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Terms and Conditions
Taikun Property Group Pty Ltd (ABN 19 629 143 451) of P.O. Box 7162, Bondi Beach, 2026, NSW (TUDITM) and The Subscriber.
Background
- TUDI has developed and is the owner of an on-line, property analysis and information platform, which comprises valuable, proprietary technology including software and data.
- Subscriber wishes to use the said platform and TUDI has agreed to license such use to the Subscriber on the terms and conditions set out in this Agreement.
This Agreement is a legally binding document that governs Subscriber’s rights and obligations as a subscriber to and user of the Website and the Platform. Subscriber’s strict compliance with the terms of this Agreement is a fundamental condition of its use and access to the Website and the Platform. TUDI encourages Subscriber to print out or save a copy of this Agreement for its future reference.
By clicking the "I ACCEPT" button at the end of this Agreement, Subscriber irrevocably and unconditionally accepts the terms of this Agreement and agrees that this Agreement constitutes a document or writing signed by Subscriber under applicable laws and regulations. If Subscriber does not agree to be bound by the terms of this Agreement, Subscriber must cease immediately all further use of the Website and the Platform.
In consideration of the promises and obligations given and assumed herein, and intending to be legally bound, this Agreement provides as follows.
1. Definitions and Interpretation
- In this Agreement, the words and phrases listed in Part A of the Schedule have the meanings defined therein.
- Unless the context indicates a contrary intention, this Agreement shall be interpreted in accordance with the principles specified in Part B of the Schedule.
This Agreement remains in force until terminated by either party in accordance with clause 9.
3. Subscriber’s Rights and ObligationsThis Agreement remains in force until terminated by either party in accordance with clause 9.
3.1 PlatformTUDI hereby authorises Subscriber, during the Term and in accordance with the terms of this Agreement, to access and use the Website and the Platform.
3.2 Restrictions on SubscriberSubscriber has no right to either:
- reproduce, publish, distribute, sub-license or resell either the Website, the Platform or the Proprietary Data; or
- use either the Website, the Platform or the Proprietary Data to supply any service to any person; or
- modify, adapt, disassemble, decompile and/or reverse engineer either the Website, the Platform or the Proprietary Data.
Subscriber has no right to either:
- Subscriber is and shall be wholly and exclusively responsible for the establishment of the communication line between the Website and Subscriber’s network, including all telecommunications lines, modems, communication controllers, multiplexers and terminals or other equipment used for the purposes of accessing the Website and/or the Platform. Subscriber shall pay and bear all costs of third party suppliers in relation to such equipment.
- Subscriber is and shall be wholly and exclusively responsible for the use that it makes of the Platform, including any article, material, literary or artistic work, design or other matter that it authors, invents, creates, develops or produces using the Platform.
- Subscriber shall not (i) interfere with the Website and/or the Platform by using viruses or any other programs or technology designed to disrupt or damage any software or hardware, (ii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website or the Platform, (iii) collect electronic mail addresses or other information from third parties by using the Website or the Platform, (iv) engage in any activity that interferes with any person’s ability to use or enjoy the Website and/or the Platform, or (v) assist any third party in engaging in any activity prohibited by this Agreement.
- Subscriber is and shall be wholly and exclusively responsible for ensuring that all media it uses in connection or in conjunction with the Platform is in compliance with the terms and conditions of this Agreement and all applicable laws, regulations and rules.
- Subscriber is expressly prohibited from framing or linking or otherwise using or displaying the Website in such a manner so that it appears to be part of its own or someone else's website. Subscriber shall not deep link to any image on the Website.
- Subscriber may not: (i) use any device, software or routine to interfere with or disrupt, or in any way attempt to interfere with or disrupt, the Website and/or the Platform; or (ii) take any action that imposes any unreasonable or disproportionately large load on the Website or the Platform. TUDI reserves the right in its sole and unfettered discretion to actively pursue any Subscriber that TUDI believes to be engaging in such activities and terminate this Agreement forthwith.
- Subscriber shall comply, at its own expense, with any recommendations and guidelines issued by TUDI with respect to the Website and/or the Platform, including any adjustments or replacements required in respect of collateral or ancillary equipment or software.
Subject to Subscriber complying with and discharging each of its obligations under this Agreement, TUDI shall allow Subscriber to access and use the Website and the Platform during the Term.
4.2 TrainingSubscriber acknowledges that TUDI has no obligation to Subscriber to provide any training or other support in relation to the use or operation of the Platform.
5. Intellectual Property Rights 5.1 Reservation of titleSubscriber acknowledges that this Agreement does not convey and that it derives no right, title or interest in or to the Intellectual Property Rights and/or the Proprietary Data other than pursuant to the express authorisation set out in Clause 3.1.
5.2 Proprietary DataSubscriber further acknowledges that the Platform and each item of Proprietary Data is secret and confidential. Subscriber shall not grant access to or disclose, directly or indirectly, the Platform or Proprietary Data to any other person without the prior written approval of TUDI.
6. Subscription Fee
- To activate its account and gain access to the restricted areas of the Website, Subscriber shall provide an active email address capable of receiving emails from TUDI and evidence that it is able to receive emails sent to it, either by clicking the link provided in the welcome email sent to its email address upon account creation, by entering the account activation code also sent in this email in the appropriate form on the Website. Subscriber has no right to access the Website until it has provided evidence in the above form that the email address is capable of receiving emails. No refund can be given for any period of account inactivity due to the failure to provide adequate evidence, or failure to make clear in any communications sent the purpose of those communications (for instance, blank emails sent as proof of email validity).
- In consideration of the grant of the licence in respect of the Platform to Subscriber by TUDI, Subscriber shall pay TUDI the Subscription Fees.
- TUDI may amend the Subscription Fees on giving Subscriber no less than three (3) month’s prior notice in writing.
- The Subscription Fees are exclusive of any and all taxes, duties and other fiscal, governmental or regulatory charges. Subscriber shall pay to TUDI, at the same time as any payment is made to TUDI, a sum equal to any such taxes, duties or charges applicable to or withheld from each payment.
TUDI represents that it has the right to license the use of the Website and the Platform to Subscriber in accordance with the terms of this Agreement.
7.2 Caveats
- Nothing in this Agreement shall or may be construed as a representation or warranty that the functionality or operation of the Website and/or Platform will be uninterrupted or error free. Subscriber acknowledges and agrees that the Website and the Platform (as with information technology products generally), may have errors (or “bugs”) and may encounter unexpected problems. Accordingly, Subscriber may experience downtime and errors in the use of the Website and/or Platform from time-to-time. Subscriber shall put in place reasonable internal procedures and processes to enable it to minimise any inconvenience and any adverse impact of any such downtime or error.
- TUDI does not and cannot control the flow of data and information across the internet, and such flow depends on the performance of third parties whose actions or inactions may produce situations in which connections to the internet (or portions thereof) are impaired or disrupted and for which TUDI is not liable;
- TUDI does not provide any warranty with respect to the media available on the Website; and
- TUDI does not warrant that the information provided via the Website, whether concerning the goods or services or any other subject, is complete or accurate.
Subject only to Clause 8.1, all conditions, warranties, representations, indemnities and guarantees with respect to the Platform (or any other goods or services that may be provided by TUDI), that would otherwise be implied or imposed by statute, law, equity, trade custom, prior dealings between the parties or otherwise (including any implied warranty of merchantability, suitability, fitness for purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
7.4 No representation or reliance
- Each party acknowledges that neither the other party nor any person acting on the other party's behalf has made any representation or other inducement to it to enter into this , except for representations or inducements expressly set out in this.
- Each party acknowledges and confirms that it does not enter into this in reliance on any representation or other inducement by or on behalf of any other party, except for representations or inducements expressly set out in this.
Nothing contained in this Agreement excludes, restricts, limits or modifies any:
- implied or imposed guarantee, condition, warranty or other term of this Agreement where pursuant to applicable law to do so is unlawful or void; or
- liability in respect of a breach of this Agreement where pursuant to applicable law to do so is unlawful or void; or
- liability for fraud or deceit; or
- liability for death or personal injury caused by the negligence of either party.
Subject only to Clause 8.1, in no event will TUDI be liable to Subscriber or to any third party under or in connection with this Agreement or in respect of the use of (or failure or performance of) the Platform for:
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malfunctions or failures caused directly or indirectly by:
- any third party;
- actions of Subscriber that were not expressly authorised by TUDI;
- accident, misuse or abuse by anyone other than TUDI;
- alteration or modification of the Platform, or any component or part of the Platform, by anyone other than TUDI;
- products (including any hardware or software) not licensed or supplied by TUDI that are attached to or used with the Platform;
- Subscriber’s failure to provide a proper operating and working environment for the Platform;
- power surge or failure,
- events of Force Majeure or events outside TUDI’s actual control; or
- any other condition not arising under normal operating conditions;
- any loss, damage or expense of any nature arising or caused directly or indirectly by any breach of Subscriber’s obligations or responsibilities set out in this Agreement;
- any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
- Subscriber’s liability to any third party; or
- incidental, indirect, consequential, special, exemplary or punitive damages of any nature,
TUDI may, in its sole and unfettered discretion, and without Subscriber’s consent, place links on the Website to other websites on the internet that are owned or operated by third parties. Subscriber acknowledges and agrees that TUDI is not responsible for the operation of or content located on any such website, and TUDI cannot and does not warrant that the content of such websites is accurate, complete, legal and/or inoffensive. By linking to these third-party websites, you acknowledge and agree that you may not make any claim against Buttonator.com for any damages or losses of any kind arising from the third-party website and/or the link.
8.4 Limitation of liabilitySubject to Clause 8.1, and except to the extent specifically excluded under Clause 8.2, TUDI’s sole liability to Subscriber for any and all breaches of any term or terms of this Agreement, whether express or implied, shall be limited to:
- the substitution of the Platform; or
- the repair of the Platform,
- Subscriber shall indemnify and hereby releases unconditionally TUDI and its Affiliates, without set off or adjustment, against and from any liability, loss, expense or damage, including all legal fees, arising from or relating to or out of: (a) its use of the Website and/or the Platform and/or the Media posted or uploaded by it, including any alleged or actual violation of any Law directly or indirectly arising from such use; (b) any breach or alleged breach by it of the terms of this Agreement; (c) the misuse or misappropriation of the Media; and (d) any infringement or alleged infringement by Subscriber of any person’s intellectual property rights, rights of privacy or publication, or otherwise.
- In particular, and without limiting clause 8.5(b), because TUDI does not and cannot control the actions of its Affiliates, in the event that Subscriber has a dispute with an Affiliate, Subscriber shall indemnify and hereby releases unconditionally TUDI and its Affiliates, without set off or adjustment, against and from any liability, loss, expense or damage, including all legal fees, arising from or relating to or out of, or in any way connected with, such dispute
- At any time and with or without cause, TUDI may immediately terminate either this Agreement or any or all rights and privileges granted to Subscriber hereunder, including suspending Subscriber’s use of and/or access to the Website and/or the Platform. In no event shall any such termination or suspension by TUDI relieve Subscriber of any obligation that has accrued under this Agreement prior to the date of such termination or suspension.
- Subscriber may terminate this Agreement at any time upon written notice to TUDI. In no event shall any such termination by Subscriber relieve Subscriber of any obligation that has accrued under this Agreement prior to the date of such termination.
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On any expiry or termination of this Agreement:
- Subscriber shall immediately deliver up to TUDI all material which Subscriber has received from TUDI; and
- TUDI may delete any websites, web pages, files, graphics or other content or material relating to Subscriber’s use of the Website and/or the Platform and TUDI shall have no liability to Subscriber or any third party for doing so.
- The expiry or termination of this Agreement shall not prejudice or affect any cause of action, right, remedy or defence which shall have accrued or shall thereafter accrue to either party.
If a Clause or any part of any Clause of this Agreement, or a right or remedy of a party under this Agreement, is found to be void, invalid or unenforceable in any jurisdiction then:
- it is read down or severed in that jurisdiction only to the extent that it is void, invalid or unenforceable; and
- it does not effect the validity or enforceability of that term or Clause in another jurisdiction or the remaining terms or clauses in any jurisdiction.
TUDI may amend this Agreement in its sole and unfettered discretion at any time, and Subscriber hereby agrees to abide by and be fully bound by such amended terms. The amended terms shall be effective automatically once they are posted on the Website, and Subscriber’s continued use of the Website on or after such effective time constitutes its unequivocal and unconditional acceptance of the amended terms. This Agreement may not be otherwise amended except in writing signed by both parties. If Subscriber does not agree to the future changes to this Agreement or to any of the current terms in the Agreement, its only right and remedy is to cease use of the Website.
10.3 WaiverA waiver, consent, election or acquiescence given by a party under this is only effective and binding on that party if it is given or confirmed in writing by that party.
10.4 Assignment
- TUDI may at any time transfer, assign, novate or otherwise dispose of any or all of its rights or obligations under this Agreement on giving Subscriber no less than ten (10) days notice in writing.
- Subscriber may not assign, novate, sub-contract, outsource or otherwise transfer or dispose of its rights and obligations under this Agreement without the prior written consent of TUDI.
To the extent permitted by law, in relation to its subject matter, this:
- embodies and constitutes the entire legal and contractual relationship of the parties, including the entire terms agreed by the parties; and
- supersedes, replaces and terminates by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the parties.
- This Agreement will be governed by and construed in accordance with the law for the time being of New South Wales, Australia.
- Each party irrevocably submits to the jurisdiction of the courts of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings that may be brought at any time relating to this.
Intellectual Property Rights or IPRs means all the industrial, commercial and intellectual property rights (including equivalent, neighbouring or proximate rights anywhere in the world that currently exist or are recognised in the future) that relate to or subsist in the TUDI Technology, the Proprietary Data or the TUDI Website.
Platform means the technology, computer programs, algorithms and logic that form part of or are used in conjunction with the TUDI property analysis and information platform that is hosted on the TUDI Website (including such updates, bug fixes, new releases and new versions of the Platform as TUDI shall choose to issue or release during the Term).
Proprietary Data means all information and data that relates to or is embodied in the TUDI Technology and/or the TUDI Website.
Subscription Fee means the fee for the TUDI Platform specified to gain access to the restricted areas of the Website and as amended from time-to-time by TUDI.
Term means the initial Subscription Term specified for each subscription and any and all renewals thereof pursuant to Clause 2.
Website means the website published by TUDI www.tudi.com.au or such other websites or landing pages nominated by TUDI from time-to-time.
Part A – DefinitionsIn this Agreement unless the context indicates a contrary intention:
- a person means any form of legal entity as well as any quasi-legal entity;
- a reference to any document, material, information or data includes that document, material, information and data howsoever stored, recorded or embodied, including in any electronic or digital media or otherwise;
- a reference to this Agreement includes this Schedule and the Web-Site;
- the word includes in any form is not a word of limitation;
- a reference to $ or dollar is to the Australian currency; and
- all dates are references to dates of the Gregorian calendar.
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