Real Estate Dynamics Pty Ltd as trustee for The RED Unit Trust ACN 107701637
Table of Contents
These Terms and Conditions apply to all Customers, Application Form, Order Forms, Service Agreements and Licence Agreements.
These Special Terms apply to customers using a Real Estate Dynamics’ Licence.
These Special Terms apply to Customers using Real Estate Dynamics’ Training Services: Diagnostic Service and Training Courses including STANDOUT | BDM Performance Program.
These Special Terms apply to Customers using Real Estate Dynamics’ other Services: Opinion of Market Worth, Marketing Service Agreement and Buyer / Sell Service Agreement.
These Special Terms apply to Customers using Real Estate Dynamics’ other Services: Mystery Shopper, Document Compliance Check and other Services by Service Agreement.
These Special Terms apply to Customers and Users using FOUNDATION | Business Performance Structure.
These Special Terms apply to Customers and Users using Rent Roll Coaching.
These Special Terms apply to Customers and Users using KNOWLEDGE | Performance Support Platform.
PART A – GENERAL TERMS AND CONDITIONS
These Terms and Conditions apply to all Customers, Application Forms, Order Forms, Service Agreements and Licence Agreements.
“Agreement” means any agreement entered into between the Customer and the Supplier;
“Application” means any Application Form, Order Form, Service Agreement or Licence Agreement;
“Authorised Representative” means the person nominated on the Application Form and any other person as nominated by the Customer from time to time;
“Customer/Licensee” means the applicant named on the Quote, Order Form, Service Agreement or Licence Agreement; and the Client;
“Licence Agreement” means the agreement entered into by the Customer for use of the Licencor’s software;
“Licensed Software” means any software including Intellectual Property provided by the Licensor including REDlinx, RED Genius, PM BOSS, AGENCY BOSS, SALES BOSS and any other of the Licensor’s software products;
“Order Form” means any Order Form, Application, Service Agreement or Licence Agreement completed by a Customer in relation to any of the Supplier’s Services, and Products;
“Personal Guarantee Deed” means the personal guarantee deed annexed to the Agreement;
“Purchase Price” means the costs of the Services and Products as at the date of the Agreement;
“Supplier/Licensor/Company” means Real Estate Dynamics Pty Ltd as trustee for The RED Unit Trust ACN 107701637;
“Quote” means the Supplier’s quote provided to the Customer for the Services related to the work noted on the Order Form;
“Services” means any goods or services supplied by the Supplier to the Customer from time to time that relate to any work, service or product;
“Service Agreement” means any Order Form, Application or Service Agreement completed by the Customer in relation to any of the Supplier’s Services;
“Substantial Change” means any variation that may in any way effect the scope of Services to be provided as determined by the Supplier; and
“Tax Invoice” means the tax invoice supplied by the Supplier to the Customer.
A2. Acceptance of Terms and Conditions
2.1 These terms and conditions are deemed to be accepted by the Customer upon either of the following events occurring:
2.1.1 any Application is signed by the Customer or their Authorised Representative; or
2.1.2 the Customer instructs the Supplier to supply the Services.
2.2 Upon acceptance pursuant to this clause the Customer must execute and return the Personal Guarantee Deed prior to the Supplier providing the Services, unless the Supplier agrees otherwise.
3.1 The Customer acknowledges that the Supplier or any representative thereof has not made any representation or agreement whereby the Customer has relied upon.
3.2 If any representation or agreements have been made by the Supplier or any representative thereof, the Customer agrees that they have not relied upon them and this Agreement forms the entire agreement between the parties.
4.1 The price payable for the Services is the Purchase Price.
4.2 Prices are subject to change from time to time by the Supplier with no notice being required to be given to the Customer.
4.3 Prices are current as at the date that the Agreement is signed by the Customer.
4.4 The Purchase Price contained in the Quote remains valid for a period of 30 days from the date that it is provided to the Customer.
A5. Terms of Payment
5.1 All payments to the Supplier:
5.1.1 must be made by either direct deposit into the Supplier’s nominated bank account by direct debit or credit card; and
5.1.2 must be made within the timeframes as stated on the Tax Invoice.
5.2 The Supplier reserves the right at any time to withhold or cancel the supply of Services any time, without notice, if the Customer fails to comply with the terms of this Agreement.
5.3 The Supplier may withhold access to and delivery or performance of any Services until clear payment is received.
5.4 Credit card payments will attract fees as follows:
5.4.1 VISA/Mastercard 1.316% including GST;
5.4.2 American Express 3.12% including GST.
5.5 Direct Debit or Credit Card Debit Terms:
5.5.1 Real Estate Dynamics will send a copy of the Paid Tax Invoice for the first direct debit payment within seven (7) days of the debit;
5.5.2 where the due date falls on a non-business day, Real Estate Dynamics will draw the amount on the next business day;
5.5.3 Real Estate Dynamics will not increase the amount or change the frequency of drawing arrangements without the Customer’s prior written approval;
5.5.4 Real Estate Dynamics reserves the right to cancel the direct debit arrangement if two (2) drawings are returned unpaid the Customer’s nominated Financial Institution and to arrange an alternative payment method;
5.5.5 Real Estate Dynamics will keep all information pertaining to the Customer’s account private and confidential except for the purpose of debt collection;
5.5.6 the Customer may terminate or stop the drawing arrangement at any time by giving Real Estate Dynamics at least fourteen (14) days written notice prior to the due date and making mutually suitable alternative arrangements;
5.5.7 the Customer will advise Real Estate Dynamics in writing of any drawing made by Real Estate Dynamics that is considered incorrect outside of this authority;
5.5.8 it is the Customer’s responsibility to ensure sufficient funds are available in the above nominated account to meet an authorised drawing on its due date and pay any dishonour fees Real Estate Dynamics incurs, in the event that an authorised payment is declined by the Financial Institution;
5.5.9 the Customer is responsible to ensure that the authorisation given to draw on the nominated account, is identical to the account signing instruction held by the Financial Institution where the account is based;
5.5.10 the Customer is responsible to advise Real Estate Dynamics if the account nominated by me/Us is transferred or closed and provide new account details in writing;
5.5.11 if the agreed payments are in arrears, Real Estate Dynamics may debit the Customer’s account to pay the amount due and overdue and any fees incurred by Real Estate Dynamics, as a result of the overdue payment, after giving the Customer fourteen (14) days written notice. A credit card payment fee may apply to the amount of each payment. The fee may change as Financiers specify;
5.5.12 the Customer is responsible for any other fees charged by the Customer’s own Financial Institution in regards to this transaction; and
5.5.13 GST (or it’s future equivalent) is payable at the rate as per Government Legislation.
A6. Delivery of Services and Variation
6.1 The Services that the Supplier is to supply are limited to the Services as noted on the Application, Quote, Service Agreement or Licence Agreement.
6.2 The Supplier may refuse to supply Services to the Customer in the event that monies owed to the Supplier by the Customer are outstanding.
6.3 The Services that the Supplier will provide to the Customer are limited to those Services as contained in the Application, Quote, Service Agreement or Licence Agreement and any additional Services or variations thereof that may be required may incur an additional fee which shall be determined by the Supplier upon assessment.
6.4 The Customer must notify the Supplier of any Substantial Change and acknowledges that any Substantial Change may affect the scope of Services to be provided and may incur an additional fee.
6.5 The Supplier will attempt, in all possible circumstances, to limit the Supplier’s downtime in the performance of Services.
6.6 The Supplier will, on becoming aware of any actual or potential delay in providing any Services, provide the Customer with notice as to the nature and cause of the delay and provide an amended time frame for the Services to be supplied.
6.7 The Supplier is not liable to the Customer for any failure to perform the Services, or delay for performing the Services.
6.8 The Customer further agrees to indemnify the Supplier for any additional cost incurred by the Supplier in the event that the Services to be provided fall outside the scope of work to be performed pursuant to the Quote.
A7. Warranties and Indemnities
7.1 The Customer warrants:
7.1.1 that all information provided to the Supplier is accurate and acknowledges that the Supplier has placed reliance on the information provided and is not required to make any enquires to determine the validity of the information provided;
7.1.2 the Authorised Person has the authority to perform and authorise any action that the Customer may undertake; and
7.1.3 that all times throughout the term of this Agreement the Customer will notify the Supplier if there is a change to the Customers Authorised Person.
7.2 The Customer authorises the Supplier to:
7.2.1 the extent permitted by law, to collect, retain and use any information about the Customer; and
7.2.2 disclose any information obtained by any person for the purposes of delivering the Services.
7.3 The Customer indemnifies the Supplier against:
7.3.1 any penalty or liability incurred by the Supplier for any breach by the Customer of this Agreement; and
7.3.2 all actions, claims, demands, losses, damages, costs and expenses which the Supplier may sustain or incur or for which the Supplier may become liable whether during or after the term of this Agreement, by reason of any act or omission or negligence by the Supplier and its respective employees or any other authorised person.
7.4 The Supplier warrants that the information provided by the Customer for the purposes of delivering the Services will be kept confidential and will only be used for the delivery of Services or as otherwise agreed by the Customer.
7.5 The Supplier is not liable for any defect or damage caused by the Supplier providing the Services.
7.6 The Supplier is not liable to compensate the Customer for any losses incurred for failure or delay if such is due to fire, cyclone, earthquake, flood, tsunami, inclement weather, strike, labour dispute, war, government order, riot, revolution, pandemic, civil commotion or any other cause beyond its reasonable control.
8.1 The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
8.2 The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Services again or payment of the cost of having the Services supplied again.
8.3 The Supplier’s liability for any claim in relation to this Agreement or the supply or performance of the Services (whether under statue, contract, tort, negligence or otherwise) will be limited to the amount of the fee paid by the Customer to the Supplier.
8.4 The Supplier is not liable to the Customer for any claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any direct or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) of any remote abnormal of unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties, as a result of or in connection with the provision of the supply or performance of the Services.
8.5 The Customer agrees that they waive any claim, future or present, that they may have or may arise against the Supplier that is in any way connected directly or indirectly with the supply of the Services.
8.6 Notwithstanding any other provision of this Agreement, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:
8.6.1 any increased costs or expenses;
8.6.2 any loss of profit, revenue, business, contracts or anticipated savings;
8.6.3 any loss or expense resulting from a claim by a third party; or
8.6.4 any special, indirect or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to complete or delay in supply of the Services.
8.7 The Customer further indemnifies the Supplier from any costs or charges that in anyway either directly or indirectly relate to the supply of the Services and further for any services that the Supplier performs.
9.1 If the Customer:
9.1.1 makes default in any payment;
9.1.2 breaches any terms contained herein this Agreement;
9.1.3 commits any act of bankruptcy or goes into bankruptcy;
9.1.4 is insolvent, or is likely to become insolvent, within the meaning of the Corporations Act 2001 (Cth);
9.1.5 has an administrator, liquidator or provisional liquidator, receiver and manager, or controller appointed over the Customer;
9.1.6 is subject to a winding up application under the Corporations Act 2001 (Cth); or
9.1.7 has a judgment awarded against it by any court or tribunal;
then Supplier may terminate this Agreement and all Tax Invoices and other monies owing to the Supplier become immediately due and payable.
9.2 In the event of default under this clause, the Supplier may, at its discretion:
9.2.1 elect to apply an interest charge against the Customer’s account at the rate of 5% of the outstanding monies per month or part thereof;
9.2.2 charge an administration fee each month, or portion thereof, that an amount owing by the Customer is overdue;
9.2.3 commence proceedings against the Customer or enforce any personal guarantee;
9.2.4 call and act upon any security interest that the Supplier is entitled to enforce;
9.2.5 recover against the Customer all moneys that are owed to the Supplier including incidental costs that are incurred in relation to the Customer’s default;
9.2.6 list the default in payment with the appropriate credit reporting agency; and
9.2.7 perform any other action that the Supplier deems appropriate to enforce this Agreement and recovery monies owed.
10.1 If the Customer wishes to cancel the supply of Services then they must give notice in writing to the Supplier notifying them of termination.
10.2 In the event that the Customer wishes to terminate the agreement between the parties the following terms apply:
10.2.1 Service Agreement terminations and training
10.2.1.1 Within 8 – 21 days prior to the provision of Services then the Customer must pay to the Supplier an amount equal to 50% of the monetary obligation owed under the agreement to the Supplier in addition to payment for the Services already performed or part thereof or if payment was made receive a 50% refund.
10.2.1.2 Within 7 days prior to the provision of Services then the Customer must pay to the Supplier the monetary obligation owed under the agreement to the Supplier in addition to payment for the Services already performed or part thereof or if payment was already made the Customer is not entitled to a refund.
10.2.2 Licence Agreement termination
10.2.2.1 Terms for termination of a Licence Agreement are as specified in the Licence Agreement.
10.3 The Supplier may terminate this Agreement at any time if the Customer breaches the terms and conditions contained herein without notice to the Customer.
11.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reference organisation and/or any other individual or organisation which maintains credit references and/or default listings.
11.2 The Customer also authorises the Supplier to make enquiries with respect to the Customer’s credit worthiness; to exchange information with other credit providers in respect to previous defaults of the Customer and to notify other credit providers of a default by the Customer.
12.1 Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
12.1.1 where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of its interest in the said land, realty or any other asset to the Supplier or the Suppliers’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions;
12.1.2 the Customer acknowledges and agrees that the Supplier (or the Suppliers’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met;
12.1.3 should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify the Supplier from and against all of the Suppliers’ costs and disbursements including legal costs on a solicitor and own Customer basis; and
12.1.4 the Customer agrees to irrevocably nominate constitute and appoint the Supplier or the Suppliers’ nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
13.1 All prices contemplated by this Agreement, Quote and any other document provided by the Supplier are inclusive of and subject to GST.
13.2 A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
13.3 The parties acknowledge that GST is imposed on a supply made under or in connection with this Agreement and that the consideration provided for that supply will be increased by the rate at which the GST is imposed and the additional consideration will be payable by the Customer to the Supplier at the same time as the consideration to which the additional consideration relates.
13.4 The Supplier will issue a Tax Invoice to the Customer for the supply of the Services at the time of payment of the GST inclusive consideration or at another time agreed by the parties.
13.5 If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.
13.6 The Customer must pay any taxes in relation to the receipt of the Services.
A14. Intellectual Property
14.1 All intellectual property rights and copyright in:
14.1.1 the Services (including but not limited all calculations and documents associated with the Services);
14.1.2 all designs, drawings, technical information and documents created, owned or held by the Supplier; and
14.1.3 the content of any website owned by the Supplier, remain the property of the Supplier.
14.1.4 You must not link or transmit any documents owned by the Supplier to a third party without the express consent of the Supplier.
15.1 Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricted or modifying any condition, warranty, guarantee, right or remedy implied by the law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
15.2 The parties acknowledge that this Agreement is intended as a contract for the supply of Services and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
15.3 This Agreement is personal to the Customer and must not be assigned without the prior written consent of the Supplier. Such consent must be reasonably given by the Supplier and must not be unreasonable withheld.
15.4 A communication required by this Agreement, by a party to another, must be in writing and may be given to them by being:
15.4.1 delivered personally;
15.4.2 posted to their address specified in this agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting;
15.4.3 faxed to the facsimile number of the party with acknowledgment of receipt received electronically by the sender, when it will be treated as received on the day of sending; or
15.4.4 sent by email to their email address, when it will be treated as received on that day.
15.5 If any provision, or the application of any provision, of this Agreement is prohibited, invalid, void, illegal or unenforceable in any jurisdiction:
15.5.1 this will not affect the validity and enforceability of the provision or part in other jurisdictions;
15.5.2 the provision or part will only be ineffective to the extent of the prohibition, invalidity, voidness or illegality; and
15.5.3 the provision or part will be severed and will not affect the validity or enforceability of the remaining provisions or parts of this Agreement.
15.6 Any waiver of a right under this Agreement must be in writing and signed by the party granting the waiver and will not operate as a waiver in relation to any subsequent matter.
15.7 Any failure, delay, forbearance or indulgence by a party in an exercise, or partial exercise, of a right arising under this Agreement will not result in a waiver of that right or prejudice or restrict the rights of the party.
15.8 Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
15.9 Each party acknowledges that the party has received legal advice or has had the opportunity of obtaining legal advice in relation to this Agreement.
15.10 This Agreement will be governed by the laws of Queensland, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.
15.11 This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.
15.12 These terms and conditions supersede all terms and conditions previously issued by the Supplier.
15.13 The Master Agreement Terms were last updated on 21 September 2017
16.1 This Agreement may not be assigned by the Customer/Licensee or by operation of law to any other person, persons, firms, or corporations without the express written approval of Supplier/Licensor.
16.2 This Agreement may be assigned by the Supplier/Licensor without the express written approval of the Customer/Licensee.
PART B – SPECIAL TERMS FOR LICENCE AGREEMENT
These Special Terms apply to customers using a Real Estate Dynamics Licence.
“Effective Date” – means the date of the Licence Agreement;
“Further Term” – has the meaning given in Clause;
“Guarantor” means the person or entity referred to on Page 1 of the Licence Agreement as the Guarantor;
“Initial Term” – has the meaning given in Clause;
“Licence Agreement” means the agreement between the Licensor and the Licensee. This can include agreements in electronic form;
“Licensee” means the person or entity referred to on Page 1 of the Licence Agreement as the Licensee and includes their successors, executors, administrators and assigns/assignees;
“Licensor” means Real Estate Dynamics Pty Ltd ACN 107 701 637 its administrators and assigns/assignees;
“Purchaser or Transferee” means the entity purchasing a Licensee’s rent roll;
“Subscription Fees” means the fees payable by the Licensee to the Licensor in the amount and manner referred to on the Licence Agreement and Clause B4 of this Agreement;
“Software” means the software products as is specified on the Licence Agreement and
“Term” – means the Initial Term and any Further Term, subject to termination in accordance with Clause B20.
B2. Scope of Licence
2.1 In implementation of this Licence, The Licensor shall furnish the Licensee with a Login and password in accordance with the Terms of the Licence Agreement to enable access to the Licenced Software version on the relevant website. The Licence granted hereunder authorizes the Licensee to use the above mentioned Licensed Software for one or more Members at the Location as defined in the Licence Agreement.
2.2 The Licensor grants the Licensee a limited Licence in relation to the content of the relevant website and Licenced Software. This includes the text, registration facilities, hyperlinks and the underlying HTML or XML.
2.3 The Licensee may view and display the Licenced Software’s information or resources on its computer only, and may view and/or print template letters, forms and checklists only and use for its personal use in accordance with the terms and conditions of use as set out in this document.
2.4 The Licenced Software is intended for use only within the State or Territory for which specified Legislation applies and is not to be used or downloaded for use in any way in any other State or Territory. If the Licensee wishes to access the Licenced Software outside of the State or Territory for which the Licenced Software is applicable, the Licensee does so at the Licensee’s own risk including in relation to compliance with the laws in that jurisdiction.
2.5 The Licenced Software is provided for use as a guide only and is not to be used or downloaded for use in any way without the Licensee first customising it to comply with the Legislation applicable in the State or Territory as relevant to the Licensee. The Licensee uses the Licenced Software at the Licensee’s own risk including in relation to compliance with the laws in that jurisdiction.
B3. Transfer of Licence
3.1 This Licence is transferable to a Purchaser (“Transferee”) of the Licensee’s Real Estate Agency business and/or rent roll subject to the prior approval of the Licensor, which approval shall not unreasonably be withheld if as at the date of transfer and:
3.1.1 the Subscription Fees are paid up to date;
3.1.2 the Transferee has paid a transfer fee of $330.00 GST inclusive to Real Estate Dynamics and enters into a new Agreement;
3.1.3 the Transferee has executed a Licence Agreement identical to this Agreement for the balance of the term hereof including the same number of users;
3.1.4 the Transferee has placed an order via a Service Agreement for the conduct of software training by Real Estate Dynamics at its current hourly rate for such training; and
3.1.5 this Licence Agreement cannot be transferred in the event that the Licensee changes the Licensee’s Company Name and / Trading Name eg due to the Licensee changing to another Franchise Group or changing to an Independent Agency or other similar circumstance other than Clause B3.
3.2 In such an event, the Licensee must first terminate this Agreement as per Clause B20 or alternatively, subject to the Licensor’s prior approval in writing, the Licensee contemporaneously terminates this Agreement in writing and enters a new Licence Agreement under the Terms that are current at the time of the event.
B4. Licence and Monthly Subscription Fees
4.1 The Licensee must pay the Licence Implementation Fee if it is a term of the Licence Agreement as per the Tax Invoice.
4.2 The Licensee must pay Monthly Subscription Fees including Fees for requested User logins as per Tax Invoices issued from time to time.
4.3 After the Initial Term of this Agreement and each Further Term, the Licensor may vary a Monthly Subscription Fee to the Fee that is current at the time of this event, by giving the Licensee at least thirty (30) days written notice if the fee is increased. The Licensee may end this Agreement by giving the Licensor written notice of three (3) months as per Clause B20 in this Agreement within seven (7) days after receiving the notice from the Licensor, if it does not agree to the revised fee.
4.4 All Monthly Subscription Fee payments and Licence Fees shall be made by Direct Debit via credit card, in accordance with the Licensee‘s authority which will be specified on a Payment Agreement Form, completed by the Licensee and supplied to the Licensor with this Agreement.
4.5 If through no fault of Real Estate Dynamics due payment is not received it, on or before the due date, then the Licensee will incur a late payment fee charged at the rate current at the time of the overdue payment. The late payment fee will apply for each month a payment remains unpaid to the Licensor.
4.6 Except in the event of breach on the part of the Licensor, the Licensee agrees to pay to the Licensor all Licence and Subscription Fees payable for the whole of the term of this Agreement or further term whether or not same shall have been terminated for any reason
B5. Responsibility of the Licensee
5.1 The Licensee is exclusively responsible for the supervision, management and control of its use of the Licensed Software, subject to the obligations of the Licensor hereunder. Except as provided otherwise in the Agreement, the Licensee agrees:
5.1.1 to take all reasonable precautions to hold in confidence the design, documentation and secure access/log-in details of the Licensed Software;
5.1.2 not to assign, Licence or otherwise transfer same, by operation of law or otherwise, in whole or in part, directly or indirectly, except in accordance with section 4 hereof;
5.1.3 to advise the Licensor immediately of any loss or change of staff member and/or a third party/contractor performing work for the Licensee, and/or of a breach of transfer of secure access information in which case the Licensor will re-set and re-issue secure access Member Login details; and
5.1.4 to take all appropriate action by instructions, agreement or otherwise with its Employees or other persons permitted access to the Licensed Software to satisfy its obligations under this Agreement with respect to use, protection and security of the Licensed Software. The Licensor is hereby authorized to make reasonable enquiries concerning the Licensee’s compliance herewith and may require the Licensee to take reasonable protective measures.
6.1 The Licensed Software and the original and any copies thereof in whole or in part whether said original and copies are made available to the Licensee or anyone else authorized in this Agreement and remain the property of the Licensor.
B7. Term and Termination Notice
7.1 Subject to any termination of this Agreement in accordance with Clause B20:
7.1.1 this Agreement commences on the Effective Date of this Agreement and continues until the End Date (Initial Term) being the Term specified in the Licence Agreement; and
7.1.2 unless either party has given the other party 3 months (30 days for REDlinx and 30 days for RED Genius) written notice of its intention to terminate this Agreement, this Agreement shall automatically renew for a further term (Further Term) being the same term as the Initial Term, upon expiration of the Initial Term or any Further Term.
B8. Updates to Licence Software
8.1 Enhancements to the Licenced Software will be made from time to time at the Licensor’s discretion. The Licensee will be notified of any updates via email with updates accessed via www.realestatedynamics.com.au using the Member Login and password available to the Licensee. REDlinx and RED Genius Customers will be alerted of significant changes made to resources via the REDlinx Community.
B9. Excused Performance
9.1 The Licensor shall not be liable for any failure to access or delayed access under this Agreement if such access is prevented, hindered or delayed by reason of any cause beyond the reasonable control of the Licensor (“Excusing Event”), including without limitation, any third party, any labour dispute, strike or other industrial disturbance, Act of God, flood, shortage of materials, earthquake, casualty, war, act of the public enemy, terrorism, data corruption, internet interruption, telephony services interruption, riot, insurrection, embargo, law, blockage, action, restriction and regulation or order of any government, government agency or division thereof.
10.1 The Software and the updates provided by the Licensor hereunder shall be received and utilized only at the location specified herein or at such alternate location as may be agreed upon in writing between the Licensor and the Licensee in the event that the Licensee relocates its business premises from the location specified herein to another single location to be specified for this Licence Agreement to be utilised.
NB: Additional Agency locations (other than those specified on the Licence Agreement) are not licensed to use this Licence Agreement or its related Products and Services. Additional Licences are available upon Application.
B11. Copy of Licenced Software
11.1 The Licensee must not copy except for backup and security.
11.2 The Licensee must not make any copy of the Licenced Software (Copy) or give copies to a third party who is not covered by this Agreement, except a single copy of letters, forms and checklists for back-up and security.
11.3 All copies belong to the Licensor and is subject to this Agreement as if it were a licensed Copy of the Software.
11.4 The Licensee must not use the Copy for any other purpose.
11.5 The Licensee must ensure that the Copy bears a notice of the Licensor’s ownership of the copyright and that the Licenced Software contains information that is confidential to the Licensor.
11.6 Printing of Procedures is not recommended as only those online at the relevant website are current. If Procedures are printed in contradiction to the recommendation the Licensee does so at his/ her own risk..
11.7 The Licenced Software and its content will not be supplied to any other party out side of the Directors and Employees of the Licensee during the term of their employment and after ceasing employment, in any way, method or format.
11.8 The Licensee is responsible for any Licenced Software item printed or saved in any format, and will ensure the Licensor’s Copyright is not compromised.
B12. The Licensee must Inform Employees
12.1 The Licensee must issue notice to all its Employees authorized under this Agreement warning them of the limitations on the Licence and on the use of the Licenced Software, and of the possible consequences of breach of this Agreement.
B13. The Licensee must not Reverse Engineer
13.1 The Licensee must not reverse assemble or reverse engineer any part of the Licenced Software, or directly or indirectly allow anyone else to do so.
B14. The Licensee must not Modify
14.1 The Licensee must not modify the Licenced Software or merge any part of it with any other Software without the written consent of the Licensor other than the forms and templates that require minimal personalization to identify the individual office, cater for specific agency requirements and apply text to suit merge fields. The following rules apply to a modification or merger, whether the Licensor has consented to it or not:
14.1.1 the Licensee must bear all of the costs associated with modification or merger of the Licenced Software;
14.1.2 the Licensee must bear all of the risk of non-performance or less than optimal performance of the Licenced Software associated with any modification or merger;
14.1.3 The Licensee must continually indemnify the Licensor against any liability, loss, damage or expense that the Licensee incurs or suffers as a direct or indirect result of any modification or merger; and
14.1.4 this document applies to the modified or merged Software as if it were the Licensed Software.
B15. Licensor’s Duty to Deliver and Passing of Risk
15.1 The Licensor must do its best to provide access to the applicable version of Licenced Software via the supply of Member Logins and passwords to the Licensee on the agreed Commencement Date at the Approved Sites. The risk of loss of or damage to the Licenced Software passes to the Licensee when Member Logins and passwords have been delivered to the Licensee.
B16. The Licensee’s Duty to Install
16.1 The Licensee is responsible for supply, installation and maintenance of equipment, other technology and software required by the Licensee to access the web based Licenced Software and its subsequent use as per the Terms of this Agreement.
16.2 The Licensee must ensure that the conditions at the approved location are appropriate for the access to the Licenced Software.
B18. Limits on Warranty
18.1 The Licensor does not warrant to the Licensee that:
18.1.1 The Licensee will have uninterrupted or error-free access to and use of the software’s relevant website and therefore, the Licenced Software;
18.1.2 The website or Licenced Software will be error-free or free from viruses, faults or defects;
18.1.3 The website or Licenced Software is free from destructive materials, including but not limited to viruses, computer hackers or other technical sabotage; and
18.1.4 The content of the website and Licenced Software (including the text, videos, registration facilities, hyperlinks and the underlying HTML or XML) is accurate, complete or suitable for a particular purpose. The Licensee must rely on its own judgment in relation to any such matter.
18.2 The information, materials and services contained on this site and Licenced Software are provided to the Licensee “as is” and “as available”. The Licensor does not warrant or guarantee the currency, accuracy, adequacy or completeness of this information and materials, and expressly disclaim liability of any errors or omissions in this information or materials.
18.3 This site is an information site and as such may contain inaccuracies or typographical errors. Information may be changed and updated without notice. The website does not constitute an offer or contract. Price and availability of information is subject to change without notice.
B19. No Affiliation
19.1 The Licensor is not affiliated with any person whose goods or services are linked to or from the website, the Licenced software and any linked site. Whilst companies may promote their services and products via www.realestatedynamics.com.au the Licensor is not responsible or liable for their services or products.
B20. Ending or Termination of Licence
20.1 This Agreement may end or terminate in accordance with this Clause.
20.2 The Licensor may terminate this Agreement immediately, by giving written notice to the Licensee, if any of the following happens:
20.2.1 the Licensee breaches this Licence and the breach cannot be remedied;
20.2.2 the Licensee fails to remedy a breach of this Licence (or another inter-dependent Agreement), which can be remedied, for more than thirty(30) days after receiving a notice from the Licensor requiring the Licensee to remedy the breach; or
20.2.3 an Event indicating Insolvency occurs in relation to the Licensee.
20.3 The termination or ending of this Agreement does not affect accrued rights.
B21. Consequences of Termination:
21.1 Upon Termination of the Licence Agreement for any reason, all rights to the Licensed Software and any improvements made by either party, will revert to the Licensor. Other related services and secure access permissions and passwords will also be terminated. Termination includes access to the software, or improvements, in any format, from any location.
21.2 The Licensee or its employees will no longer be authorised to access or use the material related to the Agreement or any version of it stored in any format whatsoever. The Licensee must ensure all copies of, versions of, or backups of any software or document related to the Agreement are destroyed and not used in any way whatsoever from the end date of the Agreement.
21.3 On the date of the Termination of the Agreement or the next business day, Real Estate Dynamics will remove all materials related to the Agreement from the Licensee’s server via remote access which will be provided by the Licensee for this purpose.
21.4 The Licensee must inform its employees of the Termination of this Agreement and of the consequences of the Termination.
21.5 If the Licensee continues to use any of the software or documents after Termination of this Agreement the Licensee is liable to Real Estate Dynamics for any loss incurred by Real Estate Dynamics for the continued use of software or documents by the Licensee the equivalent value of three (3) months subscription.
PART C – SPECIAL TERMS FOR TRAINING AND DIAGNOSTIC SERVICES
These Special Terms apply to Customers using Real Estate Dynamics’ Training Services: Diagnostic Service and Training Courses including STANDOUT | BDM Performance Program.
1.1 Service is delivered by remote technologies or if otherwise specified in the Service Agreement the service meetings will be held at the Customer office, or at an alternative venue provided by the Customer.
1.2 Any other related expense as agreed by the Customer are to be paid by the Customer using their nominated credit card details provided.
1.3 Prices quoted are exclusive of Travel and Accommodation and related expenses which are payable by the Customer as detailed on the Order Form, Service Agreement, Tax Invoice or by other agreed arrangement.
2.1 Payment for attending the STANDOUT | BDM Performance Program is to be pre-paid online or as otherwise offered.
2.2 Payment for Training Services (other than STANDOUT | BDM Performance Program) will be deducted from the nominated method 2 business days before delivery of services. If payment is not made or deducted successfully within the timeframe, the services will not continue and cancellation fees will apply.
2.3 Where CPD is available and requested by the Client, the Client is to pay the relevant CPD fee.
C3. Cancellation of Training Courses including STANDOUT | BDM Performance Program
3.1 If the Customer provides more than 14 days notice of cancellation prior to the event start date, he/ she can choose to either:
3.1.1 reallocate the Registration to an alternative team member; or
3.1.2 receive a full refund of purchase price.
3.2 If the Customer provides between 8 and 14 days notice of cancellation prior to the event start date, he/ she can choose to either:
3.2.1 reallocate the Registration to an alternative team member; or
3.2.2 cancel and receive a 50% refund of purchase price.
3.3 If the Customer provides less than 7 days notice of cancellation prior to the event start date, he/ she can choose to either:
3.3.1 reallocate the Registration to an alternative team member; or
3.3.2 cancel with no refund.
C4. Cancellation of In-house Training Services
3.4 Services that are confirmed by way of a fully authorised Service Agreement and subsequently cancelled may incur a Cancellation Fee.
3.5 Where possible, the Trainer will endeavour to reschedule the service to another mutually convenient time.
3.6 Should this not be possible, Real Estate Dynamics reserves the right to charge a Cancellation Fee of 40% of the Services fee as per the authorised Service Agreement for any Service cancelled later than 21 days prior to the scheduled service date.
3.7 Services booked and subsequently rescheduled earlier than 21 days prior to the scheduled date of delivery will not incur a cancellation fee.
PART D – SPECIAL TERMS FOR RENT ROLL SERVICES
These Special Terms apply to Customers using Real Estate Dynamics’ other Services: Opinion of Market Worth, Marketing Service Agreement and other Service Agreement.
D1. Scope of Service
1.1 The Customer warrants that he/she agrees to the following:
1.1.1 the Opinion of Market Worth statement of understanding; and
1.1.2 that the Customer will not reply upon the Opinion of Market Worth to alter their financial position or to incur any financial obligations.
1.2 The services provided under a Service Agreement are limited to the services listed on the Service Agreement. Any additional services requested will be at an additional charge.
PART E – SPECIAL TERMS FOR OTHER SERVICES
These Special Terms apply to Customers using Real Estate Dynamics’ other Services: Mystery Shopper, Document Compliance Check and other Services by Service Agreement.
1.1 The other services provided are limited to the services listed in the document. Any additional services requested will be at an additional charge.
1.2 Payment for the other Services will be deducted from the Customer’s nominated credit card provided 2 business days prior to the commencement of the service.
PART F – SPECIAL TERMS FOR FOUNDATION | BUSINESS PERFORMANCE STRUCTURE
These Special Terms apply to Customers and Users of FOUNDATION | Business Performance Structure.
F1. Payment Terms
1.1 The full program fee will be deducted from the Customer’s nominated credit card provided immediately upon purchase, unless the option to pay in instalments has been offered.
1.2 If the program fee is being paid in instalments, all instalments which equal the full program fee must be paid 10 days before the first scheduled session.
2.1 You can cancel your program enrolment by providing 10 days notice prior to your first scheduled session and receive a full refund.
2.2 If you choose to cancel your program enrolment at any time after your first scheduled session, no refund will be given.
2.3 Should you be unable to continue the program due to legitimate reasons such as sickness, death or family circumstances, a pro-rata refund may be given less a $250.00 administration fee upon receipt of evidence.
2.4 In the event that Real Estate Dynamics cancels your program enrolment, a full refund will be issued.
PART G – SPECIAL TERMS FOR RENT ROLL COACHING PROGRAMS
These Special Terms apply to Customers and Users using Rent Roll Coaching.
G1. Coaching Program Members Requesting Hold Periods
In certain circumstances of health issues, financial hardship or other serious situations, Real Estate Dynamics may allow up to 3 months to place the monthly instalment payments on hold or at a reduced amount.
This is assessed on a case by case basis.
Only one convalescence period will be granted during the agreement timeframe.
At the end of the agreed convalescence period the monthly payments are to continue as per the agreement until paid in full.
If a member is unable to continue beyond the agreed convalescence period, the full subscription amount of the agreement term will become due and payable and the membership will be cancelled. In this situation a payment arrangement may be able to be organised at the sole discretion of Real Estate Dynamics.
G2. Cancellation Notice Period
This Agreement covers these 3 phases:
- First 3 months – Client may cancel the Agreement with 1 business day notice in writing at any time during this phase
- The next 12 months
- Cancel with 30 Days’ notice in writing before end of Contract term
- Thereafter: this Agreement rolls over to a month by month term
- Client may cancel this Agreement at any time with 30 days’ notice in writing
G3. Refer to the Service Agreement for any further Rent Roll Coaching Special Terms
PART H – SPECIAL TERMS FOR KNOWLEDGE | PERFORMANCE SUPPORT PLATFORM
These Special Terms apply to Customers and Users using KNOWLEDGE | Performance Support Platform.
H1. INCLUSIONS AND ACCESS
- The service inclusions provided are limited to the services listed in the shop details.
- If you purchase our services, you should make the purchase decisions based upon features that are currently available.
- We reserve the right to change our product and service plans at any time without notice, in our sole discretion.
- Login details will be provided within 24 business hours of the purchase and will be emailed to the email address provided upon purchase.
H2. PURCHASE PRICE AND PAYMENT
- Initial payment will be deducted from the Customer’s nominated credit card provided immediately upon purchase.
- All future monthly instalments will be deducted from the Customer’s nominated credit card on the monthly anniversary of the initial purchase.
- If your credit card is invalid for any reason, your access to the platform will be suspended.
- any time by providing 30 days notice in writing to email@example.com or by logging into your account through the Real Estate Dynamics website.
- 30 days notice of cancellation must be provided.
- Upon cancellation, your user account shall be cancelled and closed, and your user name and password shall be deactivated.
H4. LIMITS ON WARRANTY
The Licensor does not warrant to the Licensee that:
- The Licensee will have uninterrupted or error-free access to the platform
- The platform will be error-free or free from viruses, faults or defects
- The platform is free from destructive materials, including but not limited to viruses, computer hackers or other technical sabotage; and
- The content of the platform (including the text, videos, registration facilities, hyperlinks and the underlying HTML or XML) is accurate, complete or suitable for a particular purpose. The Licensee must rely on its own judgment in relation to any such matter.
- The information, materials and services contained on this platform are provided to the Licensee “as is” and “as available”. The Licensor does not warrant or guarantee the currency, accuracy, adequacy or completeness of this information and materials, and expressly disclaim liability of any errors or omissions in this information or materials.
- This platform is an information site and as such may contain inaccuracies or typographical errors. Information may be changed and updated without notice. The platform does not constitute an offer or contract. Price and availability of information is subject to change without notice.
H5. EXCUSED PERFORMANCE
The Licensor shall not be liable for any failure to access or delayed access. If such access is prevented, hindered or delayed by reason of any cause beyond the reasonable control of the Licensor (“Excusing Event”), including without limitation, any third party, any labour dispute, strike or other industrial disturbance, Act of God, flood, shortage of materials, earthquake, casualty, war, act of the public enemy, terrorism, data corruption, internet interruption, telephony services interruption, riot, insurrection, embargo, law, blockage, action, restriction and regulation or order of any government, government agency or division thereof.
H6. LICENCED PRODUCT
- Notify us promptly of any such unauthorized access or use. Any violation of these Terms may result in the suspension or termination of your ability to use KNOWLEDGE.
- KNOWLEDGE may contain links to third party sites. We are not responsible for the content of any linked site or any link contained in a linked site.
- We reserve the right to remove any links at any time. We do not endorse the companies or services or products or pricing offers or rewards for users to which it links and reserves the right to note such on its web pages.
- Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to all intellectual property rights in the general Knowledge platform, including but not limited to its user interface, branding, content, ideas, and underlying technology. No rights are granted to You hereunder other than as expressly set forth herein.
- By subscribing to KNOWLEDGE, you agree that we may use your email address and mobile phone number to send information, updates and survey evaluations.
- Subject to the above, we will treat your personal information submitted for KNOWLEDGE in accordance with Our Privacy Statement at realestatedynamics.com.au/privacy/