consequential, indirect, incidental, punitive or exemplary damages of any kind, or
- damages for any loss of profits or revenue, loss resulting from interruption of business or loss of use or data, arising out of or relating to this Contract or the subject matter hereof, however caused, even if the Company and its service providers have been advised of or should have known of the possibility of such loss. The Customer assumes the risk in using the Products and the Product Data as well as total responsibility for establishing such procedures for data backup and virus checking as the Customer considers necessary.
9. PROPERTY RIGHTS; COMPANY INDEMNIFICATION
9.1 The Customer acknowledges and agrees that, as between the Company and the Customer, the Company or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Products and the Product Data, including any and all creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. The Customer agrees that it acquires no rights in or to the Products or the Product Data provided pursuant to this Contract except for the limited license set forth in clause 3, and that it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Company's and its service providers' ownership of the Products or the Product Data, or the creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. The Customer agrees that it will not make copies (other than for back-up or disaster recovery purposes) or derivative works of the Products and the Product Data. All other uses of the Products and the Product Data not expressly addressed in this Contract are strictly prohibited.
9.2 The Company will defend, or at its option settle, any third party claim or suit brought against the Customer on the basis that the Customer's use of the Products as permitted under this Contract, infringes any of such party's Australian patents or copyrights, and will pay any final judgment entered against the Customer or any settlement of such claim or suit. The Company's foregoing obligations are subject to the following conditions:
- the Customer promptly notifies the Company in writing of any allegation of infringement, and fully cooperates with the Company, at the Company's reasonable cost, in the defence or settlement of such claim or suit;
- the Customer makes no admissions;
- the Customer at the Company's request allows the Company or its assignee to solely conduct and/or settle all negotiations and litigations; and
- any costs incurred and recovered in such negotiations and litigation will be to the account of the Company and/or its assignee.
9.3 The Company's obligations under clause 9.2:
- will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim based upon use of any Products or any Product Data in combination with any equipment, services, data, algorithms, models, indices, tools and/or products not supplied by the Company or its service providers, if the alleged infringement would not have occurred but for such use;
- will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim relating to the Customer Materials, including the Company's and its service providers' use of Customer Materials as permitted under this Contract; and
- are limited as to quantum as set out in clause 8.1.
9.4 If at any time all or any part of the Products or the Product Data is, or in the Company's opinion may become, subject of any claim or suit for any infringement, the Company may at its own expense and option modify or replace the affected Product or Product Data so that it is non-infringing, or obtain for the Customer the right to continue using the affected Product or Product Data. If neither of foregoing options is in the Company's opinion commercially reasonable, the Company will have the right to terminate this Contract with immediate effect after which time the Customer's use of the affected Product or Product Data is at the Customer's sole risk.
10. PROPER RECORDS, RIGHT TO INSPECT AND AUDIT
Without limiting any of the other terms of this Contract:
10.1 The Customer will follow all reasonable instructions the Company gives from time to time with regard to the use of the Products and Product Data.
10.2 The Customer permits the Company at all reasonable times to check that the Products and the Product Data are being used in accordance with the terms of this Contract, and for such purposes the Customer must maintain complete and accurate records of the Customer's use of the Products and the Product Data.
10.3 The Customer expressly acknowledges that the Company has entered into various licensing agreements for ongoing use of data with various data suppliers and as such the Company has undertaken certain contractual obligations. To assist the Company in meeting these obligations the Customer agrees to comply with and/or accept responsibility for all of the Company's obligations expressed or implied in such supplier agreements including:
- granting the Company and its data suppliers the right to inspect and/or audit the Customer’s records and/or system in order to audit the Customer’s use of the Products or Product Data including any records kept at the Customer’s premises; and
- cooperating with any investigation concerning the use by the Customer of the Product or Product Data.
11.1 The Products may incorporate Google Maps software provided by Google Inc. Where Google Maps software is incorporated into the Products the Customer agrees to be bound by:
- the "Google Maps Terms and Conditions" ; and
- the "Google Maps Legal Notices" ,
together the "Google Terms".
11.2 If the Customer breaches the Google Terms, the Customer will indemnify and hold the Company and its service providers harmless from any claim whatsoever by Google Inc. relating to the Customer's breach of the Google Terms.
12.1 No Confidential Information may be disclosed by the Customer to any person or entity except:
- employees of the Customer requiring the information for the purposes of this Contract who
- are aware of the confidentiality obligations imposed in this clause 12 and
- have entered into written confidentiality agreements with the Customer which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 12;
- to the extent the Customer is required to do so by Law; or
- to the extent the Customer is required to do so in connection with legal proceedings relating to this Contract.
12.2 The Customer must not use Confidential Information except for the purpose of exercising its rights or performing its obligations under this Contract.
12.3 Clauses 12.1 and 12.2 and do not apply to Excluded Information.
12.4 Notwithstanding clauses 12.1 and 12.2, the Customer may disclose parts of the Product Data, or conclusions or summaries of information based on the Product Data, provided that the Customer has first obtained the Company's prior written consent for such disclosure and the Customer gives the Company credit as the source for the underlying data in a manner reasonably instructed by the Company.
12.5 The Customer will take any action that is necessary to prevent or remedy any breach of the Customer's confidentiality obligations or other unauthorized disclosure of Confidential Information.
12.6 The Customer acknowledges that due to the unique nature of the Confidential Information, any breach by the Customer of its obligations under this clause 12 would result in irreparable harm to the Company and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Company and its service providers will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Company and its service providers may have at Law
12.7 The Customer will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.
12.8 The Customer may not make press or other announcements or releases relating to this Contract and the transactions that are the subject of this Contract without the Company's prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by Law or by a stock exchange with which the Customer is listed.
12.9 Except as otherwise agreed or duly required by Law or any regulatory authority, no Party will disclose the terms of this Contract to any person or entity other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
13. BREACH AND TERMINATION
13.1 In the event that the Customer (or its agents or employees) breaches any term of this Contract, the Company may, at its election, do one or any of the following:
- suspend or terminate the Customer's access to the Products or Products Data immediately upon written notice to the Customer; and
- commence proceedings against the Customer for any loss or damage the Company suffers as a result of the breach; and
- refer the matter (including the Customer's name and contact details) to any debt collector or other third party to assist the Company in collecting any fee not paid to the Company under the terms of this Contract, including but not limited to conducting any consumer credit searches or listing the Customer with a credit reporting agency.
13.2 The Company and its service providers reserve the right to suspend or terminate the Customer's access to the Products in circumstances where:
- the Company or its service providers reasonably believe that the Customer (which includes its agents or employees) has used or disclosed the Products, Product Data or other Confidential Information in a manner not permitted under this Contract or otherwise has materially breached this Contract, or
- an event of force majeure occurs that affects the Company's ability to provide the Products or Product Data.
13.3 If any use is made of the Products or the Product Data by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to the Company's other rights and remedies the Customer will immediately be liable to pay to the Company an amount equal to the charges which such person or entity would have been obliged to pay had the Company granted a licence to the unauthorised user at the beginning of the period of the authorised use.
13.4 Either Party has the right to terminate this Contract, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:
- the other Party becomes insolvent; or
- the other Party commits a breach of this Contract, and
- the breach is material and not capable of being cured, or
- if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) days of being notified in writing of the breach by the Party giving the notice ("rectification period").
13.5 In the event that the Customer fails to rectify any breach within thirty (30) days of being notified in writing of the breach by the Company in accordance with clause 13.4(b), the Company may, at its election, accept the Customer's failure to rectify as:
- a repudiation of this Contract; and
- ninety (90) days notice of the Customer's intention to terminate this Contract in accordance with this clause 13 commencing from the date the rectification period expired.
13.6 Following the Initial Period, the Customer will have the right to terminate this Contract, with or without cause, upon at least ninety (90) days prior written notice to the Company. If the Customer delivers a written notice to terminate under this clause 13.6, the Customer will deliver together with such written notice payment for the remaining period of the Renewal Period.
13.7 In the event that this Contract is terminated or expires, all of the Customer's rights to use the Products and Product Data will immediately terminate, and the Customer will at its expense promptly return, or at the Company's election destroy, any copies of Products, Product Data and other Confidential Information that are either in the Customer's possession or under the Customer's control.
13.8 Termination of this Contract will not act as a waiver of any breach of this Contract and will not act as a release of either Party from any liability for breach of such Party's obligations under this Contract. Neither Party will be liable to the other for damages arising by reason of termination of this Contract in accordance with its terms. Either Party's termination of this Contract will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.
13.9 The following clauses will survive any termination of this Contract: 1; 4.2; 5; 6; 7; 8; 9; 10.1; 10.3; 11; 12; 13; 14; and 16.
14. CUSTOMER INDEMNITY
14.1 The Customer will defend, or at its option settle, any third party claim or suit brought against the Company and its service providers on the basis of any breach by the Customer of this Contract (or any act which, if true, would be a breach of this Contract) or any use or reliance by the Customer of or on any Product or Product Data or any representations or promises made by or for the Customer to others due to or based on any Product or Product Data, and will pay any final judgment entered against the Company and its service providers or any settlement of such claim or suit and any costs incurred and recovered in such negotiations and litigation will be to the account of the Customer.
15.1 All notices hereunder will be in writing addressed to the Parties at the respective addresses shown on the Product Schedule.
15.2 Notice will be deemed given:
- in the case of hand-delivered mail upon delivery or in the case of mail upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving Party (such receipt not to be unduly delayed or withheld),
- in the case of ordinary mail on the fourth day after the date of posting;
- in the case of email transmission upon the email being sent.
15.3 A Party may change its address for service of notices under this clause by giving written notification of the new address to the other Party.
- comply with the Privacy Act whether or not you are bound by the Privacy Act;
- only use personal information the Company discloses to you for the purposes for which we disclosed that Personal Information;
- take all reasonable steps to ensure that you, or any of your agents, will not act in a way that contravenes the Privacy Act;
- notify the Company immediately (by email to [email protected]) of any privacy complaints or events which may cause the Privacy Act to be breached and to assist us in dealing with any complaints or potential breaches, including proving is access to relevant information; and
- keep us indemnified in respect of any loss, claim, liability or expense and (whether in contract, tort (including negligence), strict liability or otherwise) incurred by us resulting from a breach by you, of the Privacy Act and Spam Act, including a breach by you or any third party of any telephone number disclosed by us to you that appears on the Do Not Call Register.
17.1 No right under this Contract will be deemed to be waived except by notice in writing signed by the Party to be bound.
17.2 This Contract will be governed by and construed in accordance with the Laws in force in the State of Queensland.
17.3 HKIAC Arbitration
- If any party gives the other a written notice that a Dispute has arisen, either party may submit the Dispute to the Hong Kong International Arbitration Center (HKIAC) for arbitration in Hong Kong in accordance with the HKIAC Arbitration Rules in force at the date of the notice of arbitration. The arbitral tribunal will consist of three arbitrators, who must be proficient in English and Chinese, with one appointed by the Company and one appointed by the Customer. The third arbitrator shall be the presiding arbitrator, who shall be appointed by HKIAC and shall not be a citizen of China, Australia or the United States. The language of the arbitration proceedings will be English.
- The arbitral award will be final and binding upon the parties and will be enforceable pursuant to its terms. Both parties agree to waive their right to appeal to any court with jurisdiction in relation to relevant issues. Any arbitration expense (excluding legal fees) will be paid by the losing party or as fixed by the arbitral tribunal.
- The arbitral award may be enforced by filing as judgment in any court having jurisdiction, or application may be made to such court for assistance in enforcing the award, as the case may be.
- During the period when a Dispute is being resolved, the parties will in all respects other than the issue(s) in Dispute continue their performance of this agreement.
- Nothing contained in this clause 17.2 will preclude either party from seeking specific performance, injunctive relief or other equitable remedies in any court with competent jurisdiction.
- The arbitration clause contained in this clause 17.2 shall be regarded as existing independently and separately from other clauses hereof.
17.4 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions on this Contract will be binding unless in writing signed by each Party except as provided by this clause. Where the parties agree to vary the level, type, description or number of subscription packages, users, logins and Products as described in the Product Schedule, such a variation will be binding and effective upon written acceptance of the variation. For the avoidance of doubt, written acceptance includes email and online notification of a Party's acceptance.
17.5 The Customer may not assign this Contract without the Company's written consent. The Company may assign this Contract or any part of this Contract, or any right or obligation under this Contract, without notice to or the consent of the Customer.
17.6 The Customer warrants that it has not relied on any representation made by the Company which has not been expressly stated in this Contract or upon the descriptions or allusions or specifications contained in any document including any catalogue or other material produced or made available by the Company.
17.7 The Company will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of the Company (whether happening in the Commonwealth of Australia or elsewhere, including acts of God, refusal of licence, refusal or revocation of any telecommunications organisation's consent in respect of data communication equipment, act by a Government Authority, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data).
17.8 If the whole or any part of a provision of this Contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Contract has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Contract or is contrary to public policy.
17.9 Nothing contained or implied in this Contract constitutes one Party the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.
17.10 The rights and remedies provided in this Contract are in addition to other rights and remedies given by Law independently of this Contract.
17.11 This Contract constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
17.12 To the extent of any inconsistency between these General Terms and Conditions and any of the Product Terms, the Product Terms will prevail.
THESE TERMS AND CONDITIONS APPLY (IN ADDITION TO THE GENERAL TERMS AND CONDITIONS) TO ALL CUSTOMERS USING OUR DATA PRODUCTS (WHICH INCLDUES THE FOLLOWING DATA PRODUCTS: RP PROFESSIONAL, RP CLASSIC, CITYSCOPE, LEASE EXPIRY DIARY, PROPERTY INFORMATION MONITOR (INCLUDING REALTY AUCTIONEER AND COMMERCIAL REAL ESTATE MONITOR) AND SUBURB SCORECARD.
By accessing and using our Data Products you agree as follows:
18. DEFINITIONS – DATA PRODUCTS
18.1 In these Data Terms unless the context otherwise requires, the following words will have the meaning set out hereunder:
"Code Oversight Committee" means the committee established to administer the QVAS Code of Conduct.
"Consumer" means an individual whose Personal Information appears in any field in the QVAS Database.
"Company's Web Site" means the web site maintained by the Company through which the Customer accesses the Product and Product Data and means:
- For RP Data Professional: www.rpp.rpdata.com
- For RP Data Classic: www.rpp.rpdata.com
- For Cityscope and Lease Expiry Diary: www.cityscopeonline.com.au
- For Suburb Scorecard: www.suburbscorecard.com.au
"Data Products" means the Company's online property data information system known as RP Professional and RP Classic, Cityscope, Lease Expiry Diary, Property Information Monitor (including Realty Auctioneer and Commercial Real Estate Monitor) and Suburb Scorecard and other data Products released by the Company from time to time.
"Direct Marketing" means one to one marketing, normally supported by a database, which uses one or more advertising media to affect a measurable response and / or transaction from a person and includes, but is not limited to, telemarketing, bulk email messaging, postal canvassing and list brokering.
"LPI Personal Information" means information or opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion which the Company sources from the Land and Property Information group of the Department of Lands, State of New South Wales.
"Personalised Minisite" means a website attributed to and established by the Customer hosted by or through the Company's websites which displays the Customer's profile and which the Customer may add new material to or regularly update by publishing content and narrative.
"QVAS Code of Conduct" means code of conduct established by the State of Queensland (Department of Environment and Resource Management) to (amongst other objectives) mandate a high degree of privacy protection for bulk data access to QVAS Identified Information.
"QVAS Database" means the Queensland Valuation and Sales System (QVAS) database administered by the Department of Environment and Resource Management (DERM) or any successor agency that takes responsibility for the management of the QVAS Database.
"QVAS Identified Information" means the details of any identified Consumer in the QVAS Database limited to the name and service address of the vendor and / or purchaser. For the avoidance of doubt QVAS Identified Information does not include the property address and transaction details.
"Register of Excluded Parties" means a register maintained by the Code Oversight Committee of parties (whether organisations or individuals) who are prohibited from receiving access to the QVAS Database from the Company or any other broker supplying QVAS data to customers.
19. USE RESTRICTIONS AND PERMISSIONS – DATA PRODUCTS
19.1 In addition to the prohibitions on use set out in clause 3.4 of the General Terms and Conditions, the Customer and its employees and representatives must not, or encourage any person or entity to:
- use or distribute QVAS Identified Information for Direct Marketing or with the intention of encroaching upon the privacy of a Consumer; or
- use any LPI Personal Information within or comprising the Product or Product Data for any purpose other than appropriate and legal data verification purposes.
19.2 Notwithstanding clause 3.4(g) of the General Terms and Conditions, the Customer may use the Product Data within the tab titled "Direct Marketing" in its RP Professional Product for Direct Marketing purposes, provided that:
- it does not use any other feature or aspect of the RP Professional Product (or any other Product) for Direct Marketing purposes;
- the customer prominently displays a notice as a part of each communication that a recipient may elect to no longer receive further communications from the customer and display with the notice an address, number or other contact detail at which a recipient can easily contact the customer, whether physically or electronically, in order for a recipient to communicate their election; and
- customers notify the company of any and all ‘opt-out' requests or complaints they receive following use of the Direct Marketing tab by email to [email protected]; and
- any direct marketing is in good taste and accord with generally recognised standards of high integrity and relates to the products or services which are within a customer's core business; and
- customer must not disclose the product data or any part thereof (such as property attribute data, automated valuation data, etc.) to any third party including the recipients of any marketing communications; and
- the customer ensures that it will comply (and warrants to the company that it bears the sole responsibility for its compliance) with clause 16.1 above and all other statutory requirements around the use of marketing information including (but not limited to) the Do Not Call Register Act 2006 (Cth) and the Spam Act 2003 (Cth).
19.3 The Customer must take all reasonable steps to:
- inform all of its employees or agents using the Product or Product Data within the Customer's organisation of the permitted and prohibited uses of the Product and Product Data as outlined in clause 3 of the General Terms and Conditions and clauses 21.1 and 24.2 in these Data Terms; and
- ensure that its employees and agents comply with the General Terms and Conditions and these Data Terms.
20 ACCESS TO DATA PRODUCTS AND PRODUCT DATA
20.1 Unless otherwise agreed in the Product Schedule, the Customer will access the Products via the Company's Web Site or in the case of:
- Property Information Monitor ("PIM") through the software ("PIM Software") provided by the Company and installed locally on the Customer's network;
- Realty Auctioneer either through the PIM Software or in hard copy format provided by the Company (at the Company's discretion);
- Commercial Real Estate Monitor, in hard copy format provided by the Company.
20.2 The Customer will be responsible for obtaining access to the Products, and for any and all costs and expenses in connection with accessing and using the Products, including Internet service provider fees, telecommunications fees, and the cost of any and all equipment (including hardware and software) used by the Customer in connection with its access and use of the Products as permitted hereunder.
20.3 The Customer acknowledges that the Company will have no obligation to assist the Customer in using or accessing the Products except as expressly provided in this Contract. For clarity, the Company will not be liable for any delay, defect, deficiency and/or loss of service in connection with the Products or any loss caused by or on account of any of the following:
- equipment, data or services supplied by the customer or any third party; or
- any telecommunications organisation equipment or services (including any speeds or capabilities of such equipment or services) or any requirements of the telecommunications authority.
20.4 Except in the case of the PIM Software, the Company will not provide the Customer with any software, and all access to the Products will be via the Company's Web site as provided in clause 4 above, except to the extent expressly provided in the Product Schedule.
20.5 Subject to clause 7 of the General Terms and Conditions, the Company will maintain the Company's Web site through which the Products are accessed, and perform network, hardware or service maintenance services or upgrades, which may require the Products to be non-accessible for a period of time. The Company will endeavour to perform such services or upgrades during typically low usage periods.
20.6 The Customer acknowledges and agrees that the Company's ability to provide the Products and the Product Data is subject to its agreements with third party suppliers,
- which agreements may expire or terminate or
- which suppliers may not provide the services, products or data as provided under such agreements, and that in such circumstances the Company may not be able to, and will have no obligation to, provide some or all of the Products or the Product Data, either on a timely basis or otherwise. The Company does not verify the accuracy or completeness of any data supplied by any third party.
21. CUSTOMER MATERIALS – PERSONALISED MINISITES
In addition to clause 5 of the General Terms and Conditions, the following clauses apply to content uploaded in any Personalised Minisite:
21.1 The Customer represents and warrants to the Company that it will abide by all applicable laws, rules and regulations for any Customer Material posted to the Company's website, including any Personalised Minisite
21.2 The Company does not monitor the content of the Customer Materials posted upon any Personalised Minisite and takes no responsibility for such content.
21.3 The Company reserves the right but will have no obligation to investigate the Customer's use of any Personalised Minisite or any Customer Materials posted to the Company's website in order to:
- determine whether a breach of this Agreement has occurred; and/or
- comply with any applicable law, regulation, legal process or governmental request.
22. USAGE/AUDIT ON USE – DATA PRODUCTS
22.1 The Customer agrees to assist the Company and the QVAS Code Oversight Committee with any investigation into to a suspected breach of clause 3 of the General Terms and Conditions and/or clause 19.1 of the Data Terms. The Customer acknowledges that any refusal to cooperate in any such investigation may result in the Customer being added to the Register of Excluded Parties.
22.2 Where the Company or the QVAS Code Oversight Committee reasonably believe that the Customer has used or disclosed the Products or Product Data in a manner prohibited by clause 3 of the General Terms and Conditions and/or clause 19.1 of the Data Terms, the Company may (of its own volition or at the direction of the QVAS Code Oversight Committee):
- suspend or terminate the Customer's access to the Products;
- require the Customer to remove QVAS Identified Information from its data or any database;
- require the Customer to apologise to any party affected by the breach;
- require the Customer to undertake privacy training and /or Code of Conduct training; and
- require the Customer undertake remedial action including, but not limited to, changes to documentation, changes to business processes and / or corrective advertising.