Website Business Terms
These Business Terms set out the agreement (Agreement) under the terms of which The Trustee for The Agent Choice Unit Trust ABN 68 271 308 458 (Agent Choice) provides Services (defined in clause 2 ) through their website to you or the company which you represent (the Client).
1. THIS AGREEMENT
(a) These Business Terms will apply to all the Client’s dealings with Agent Choice, including being incorporated in all agreements, quotations or orders under which Agent Choice is to provide services to the Client.
(b) The Client will be taken to have accepted this Agreement if the Client uses any of the services provided by Agent Choice after receiving or becoming aware of this Agreement.
(c) Agent Choice may update any part of the Business Terms at any time without notice to the Client. The Client continuing to order, accept or pay for any products and/or services provided by Agent Choice following such an update will represent an agreement by the Client to be bound by the Business Terms as amended. The Client is encouraged to check the date at the top of the Business Terms to see when Agent Choice last updated the Business Terms.
2. SERVICES
Agent Choice will provide the Client with the introductory services set out on the Website (Services).
3.FEES AND CASHBACK INCENTIVE
(a) Clients do not pay Agent Choice any fees for the Services. Instead, Agent Choice may receive a portion of the commission paid to the real estate agents that we refer you to upon a successful referral and sale.
(b) Agent Choice may offer a cashback bonus to the Client upon the successful referral and completion of a sale. The amount and terms of the cashback bonus will be communicated to the Client separately.
4. THIRD PARTY GOODS AND SERVICES
(a) Agent Choice provides introductions to services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) The Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or Agent Choice acquires as part of providing the services and Agent Choice will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
5. CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.
(b) This clause 5 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by Agent Choice to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
6. INTELLECTUAL PROPERTY
6.1 CLIENT CONTENT
(a) The Client grants to Agent Choice (and its subcontractors, employees and agents) a non- exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
(b) The Client:
(i) warrants that Agent Choice’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
(ii) will indemnify Agent Choice from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
6.2 DEVELOPED IP
All Developed IP will be solely and exclusively owned by Agent Choice.
6.3 THE AGENT FINDER IP
(a) The Company grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Agent Choice IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
(b) Unless otherwise agreed in writing by Agent Choice or in this clause 6.3 , the Client will not acquire Intellectual Property Rights in any Agent Choice IP under this Agreement or as part of receiving the Services.
6.4 DEFINITIONS
For the purposes of this clause 6 :
(a) “Client Content” means any Material supplied by the Client to Agent Choice under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
(b) “Developed IP” means any Products and any other Material produced by Agent Choice in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables.
(c) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.
(d) “The Company IP” means all Material owned or licensed by Agent Choice that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(e) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
7. DISCLAIMERS
(a) Agent Choice is an independent entity and is not affiliated with, endorsed by, or in partnership with any real estate agents or agencies listed on its website. The information provided on our website is for general informational purposes only and does not constitute a recommendation or endorsement of any particular agent.
(b) Agent Choice lists only the top three performing agents based on specific criteria. This selection is made independently and without influence from any real estate agents or agencies.
(c) Agent Choice makes no guarantees or representations regarding the likelihood of a sale or the performance outcomes that may result from engaging any of the agents listed.
(d) Agent Choice does not guarantee or warrant the performance, effectiveness, or suitability of any real estate agents or agencies. All decisions made by clients regarding which agent to engage are made at their own discretion and risk.
8. WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
9. LIABILITY
9.1 LIABILITY
(a) To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to $100.
9.2 CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, good will, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Agent Choice, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
10. SUBCONTRACTING
Agent Choice may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
11. TERMINATION
11.1 TERMINATION FOR CONVENIENCE
Agent Choice retains the exclusive right, at its sole discretion, to pursue all legal remedies available, including, but not limited to, the removal of your postings from the Website and the immediate termination of your registration with, or access to, this Website and/or any other services provided to you by Agent Choice. This action may be taken in response to any breach of this Agreement by you or if Agent Choice is unable to verify or authenticate any information you submit to the Website or during Website registration. Agent Choice excludes all liability for actions taken in response to breaches of these Terms.
11.2 SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
12. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 12 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 12 .
13. FORCE MAJEURE
(a) If a party becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), that party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure; and
(ii) so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 13(a) , the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
(c) The affected party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
14. NOTICES
A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (info@agentchoice.com.au). The parties may update their Email Address by notice to the other party.
(c) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii)when replied to by the other party,
whichever is earlier.
15. GENERAL
15.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
15.2 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
15.3 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
15.4 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
15.5 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
15.6 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
15.7 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
15.8 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
15.9 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
15.10 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
15.11 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.
