Real Estate Agent Terms & Conditions

Terms and Conditions for homesales Products and Services

These are the Terms and Conditions on which homesales, a division of carsales.com Ltd (ABN 91-074-444-018): 

a.  permits you to list on the website located at www.homesales.com.au (Website) properties for sale or lease; and 

b.  will endeavour to deliver you leads in respect of the sale or lease of those properties (together, the Service).

a.    Your access to and use of the Service is governed by an Agreement, which is comprised of: 

•     these Terms and Conditions; 

•    the sign up form;

•    the general Terms and Conditions of Use for the Website;

•    the homesales Privacy Policy and

•    any other document provided to you by homesales expressed to form part of the Agreement between you and homesales.

b.    Your use of the Service signifies your agreement to abide by the terms and conditions set out in each of the above listed documents.

a.    In using the Service, you must:

i.    ensure that all information, illustrations, photographs and other material you upload or submit to the Website in your use of the Service (Submitted Materials) are provided in the form required by homesales from time to time;

ii.    only submit material to homesales by a method pre-approved by homesales (such as via an authorised XML provider);

iii.    observe all relevant laws, and any guidelines or directions issued by your relevant Real Estate Institute; 

iv.    ensure that Submitted Materials are not defamatory, offensive, misleading or capable of causing homesales exposure to any legal liability;

v.    comply with any relevant homesales advertising policy;

vi.   provide homesales with such assistance as is reasonably necessary to provide you with the Service;

vii.  notify homesales in writing if the you change any information required by homesales to provide the Service;

viii. maintain secrecy and  confidentiality of all homesales account information, including but not limited to user ID and password information required by you to access the Service and immediately change any account information if the security of the account has been compromised in any way. You are responsible for all transactions entered under your account, including your user ID or password;

ix.  provide and update from time to time all hardware and software necessary to use the Service;

x.  train your personnel in relation to the use of the Service and your obligations for using the Service;

xi. pay any telecommunication charges incurred by you in the use of the Service;  and

xii. assess the accuracy, reliability and  completeness of any information obtained using the Service.

b. You must not:

i.  use the Service for any purpose other the uses intended by homesales;

ii. do anything which impairs the lawful use of the Service by any person;

iii. provide to any person other than your employees or contractors any homesales account information, including user ID or password necessary to access and use the Service;

iv. distribute, rent, lease, sell, charge, sub-licence, assign, transfer or otherwise deal with the Service;

v.  introduce or use any device, software or routine that interferes or attempts to interfere with the operation of the Service including but not limited to any device intended to copy any information published by homesales including any listing; or

vi. create or otherwise produce either directly or indirectly or wholly or partly any database which is substantially comprised of any information published by homesales.

c.    You warrant to homesales that:

i.     you are licensed by the relevant government or statutory authority (either as an agent or as a registered builder or developer) and (A) you will remain licensed at all times; and (ii) comply with the terms of any license.

ii.    you are authorised by the owner of each property listed by you to list the property for sale or lease on the Website;

iii.    all information provided by you to homesales, whether for the purposes of publication or not, is: accurate and complies with all relevant laws; does not infringe any third parties’ intellectual property rights; is not illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years; is not misleading or deceptive or likely to mislead or deceive; or not comprised of anything which may adversely reflect on any homesales Website or any website on which the information is published; and

iv.   you will comply with all applicable laws in your use of the Service, including all laws in relation to handling and use of personal information.

d.    You acknowledge that it is your sole responsibility to ensure homesales has your correct contact details, including but not limited to street and / or postal address and email address for delivery of notices, notifications and email enquiries from the Website.

  

e.    You must promptly notify homesales if you undergo a change of control (meaning a change of ownership in the controlling interest as defined by the Corporations Act) and provide any further information required by homesales as a result of such a change of control.  If you fail to notify homesales of a change of control, or fail to comply with homesales’ directions in relation to a change of control, you will remain liable for all future charges incurred on your homesales account and homesales reserves the right to terminate all agreements with you and remove all Submitted Materials from the Website.  

a.   In using the Service, you must:

i.    only list properties for sale or lease – the listing of other items (for example, cars or boats) is prohibited

ii.    only list properties which are presently available for sale or lease and which you have been authorised to market for sale or lease;

iii.    not include any promotional web addresses

iv.    ensure that any photographs or illustrations submitted in respect of a property, accurately represent the property in question and are free from borders, watermarks (unless otherwise allowed as an exception by homesales), agent location or contact details;

v.    accurately indicate the location of the property being listed – homesales reserves the right not to publish an advertisement which does not include accurate details of the property location;

vi.    immediately remove any properties which are no longer for sale or lease (for example properties which have been sold, leased or withdrawn from the market); 

vii.    only list each property for sale or lease once on the Service; and

viii.    provide to homesales in respect of each property at least the minimum required fields for publication (as set out in Schedule 1 to these Terms and Conditions). 

ix.  for registered builders, ensure that you have listed on the Website not less than 10 property listings at any time, or such other number of listings determined by homesales in its absolute discretion and notified to you).

b.   homesales may choose not to publish, or may remove once published, any listings which do not comply with the above requirements (or where you have not complied with any of the above requirements) .

c.  homesales may, from time to time, set guidelines for how property listings will be returned in searches on the homesales Websites.  The current guidelines are set out in Schedule 2 to these Terms and Conditions.  homesales reserves the right to amend these guidelines at any time.

a.  You acknowledge and agree that: 

i.  homesales provides no warranties in relation to the number of leads (meaning enquiries for further information submitted by users of the Website) you may receive; and

ii.  while homesales will use its best endeavours to provide accurate leads, it has no control over the identity or bona fides of any enquirer.  

b.  You must:

i.  provide a valid email address in respect of each listing to which leads should be sent by homesales;

ii. ensure that all leads are handled by a suitably trained person in a professional and expeditious manner; and

iii. not sell, assign or otherwise provide whether electronically or otherwise any lead (or information derived from a lead) to any person.

c.  You acknowledge that:

i.   homesales will use its best endeavours to deliver all leads to the nominated email address, or where this is not available, an alternate email address;

ii.  homesales will not be liable for any delay or failure to deliver leads to you which is caused by any technical or technological fault or failure; and 

iii. in order to accurately record the number of leads delivered for each listing, it is necessary for homesales to have absolute control over the contact details published by you, and you will not attempt to include any unauthorized contact details in any listing.  

a.    By uploading or otherwise submitting any materials to the Website or in your use of the Service, you automatically grant (or warrant that the owner of such material expressly grants) to homesales a world-wide, perpetual, royalty-free, irrevocable, transferable and sub-licensable licence to use, reproduce, adapt, modify, communicate, display, perform, store and distribute those Submitted Materials for the purposes of (i) performing its obligations pursuant to this Agreement; (ii) publishing the Submitted Materials and any information included in a listing on the Website (including any websites owned or operated by homesales, or on any website owned or operated by a third party with whom homesales has an agreement to provide, share or distribute listings, information or materials and any related services including search engines, or any other online or print based media; and (iii) creating statistics, databases and  compilations for use by homesales and third parties..  Such license shall apply with respect to any form, media or technology now known or later developed.  

b.    Without limiting the foregoing, you agree that Submitted Materials may be used by homesales for purposes including (without limitation) marketing, research and development of goods and services.

c.    You warrant that:

i.    homesales’ use of any Submitted Material contributed by you will not infringe the intellectual property rights (including the moral rights) of any third party or breach any obligations of confidence or any other law or regulation relating to the Submitted Materials; and

ii.    in relation to moral rights, you have obtained all necessary consents which will allow homesales to perform all or any acts or omissions which, but for the consent, would be considered an infringement of the author’s moral rights under the Copyright Act 1968 (Cth)

d.    homesales reserves the right to amend, edit, block or immediately remove Submitted Material without notice to you that it considers is or may be, in its sole discretion:

i.    abusive, defamatory or obscene;

ii.    fraudulent, deceptive or misleading;

iii.    in violation of copyright, trade mark or other intellectual property rights of another person;

iv.    in violation of any law or regulation;

v.    in breach of these Terms and Conditions or any of the other documents listed in clause 1a of these Terms and Conditions; or

vi.    offensive or otherwise unacceptable to homesales.

e.    Notwithstanding the above, homesales is under no obligation to monitor Submitted Material to ensure it complies with any law, guideline or requirements or for general suitability for publication.  

a.   Whilst homesales uses its best endeavours to provide the Service to you, homesales does not represent or warrant that:

i.  you or users of the Website will have continuous access to the Website;  

ii.  the Service will be complete or free from all viruses, defects or errors and you acknowledge that the existence of any defects or errors does not constitute a breach of any agreement between you and homesales; or

iii.  any information supplied or accessed using the Service is correct and complete or sufficient for your intended use.

b.  homesales will not be liable in the event that the Website is unavailable for any reason, including but not limited to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunication supplies.  

c.   homesales does not guarantee the delivery or security of communications delivered over the Internet (including emails).  

a.   homesales retains sole editorial control (including: placement) in relation to all listings published on the Website.  

b.  homesales will not to the full extent permitted by law, be liable for error, misplacement, amendment, omission or failure to publish any listing.  

c.  homesales reserves the right to change the functionality of the Website at any time without prior written notice.

d.  homesales may from time to time modify, enhance or upgrade any the Service.   For the avoidance of doubt, homesales may cease to provide the Service (or part thereof) on 30 days notice or such shorter period as is reasonably required by homesales.

e.  The Service does not include:  back up services; customisation; training; attendance at your premises; or correction of errors or defects, including those caused by:

i.   faulty equipment or hardware provided by the you; 

ii.  any negligent act or omission by you; or

iii.  any event beyond homesales control.

a.  homesales is not responsible for the Internet or any telecommunication infrastructures required to access and use the Service.

b.  homesales does not and cannot provide any warranty that the Internet, any website or any telecommunications infrastructure (including  but  not limited  to email and SMS) will be continuously accessible.  For the avoidance of doubt, subject to clause 9, homesales will not be liable in the event that:

i.   the Internet, any website or any telecommunications infrastructure (including   email and/or SMS) is unavailable (in whole or part) for any reason whatsoever; or

ii.  any message (including  any email and/or SMS ) or file is transmitted by or to you using the Service and is not received in a timely manner or at all.

a.  Other than as set out in this clause 9, and to the full extent permitted by law, all guarantees and implied and express warranties in respect of any goods or services provided by homesales are HEREBY EXCLUDED,

 

b. To the full extent permitted by law, homesales will only be liable to you:

i.   pursuant to any guarantee, right or contractual term that arises, is created or is implied by operation of law and that cannot be excluded PROVIDED THAT, to the full extent permitted by law, any such liability of homesales is limited, at homesales’ option, to (i) replacing or repairing the relevant goods, (ii) supplying goods equivalent to the relevant goods, (iii) supplying the relevant services again or (iv) paying the cost of such replacement, repairs or supply; or

ii.  Subject always to clause 9(d), if your claim arises from or in connection with any deliberate breach of this Agreement or fraud by homesales.

c.  Subject to clause 9b, and except to the extent that liability cannot be excluded, homesales will not be liable to you for claims arising out of or in connection with this Agreement whether arising in contract, tort (including negligence), indemnity, strict liability, breach of warranty or statute.

d.  To the full extent permitted by law, homesales will not be liable to you for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.

e.  For the purposes of this clause, the term homesales will mean homesales, its officers, employees, contractors and  agents, whether individually or collectively.

f.  This clause will survive the termination of this Agreement.

a.  You release and indemnify homesales, its employees and agents against all actions, claims and demands (including the cost of defending or setting any actions, claims and demands) arising out of:

i.   a breach of this Agreement  by you;  or

ii.  any deliberate, unlawful or negligent act or omission by you.

b. This clause will survive the termination of this Agreement.

homesales may suspend or restrict access to the Service on such terms as homesales determines, without notice if any event listed in clause 12a occurs or during the notice period referred to in 12aii.

a.  homesales may terminate this Agreement by immediate written notice to you if you:

i.    breach any provision of this Agreement that is not capable of remedy;

ii.   breach any provision of this Agreement that is capable of remedy and you fail to remedy such breach with 14 days’ written notice;

iii.  fail to notify homesales that a change of control has occurred or you fail to undertake any actions required by homesales following a change of control;

iv.  assign or purport to assign this Agreement; or

v.   are or become insolvent.

b.  You may terminate this Agreement on 30 days’ written notice to homesales.

c.  homesales may terminate this Agreement in its absolute discretion on 30 days’ written notice to you.

d.  On the termination of this Agreement:

i.  you must return or destroy (at homesales’ option) all homesales intellectual property in your possession or control including but  not limited to any application files; and

ii. both homesales and you will continue to comply with all obligations expressed herein to continue to apply after the expiration or termination of this Agreement.

e.  Termination of this Agreement will not prejudice any accrued rights or liabilities of a party.

a.  All intellectual property rights in the Service and all information generated, compiled, arranged, stored or otherwise developed by homesales, including any listing, are vested in homesales and there is no assignment of homesales’ intellectual property rights to you.

b.  homesales acknowledges that information you provide to homesales, including data, text, graphics, icons, digital images, URL information and other materials, remains your property.   You grant homesales a non-exclusive, royalty-free, worldwide licence to use, copy, adapt, modify, watermark and distribute the Subscriber Information for the purposes of: (i) performing its obligations pursuant to this Agreement or any Product Agreement; (ii) publishing the your information on homesales websites owned or operated by homesales, or any website owned or operated by a third party with whom homesales has an agreement to provide, share or distribute Subscriber Information. or any other website, or any other online or print based media; and (iii) creating statistics, databases and compilations for use by carsales and third parties PROVIDED THAT homesales will not disclose your information in any manner that identifies your information as yours.

c.  While homesales will use its best endeavour to store your information in its data base, it provides no warranty as to such storage and will not, subject to clause 9, be liable in the event that there is a corruption, deletion or failure to store any information which relates to you including any listing or any inability to access such information. Accordingly, homesales strongly recommends that you keep a permanent record of all information which relates to you.

a. homesales may amend these Terms and Conditions at any time upon 30 days notice in writing to you

b. Notice may be delivered by post, email or publication of the amended Terms and Conditions on the Website.  Your continued use of the Service signifies your agreement to be bound by the amended Terms and Conditions.  

There are currently no fees for the basic listing package for your use of the Service.  homesales reserves the rights to introduce fees in the future, at which time you may choose whether to continue your use of the Service.  

a.  Force Majeure: Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to force majeure.  For the purposes of this clause “Force Majeure” means

 an event or circumstance beyond the reasonable control of a party (without fault or negligence of that party) including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and natural disasters; acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; strikes and industrial disputes; Internet outage, power, water, telecommunications or other utility shortage; or valid laws, rules, regulations, orders or decrees of the Federal or State Government or of any local government or of any statutory authority.  If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations affected by the Force Majeure will be suspended.  If the delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the Agreement on providing a notice in writing to the other Party.

b. Further Acts: Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by another party to do so.

c.  Assignment: You must not assign, transfer, subcontract or otherwise dispose of, in whole or in part your rights or obligations under this Agreement, without the prior written consent of homesales. homesales may at any time assign the whole or any part of this Agreement without your consent.

d.  Subcontractors: homesales may subcontract the performance of this Agreement or any part thereof.

e.  Provisions Severable: If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from this Agreement.

f.  Waiver:  Failure by any party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise. A waiver must be in writing signed by the party giving the waiver.

g.  Notice: Where in this Agreement homesales is required to give notice in writing, homesales may give the same by:

(a) posting the notice on the homesales Website; 

(b) emailing the notice to the  email address last provided to homesales by you; or

(c) posting the notice to the postal or street address last provided to homesales by you.  

h.  Governing Law: This Agreement is governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts in that State.

Schedule 1

Required fields for listings appearing on homesales Websites

The following information is the minimum information which you must submit to homesales in respect of each listing for publication on the homesales Websites:

1.    Street address  

2.    Property type (eg house, apartment)

3.    Title

4.    Description

5.    Number of bedrooms (except for vacant land)

6.    Number of bathrooms (except for vacant land)

7.    Number of carspaces (except for vacant land)

8.    Images (minimum of 1)

9.    Display price (may be numeric value or text, eg POA)

10.    Status (eg current, sold, leased, withdrawn) 

Where you do not provide or authorise homesales to publish all of the above information in a listing, homesales may not publish the listing on the homesales Websites.

Guidelines for search results on homesales Websites

1.    Where a listing for a property does not include a numeric value in the price search field, the property will not be returned in searches conducted on the basis of price.

2.    Where values are provided for a price search range for a property and the range varies more that 10% from the value provided for the display price of the property, the property will not be returned in searches conducted on the basis of price.

February 2013