1. DEFINITIONS AND INTERPRETATION
Unless specified otherwise, words and phrases beginning with a capital letter in this Agreement have the following meaning:
Advertiser means the individual or entity which has purchased the Product on the terms and conditions contained in this Agreement.
Advertising Fee means the fee paid by the Advertiser to utilise the Product, which are to be paid on an on-going, monthly basis at the rates set by HowtoProperty from time to time.
Agreement means this agreement comprising of the terms and conditions.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Claim means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Commencement Date means the date in which the Advertiser purchases the Product.
Copyright Act means the Copyright Act 1968 (Cth).
Default Event means any:
(a) failure to pay the HowtoProperty the Advertising Fee by the due date;
(b) a breach of clause 6,7, 8 or 11 of this Agreement; or
(c) breach of any warranty as described in clause 9 of this Agreement.
Expiry Date means twelve (12) months from the date is which the Advertiser purchases the Product.
HowtoProperty means HowtoProperty.com Pty Ltd (ACN 612 922 086).
Intellectual Property means all Website Material and literary, artistic works and other copyright works, processes, designs, user content, whether or not registrable in the Commonwealth of Australia or throughout the world which the Advertiser is granted access to whilst utilising the Product.
Intellectual Property Rights includes all present and future copyright and neighbouring rights, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, confidential information (including trade secrets and know how), registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Order Form means the order form contained on the Website or supplied by HowtoProperty which the Advertiser must complete prior to making payment of the Advertising Fee.
Pre-Existing Intellectual Property means any and all Intellectual Property Rights in any works, items or systems which are the property of either party and which existed in substantially the same form and with substantially the same contents prior to the commencement of the Agreement.
Product means the non-exclusive license granted to the HowtoProperty to utilise the Website and post content on the Website to Users which relates to the Services.
Published Intellectual Property means any and all Intellectual Property Rights incorporated or comprised in any materials created by or on behalf of the Advertiser in the course of utilising the Product.
Services means the professional services and advice provided by the Advertiser to Users, including but not limited to posting blogs, providing advice or otherwise contributing to the Website Material.
System Downtime means any scheduled maintenance, service requirements or system error which results in the Website, Product or Website Material being unavailable for use by the Advertiser, whether or not such downtime is in the control of the HowtoProperty.
Users means the individuals or entities who access the Website.
Website means http://www.howtopropety.com.au.
Website Material means all content and data which make up the Website.
1.2. Compliance with Law
(a) This Agreement is to be interpreted so that it complies with all applicable State laws and if any provisions does not comply then it must be read down so as to give it as much effect as possible.
(b) If it is not possible to give that provision any effect at all, however, then it is to be severed from this Agreement in which case the remainder of this Agreement will continue to have full force and effect.
1.3. Index and Headings
The index and any headings are for ease of reference only and do not affect the interpretation of this Agreement.
2.1. Upon completing the Order Form and paying the initial Advertising Fee, the parties acknowledge that this Agreement is binding.
2.2. The Product supplied by the HowtoProperty is on the conditions contained herein to the exclusion of anything to the contrary.
2.3. The Advertiser’s failure to object to any of the conditions stated by the HowtoProperty herein does not alter the Agreement.
2.4. The HowtoProperty retains the right to amend, vary or alter this Agreement from time to time and in such event, will provide to the Advertiser the Agreement by email.
2.5. Previous dealings, understandings, agreements or representations between the HowtoProperty and the Advertiser shall not have any effect on this Agreement.
3. ADVERTISING PERIOD
3.1. The Advertiser agrees and acknowledges that use of the Product will be on an ongoing basis, subject to the Advertiser making payment of the Advertising Fee.
4. PAYMENT OF ADVERTISING FEE
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4.1. The parties agree and acknowledge that the Advertiser’s ability to utilise the Product will be subject to the Advertiser paying the Advertising Fee in advance.
5.1. Unless otherwise stated, the parties agree and acknowledge that the Advertising Fee is exclusive of GST. Where the service provided is subject to GST, it will be added and charged to the Advertiser and will make up the Advertising Fee.
6.1 The Advertiser agrees and acknowledges that all information, Website Material and data which the Advertiser accesses is considered confidential information (Confidential Information).
6.2 In the event that the Advertiser copies, reproduces, republishes, broadcasts or transmits any Confidential Information to any third party, the Advertiser agrees to indemnify the HowtoProperty for any loss or damage resulting from such disclosure.
6.3 The parties agree that this clause 6 shall survive the termination of this Agreement.
7.1. While utilising the Product, the Advertiser must effect and maintain the policies of insurance with a reputable insurer, covering the following insurances:
(a) public and products liability insurance in the sum of $10,000,000 for any one occurrence; and
(b) professional indemnity insurance in the sum of $2,000,000 for any single claim.
7.2. The Advertiser must, on request from the HowtoProperty at any time whilst utilising the Product, promptly produce a certificate of currency on all the policies required by this clause 7.
7.3. The provisions of this clause 7.3 will survive the expiration or earlier termination of this Agreement.
8. USE OF WEBSITE
8.1. The Advertiser agrees and acknowledges that by paying the Advertising Fee:
(a) the Advertiser is granted a non-exclusive licence to access and use the Product;
(b) the Advertiser will only use the Product for the Product’s intended purpose; and
(c) the Advertiser’s use and entitlement to access and use the Product will expire at the Expiry Date.
8.2. The Advertiser agrees and acknowledges that the Advertiser’s Account is non-transferrable.
8.3. The Advertiser agrees to make all reasonable efforts to keep confidential all Advertiser’s Account information and in the event that such information is lost or disclosed to a third party, the Advertiser agrees to immediately notify the HowtoProperty.
8.4. The HowtoProperty makes no guarantees or gives no warranty that the Website or the Product will be available at all times or for the purpose the Advertiser may intend.
8.5. The HowtoProperty will use its best endeavours to notify the Advertiser of any planned or foreshadowed System Downtime.
8.6. In the event of System Downtime, the Advertiser holds harmless and releases the HowtoProperty from any Claim.
8.7. The Advertiser holds harmless and releases the HowtoProperty from any liability for loss of data, whether caused as a result of System Downtime or otherwise.
9.1. The Advertiser warrants that the Advertiser:
(a) will carry out all Services according to proper professional and industry standards;
(b) will only publish and contribute content to the Website itself or via an authorised third party who has agreed to this Agreement;
(c) will pay the cost of all telecommunication and internet access charges incurred when using the Website, whether or not such access has been arranged by the HowtoProperty;
(d) will comply with all reasonable directions of the HowtoProperty;
(e) will ensure that all Services are not unlawful or uploaded for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose the HowtoProperty to legal liability;
(f) will maintain a professional indemnity insurance policy required by clause 7.1(b) for a minimum of seven (7) years (either by maintaining an active policy with the insurer or arranging for the policy to be placed into run off cover) following the completion or early termination of this Agreement;
(g) will comply with its insurance requirements described in clause 7 of this Agreement; and
(h) has and will retain the accreditation, required industry licenses (for example, an Australia Financial Services licence) or membership of professional or other bodies in relation to the provision of the Services and that it will use its best endeavours to maintain such accreditation or membership.
9.2. Both parties warrant that:-
(a) they have the right, power and authority to enter into and perform their respective obligations under the Agreement;
(b) at the time of entering into this Agreement, they are not the subject of an insolvency event;
(c) except as required by law, they will treat as Confidential Information all information provided by the other party;
(d) all corporate and other necessary action has been taken by each of them to authorise the signing and performance of the Agreement;
(e) all information supplied is true and correct and does not contain any misleading or material errors; and
(f) this Agreement is valid and legally binding on them in accordance with the terms and conditions of this Agreement.
10.1. While the Advertiser may suspend, cancel or terminate the Advertiser’s Account, the Advertiser agrees and acknowledges that the Advertising Fee is non-refundable and use of the Product is limited to the Advertiser.
10.2. Any cancellation, suspension or termination of the Advertiser’s Account shall not affect any accrued rights of the HowtoProperty, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such cancellation, suspension or termination.
10.3. The HowtoProperty may suspend, cancel or terminate the Advertiser’s Account:
(a) if a Default Event occurs; or
(b) by providing seven (7) days’ written notice.
10.4. In the event that the HowtoProperty enforces the HowtoProperty’s right under clause 10.3(a), the HowtoProperty reserves the right to retain the Advertising Fee.
10.5. In the event that the HowtoProperty issues a termination notice in accordance with clause 10.3(b), the Advertiser shall be entitled to a pro-rata refund for the remaining balance of the Advertising Fee paid.
10.6. Any cancellation, suspension or termination of the Advertiser’s Account shall not affect any accrued rights of the HowtoProperty, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such cancellation, suspension or termination.
11. INTELLECTUAL PROPERTY
11.1. The ownership of any Published Intellectual Property shall vest in the Advertiser upon the time of its creation. The Advertiser hereby irrevocably and unconditionally grants to HowtoProperty, free of additional charge, a royalty free, non-exclusive, worldwide, perpetual, transferable licence (including the right to sublicense) to use, reproduce, adapt, modify, publish, distribute and communicate any Published Intellectual Property for any purpose except commercial exploitation.
11.2. All Pre-Existing Intellectual Property used and identified by the parties in connection with the provision of Website or the creation of Published Intellectual Property remains the property of the parties or its licensors. The Advertiser hereby irrevocably and unconditionally grants to the HowtoProperty, free of additional charge, a royalty free, non-exclusive, worldwide licence to use any Pre-Existing Intellectual Property to the extent that it forms part of or is integral to any works or other items created by the Advertiser in connection with the provision of the Website or the creation of Published Intellectual Property.
11.3. The parties agree that all Website Material is protected by the Copyright Act and that all Website Material must not be copied, reproduced, republished, downloaded, posted, broadcasted or transmitted in any way which is outside the scope of this Agreement.
11.4. The Advertiser agrees and acknowledges that the Advertiser shall not use the Website or any related content in a manner which infringes the copyright, moral rights or any other intellectual property of any third party.
11.5. The parties agree that this clause 11 shall survive the expiration of this Agreement.
12.1. The Advertiser releases and indemnifies the HowtoProperty from and against all Claims, costs or expenses which they may incur or sustain and all actions, proceedings, Claims and demands whatsoever which may be brought or made against it or them by any person in respect of or by reason of or arising out of:
(a) the performance by or on behalf of the Advertiser of the Services;
(b) any negligence or other wrongful act or omission of the Advertiser and any other persons for whose acts or omissions the Advertiser is vicariously liable; and
(c) any material breach of this Agreement by the Advertiser.
12.2. The provisions of this clause 12 will survive the expiration or earlier termination of this Agreement.
12.3. The parties agree that the HowtoProperty’s rights under this clause 12 are not waived or in any way diminished by any application of insurance proceeds by the relevant insurer for any insurance policy taken out under this Agreement and pursuant to clause 7.
13.1. In the event that the supply of the Product is deemed to be supply under the Australian Consumer Law, the parties agree that nothing in this Agreement excludes, restricts or modifies the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law.
13.2. To the maximum extent permitted by law, the HowtoProperty expressly and irrevocably disclaims any liability whatsoever for any loss or damage in connection with the use of the Website, including but not limited to any representations made by the HowtoProperty in respect of the Product supplied to the Advertiser by virtue of the Website.
13.3. Subject to the Australian Consumer Law, the entire risk of the Advertiser’s use of the Product is to the maximum extent permitted by law, is limited and the HowtoProperty will have no liability whatsoever for any loss, harm, damage cost or expense or any direct, special, indirect, punitive or consequential loss or damage in respect of the Advertiser’s use of the Product.
13.4. The HowtoProperty makes no representation and gives no warranty or guarantee as to the suitability, accuracy, quality, performance or fitness for purpose of the Product or the Website Material and the parties agree and acknowledge that all such warranties or undertakings are excluded.
14. NO MERGER
14.1. The rights and obligations of the parties in respect of agreements, indemnities, covenants and warranties contained in this Agreement shall remain in full force and effect, be continuing agreements, indemnities, covenants and warranties and not be merged or extinguished by or upon termination of or completion of any obligations under this Agreement.
15.1. The failure, delay, relaxation or indulgence on the part of a party in exercising any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right or remedy, nor shall the exercise or any single or partial exercise of any power, right or remedy preclude any other or further exercise of such power, right or remedy or the exercise of any power, right or remedy under this Agreement.
16.1. The Advertiser shall not, at law or in equity, assign, transfer or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the HowtoProperty, which consent shall not be unreasonably withheld.
16.2. The HowtoProperty may in its absolute discretion, assign, transfer or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the Advertiser.
17. TIME OF THE ESSENCE
17.1. Time is of the essence of this Agreement in all respects.
18. NO PARTNERSHIP
18.1. The parties agree that:
(a) the Advertiser and the HowtoProperty are not partners and are not in an employer/employee relationship and the Advertiser, in rendering the Services and doing other things, is at all times an independent person and not doing so as the servant or agent or otherwise acting on behalf of the HowtoProperty;
(b) in the event that the Advertiser has any employees or engages any other third party in rendering the Services, the Advertiser agrees that it is responsible for all taxes, deductions and payments (if any), superannuation and related expenses;
(c) the Advertiser must not purport to act or hold out that the Advertiser is acting as the servant or agent or otherwise on behalf of the HowtoProperty in respect of any matter, whether in rendering the Services or otherwise; and
(d) the Advertiser must at all times indemnify the HowtoProperty in relation to each and all of the matters in this clause 18.1.
19. GOVERNING LAW
19.1. This Agreement shall be constructed in accordance with the laws of the State of Victoria and the parties hereby submit to the non-exclusive jurisdiction of the courts in Victoria.