TERMS AND CONDITIONS FOR USERS
Last updated: 27th April 2018
These Terms and Conditions form an agreement between Property Connect Operations Pty Ltd ACN 620 787 117 (referred to as “we”, “us” or “our”) and an individual registering to be a user of our services (referred to as “you” or “your”). You warrant that you have the legal capacity to accept these Terms and Conditions and form an agreement with us.
We provide a software application called ‘LiveOffer’ (“App”) and a system which enables you, as a user of the App, to make offers to rent residential properties listed on the App (“Residential Properties”) in real-time (“Services”). We accept your and other users’ offers to rent Residential Properties (“Offers”) on behalf of the owner of a Residential Property (“Landlord”). Offers are ranked and, if your Offer is not the highest-ranked Offer, you will be able to make a new Offer. The highest-ranked Offer at the end of the process is then presented to the Landlord for approval. If the Landlord does not approve that Offer, the second highest-ranked Offer is then presented to the Landlord for approval. This process continues until the Landlord approves an Offer. At that point in time, the user who made the Offer approved by the Landlord (“Approved User”) will be required to pay a holding fee to us on behalf of the Landlord for the Residential Property (“Holding Fee”). The real estate agent managing the process of renting out the Residential Property (“Real Estate Agent”) will then liaise with the Approved User in relation to entering into a residential tenancy agreement for the Residential Property.
Offers are irrevocable. If your Offer is approved by the Landlord you will be given a copy of the residential tenancy agreement for the Residential Property, and you can still choose at that point not to enter into the residential tenancy agreement. Other than the Holding Fee, we do not receive any payments from you in relation to a Residential Property on behalf of the Landlord.
In order to use the Services you must agree to these Terms and Conditions. Upon your electronic acceptance of these Terms and Conditions, you will be legally bound by these Terms and Conditions.
If you have any questions or feedback on the Services, please contact our support team at firstname.lastname@example.org (“Support Team”).
1. Use of Services
1.1 To use the Services you are required to register for an account on the App (“Account”).
1.2 To register for an Account, you must be at least 18 years old.
1.3 Account registration requires you to provide certain information, including without limitation, personal information, email and a username and password (“User Information”).
1.4 You warrant that all information that you have provided to us for registration is true, accurate and up-to-date in all respects. If your details or information changes you must notify us immediately. You can update or correct your details or information at any time via the App or by contacting our Support Team.
1.5 You are required to keep your User Information confidential. You are responsible for all activity that occurs under your Account. If you suspect that there has been unauthorised access to your Account, please contact our Support Team immediately.
1.6 You are responsible for your use of the Services and your own behaviour as a user of the Services.
1.7 You must not:
(a) use the App on behalf of any other individual or entity;
(b) use the Services for any unlawful purpose;
(c) use the Services in any way that interrupts, damages, impairs or makes the Services less efficient;
(d) attempt to:
(i) transfer any files which contain viruses, trojans or other harmful programs via the App;
(ii) access the accounts of other users of the App;
(iii) penetrate any of our security measures; or
(iv) decipher, decompile, disassemble or reverse engineer any of the code or software comprising in or in any way making up a part of the App;
(e) use the Services to disseminate any content which is defamatory, obscene, or may have the effect of being harassing, threatening or abusive to an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability or otherwise;
(f) engage in any screen scraping or data acquisition and consolidation;
(g) use the Services to advertise or promote third party or your own products or services;
(h) perform any act which may damage our reputation or bring our business into disrepute; or
(i) advocate, encourage, or assist any third party in doing any of the above.
1.8 You are responsible for obtaining the necessary telecommunication and data services, and acquiring and updating compatible devices, to access and use the Services.
2. Nature of the Services
2.1 We do not own, provide, control, manage, offer, deliver, or supply any Residential Properties. Real Estate Agents or any Landlord are responsible for the relevant Residential Property and any residential tenancy agreement for that Residential Property. Except as expressly set out in these Terms and Conditions, we are not acting as an agent of a Real Estate Agent or a Landlord.
2.2 We do not have any control over and, subject to clause 11.1, do not guarantee:
(a) the existence, quality, safety or suitability of any Residential Property;
(b) the reliability, accuracy or completeness of any description of a Residential Property; or
(c) the actions or inactions of any Real Estate Agent or Landlord in relation to a Residential Property.
2.3 We do not endorse any Residential Property, Real Estate Agent or Landlord. You should always exercise due diligence and care when deciding whether to make an offer for a Residential Property or to enter into a residential tenancy agreement for a Residential Property.
3. Links to Third Party Websites
3.1 The App often includes hyperlinks to websites operated by third parties. Links to third party websites include, without limitation, links to the websites of our Real Estate Agent customers. Those third party websites do not form part of the App and are not under the control or the responsibility of us.
3.2 When you link to those websites, you leave the App and do so entirely at your own risk. We make no warranties as to the accuracy or reliability of the information contained on any third party websites, and we disclaim all liability and responsibility for any direct or indirect loss or damage which may be suffered by you through relying on anything contained on or omitted from such third party websites.
4. Third Party Content
4.1 The App contains content provided to us by third parties, including, without limitation, Real Estate Agents and Landlords (“Third Party Content”).
4.2 We do not monitor or make inquiries in relation to Third Party Content.
4.3 Subject to clause 11.1, we are not responsible for, do not endorse and make no representations or warranties to you or to any other user, either expressly or impliedly, as to the reliability, accuracy or completeness of the Third Party Content or any information provided through the Services. Third Party Content does not represent our views. You rely on Third Party Content completely at your own risk. We recommend that you use your discretion when acting on Third Party Content and information received through the Services.
5. Tenancy Reports
5.1 We are an authorised reseller of Equifax National Tenancy Database Tenancy Reports (“Reports”).
5.2 Landlords use the National Tenancy Database for the purposes of deciding whether to enter into a residential tenancy agreement with a person.
5.3 Landlords use Reports for the purposes of checking your tenancy history.
5.4 Reports may be purchased on the App by completing your renter’s profile and pre-screening in the renter’s dashboard. Alternatively, if you are the highest-ranking Offer at the end of the LiveOffer process and are yet to purchase a Report, you will be prompted by email to purchase a Report at that time.
5.5 If you order a Report from us, you agree that (in addition to the other provisions of these Terms and Conditions):
(a) you will comply with Equifax’s conditions of use for the Report, available at https://www.tenancydatabase.com.au/terms;
(b) you will only order a Report in relation to you (and not in relation to any other individual);
(c) you will not have access to the Report, but you will be provided with notice of the result of the Report;
(d) we may provide a copy of the Report, or information contained in the Report, to each Real Estate Agent and Landlord of any Residential Properties in respect of which you make an Offer; and
(e) we may provide evidence of your electronic acceptance of these Terms and Conditions to Equifax Australia Information Services and Solutions Pty Ltd.
5.6 We do not monitor or make inquiries in relation to the Reports.
5.7 Subject to clause 11.1, we are not responsible for, do not endorse and make no representations or warranties to you or to any other user, either expressly or impliedly, as to the reliability, accuracy or completeness of a Report or any information provided through a Report. Reports do not represent our views. You rely on a Report completely at your own risk. We recommend that you use your discretion when acting on a Report and information received through that Report.
5.8 Subject to clause 11.1, we exclude all liability for loss or damage in relation to:
(a) the accuracy, completeness or quality of the information supplied as part of a Report; and
(b) any decision made by you or any other person using information supplied as a part of a Report.
5.9 If you wish to contact and obtain information from the National Tenancy Database, please email email@example.com or call 13 83 32.
6. Holding Fees
6.1 If you are the Approved User, you must pay us, on behalf of the Landlord, the Holding Fee for the Residential Property. The Holding Fee cannot exceed one week's rent for the Residential Property (based on the rent under the proposed residential tenancy agreement).
6.2 If an Approved User has paid a Holding Fee, the Landlord must not enter into a residential tenancy agreement for the Residential Property with any other person within 7 days after receipt of the Holding Fee (or within such further period as may be agreed with the Approved User) unless the Approved User notifies the Landlord that the Approved User no longer wishes to rent the Residential Property or will not enter into the residential tenancy agreement.
6.3 [A Holding Fee may be retained by the Landlord, including if the Approved User enters into the residential tenancy agreement, fails or refuses to enter into the residential tenancy agreement within 7 days after receipt of the Holding Fee (or within such further period as may be agreed with the Approved User), or seeks to negotiate the residential tenancy agreement, but a Holding Fee must not be retained by the Landlord and will be refunded to the Approved User if:
(a) the Approved User refuses to enter into the residential tenancy agreement because of a material misrepresentation or failure to disclose a material fact by the Landlord or Landlord's agent; or
(b) the Landlord enters into a residential tenancy agreement for the Residential Property with another person in breach of clause 6.2
6.4 If an Approved User and the Landlord enter into a residential tenancy agreement after payment of the Holding Fee, the Holding Fee will be credited towards rent.
7.1 It is free to access the App.
7.2 Subject to clauses 5.4 and 6.1, you do not have to pay any fees to us (for our own account or for Landlords) for the Services.
7.3 Payments for Reports or Holding Fees can only be made by credit card and are processed by Stripe. We reserve the right to pass on Stripe’s credit card processing fees to you. These processing fees will not exceed 3.5%.
8. Term and termination
8.1 These Terms and Conditions commence from the date that these Terms and Conditions are accepted by you, and will continue until terminated in accordance with this clause.
8.2 You may terminate your agreement with us any time by closing your Account by following the instructions on the App.
8.3 We may terminate these Terms and Conditions and close any Account that you have with us, for any reason, by giving you 7 days’ notice in writing.
8.4 We may terminate these Terms and Conditions and close any Account that you have with us, immediately and without notice, if you commit a material breach of these Terms and Conditions.
8.5 We reserve the right to suspend, restrict or terminate your access to the Services at any time without notice if we have reasonable grounds to believe you have breached any of these Terms and Conditions. This does not limit our right to take any other action against you that we consider appropriate to defend our rights or those of any other person.
9. Intellectual property
9.1 Whilst you hold an Account with us, we grant you a royalty-free, non-exclusive and non-transferable licence to use the App solely for the purpose of using the Services (“IP Licence”).
9.2 You have no right to sub-licence the IP Licence.
9.3 You acknowledge and agree that the IP Licence grants you no rights in relation to our copyright, trademarks or other intellectual property rights, including without limitation, rights in and to logos, graphics, photographs, animations, videos, software, applications and website, or the intellectual property of our partners (including, without limitation, Third Party Content and Reports), other than the non-transferable, personal right to use and receive the Services and, subject to clause 5.4, a Report, in accordance with these Terms and Conditions.
10. Privacy statement
10.1 We are committed to protecting your privacy.
11. Consumer guarantees, limitation of liability and disclaimers
11.1 The Services and the Reports come with consumer guarantees under the Australian Consumer Law in the Consumer and Competition Act 2010 (Cth) that cannot be excluded by these Terms and Conditions. Nothing in these Terms and Conditions affects your statutory rights as a consumer. However, we make no express warranties beyond the consumer guarantees.
11.2 To the extent permitted by law, our total liability for any loss or damage that you suffer or incur from our failure to comply with consumer guarantees is limited, at our absolute discretion, to us supplying the Services or Reports to you again or us paying to you the cost of having the Services or Reports supplied again.
11.3 Subject to clause 11.1, we provide the Services and the Reports to you on an “as is” and “as available” basis. We do not represent, warrant or provide any guarantees in relation to the availability or uptime of the Services or the Reports, nor do we represent, warrant or provide any guarantee that your access to or use of the Services or the Reports will be uninterrupted or error free. The Services and the Reports are subject to limitations, delays and other problems which are inherent in the use of internet and electronic communications. We accept no responsibility for any delays, delivery failures or losses or damages which you may suffer as a result of such problems.
11.4 You acknowledge and agree that we are not liable for:
(a) your actions or inactions in your capacity as a user of the Services or the Reports;
(b) the actions or inactions of any other users of the Services, any Real Estate Agent or any Landlord;
(c) loss caused by our breach of these Terms and Conditions which does not arise in the natural and ordinary course of events, or which exceeds $1,000, although we acknowledge that this limitation will not apply if and to the extent that we are also liable for that loss caused by our breach of the consumer guarantees under the Australian Consumer Law;
(d) loss of revenue, profit, goodwill, reputation, opportunity, data or information arising out of your access and use, or inability to access or use, the Services or the Reports; or
(e) a failure to provide the Services or the Reports or meet any of our obligations under these Terms and Conditions where such failure is due to events beyond our reasonable control, including without limitation, a network or third party software failure.
11.5 You acknowledge and agree that we have limited control over the nature and content of the information that is transmitted or received by you or other users of the Services. We do not monitor such content in the usual course of business, and to the extent permitted by law, we will not be liable for such content.
12.1 You are liable for and agree to indemnify us against all claims, liabilities, penalties, suits and actions, resulting directly or indirectly from:
(a) any information that you have provided to us which is false, misleading, or otherwise inaccurate or incomplete;
(b) your breach of any applicable laws and regulations;
(c) your breach of any of these Terms and Conditions; or
(d) a misuse of the Services or the Reports by you.
12.2 This clause 12 will survive the termination of this Agreement.
13. Dispute resolution
13.1 If you wish to:
(a) provide us with any feedback;
(b) make a complaint in relation to the Services or the Reports;
(c) make a claim under these Terms and Conditions; or
(d) make a complaint about other users of the Services,
please get in touch with our Support Team.
13.2 Each party agrees to act reasonably in seeking to resolve any disputes arising under these Terms.
14.1 Basis of Agreement. These Terms and Conditions and any document expressly referred to in these Terms and Conditions supersede all previous written agreements between the parties as to their subject matter.
14.2 Relationship of the parties. These Terms and Conditions do not form an employment agreement and does not create an employer-employee relationship between the parties. No joint venture, partnership or agency relationship exists between the parties.
14.3 Assignment. These Terms and Conditions are personal to you. You may not transfer your rights or obligations under these Terms and Conditions to anyone else. However, you acknowledge and agree that we may transfer our rights or obligations or sub-contract our obligations under these Terms and Conditions to another legal entity provided that this will not adversely affect the standard of service you receive under these Terms and Conditions. As set out in clause 8.2, you may terminate your agreement with us at any time.
14.4 No waiver. Any delay by us in exercising a right under these Terms and Conditions does not operate as a waiver of that right. If you breach these Terms and Conditions and we take no action against you, we will still be entitled to take action in any other situation where you breach these Terms and Conditions.
14.5 Severability. If any part of these Terms and Conditions is disallowed or found to be ineffective by any court or regulator, the other provisions shall continue to apply.
14.6 Amendment. We may amend these Terms and Conditions from time to time in order to reflect changes to the Services in which case we will give you reasonable notice either by email or via the App. Your continued use of the Services following such amendments constitutes your acceptance of the amendments and your consent to be bound by these Terms and Conditions as amended. As set out in clause 8.2, you may terminate your agreement with us at any time.
14.7 Notices. Any notice to be delivered by us to you under these Terms and Conditions will be delivered to your registered email address. Any notice delivered by you to us under these Terms and Conditions will be delivered by you emailing our Support Team. By agreeing to these Terms and Conditions, the parties consent to the electronic service of notices and other documents in accordance with the requirements of the Electronic Transactions Act 2000 (NSW) (if the Residential Property is in NSW), the Electronic Transactions (Victoria) Act 2000 (Vic) (if the Residential Property is in Victoria) or the Electronic Transactions Act 2011 (WA) (if the Residential Property is in Western Australia).
14.8 Governing law. These Terms and Conditions are governed by the laws of New South Wales and each party submits to the non-exclusive jurisdiction of the courts operating in New South Wales.