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The term “Rockend” or “us” or “we” refers to the owner of the website. The term “you” refers to the user or viewer of our website.
The content of the pages of this website is for your general information and use only. It is subject to change without notice.
Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
All trademarks reproduced in this website, which are not the property of, or licensed to the operator, are acknowledged on the website.
Unauthorised use of this website may give to a claim for damages and/or be a criminal offence.
From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
Your use of this website and any dispute arising out of such use of the website is subject to the laws of Australia.
1 Definitions and Interpretation
Additional Services means any services provided to Customer in addition to access and use of the Service, including but not limited to any consulting services, referral services, services in connection with integrating Approved Third Party Applications with the Service and any additional training services (which may include facilitation of training in connection with Approved Third Party Applications integrated or used with the Service).
Administrator means the person who is authorised by the Customer to access and use the Service under Customer’s account and who is nominated by the Customer as the Administrator during the registration process for the Service.
Aggregated Data means Data which has Personal Information removed from it.
Approved Third Party Application means any third party software, application, product or service integrated with or used in conjunction with the Service from time to time with the approval of Property Tree.
Authorised User means a person invited by the Administrator to access and use the Service under Customer’s account.
Confidential Information of a party is information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organisational structure, financial position, personnel, policies and business strategies.
Customer means the party whose details have been entered as the customer during the registration process for the Service and any parent company of that party and each subsidiary of that party (being an entity in which the party holds at least 50% of the ordinary shares or common stock) as may be notified by the party to Property Tree, and only for so long as the parent company or subsidiary remains a parent company or subsidiary of the party.
Data means the data which is input into the Service through the Customer’s account when using the Service or through any Approved Third Party Application, including details of the Customer, each Authorised User, each property under management, property owners, tenants and other related data, which may include Personal Information of the Customer, each Authorised User or other persons.
Fee Schedule means the schedule of fees as provided to Customer and agreed by Customer during the registration process in which the fees applicable to the use of the Service are set out.
Force Majeure means any event caused by occurrences beyond a party’s reasonable control, including acts of God, fire or flood, war, terrorism, sabotage, epidemics, governmental regulations, policies or actions enacted or taken subsequent to Customer’s execution of the registration form for provision of the Service, or any labour, telecommunications, internet or other utility failure, interruption, shortage, outage, strike or curtailment or the acts or omissions of a third party.
GST means the tax imposed or assessed by the GST Act and its related legislation and includes any similar or substitute impost introduced in the future.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hosting Service Provider means Microsoft Corporation (and its related companies) and any other person or entity Property Tree may engage from time to time to provide data hosting and storage services in connection with the Service and Data and to provide the serving infrastructure which operates under the direction of Property Tree.
Implementation Fee means the fee payable by Customer to Property Tree in connection with setup of the Service and initial training in use of the Service as set out in the Fee Schedule.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Personal Information has the meaning given to that expression in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Property Tree means Property Tree Pty Ltd (ABN:30 133 696 081) of Level 6, 29-57 Christie Street, St Leonards, New South Wales 2065, Australia.
Service means the online real estate management service accessible through the Website, and more accurately described on the Website.
Service Fee means the service fee payable by Customer for the Service as set out in the Fee Schedule.
Start Date means the date from which the Service is made available to Customer or as otherwise agreed between the parties.
Website means the Property Tree website whose home page is currently accessible via URL http://www.propertytree.com (including all related web pages, sub-pages and URLs), any other website that may replace that website from time to time and any other application distribution platform (including mobile applications) through which the Service is provided or accessed.
(a) the singular includes the plural and vice versa;
(b) a reference to any legislation includes any statutory modification or re-enactment of, and any subordinate legislation issued under, that legislation or legislative provision;
(c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
(e) a reference to dollars or $ means the lawful currency of Australia; and
2 Accepting the terms
3 License to use Service
4 Access Credentials
4.1 Property Tree will provide the Administrator with a username and password, which will enable the Administrator to access and use the Service on behalf of Customer. The Administrator must select his or her own password at the time of first use of the Service. Customer may change its Administrator by written notice to Property Tree.
4.2 The Service allows the Administrator to invite Authorised Users to access and use the Service under Customer’s account. The Administrator inviting an Authorised User to use the Customer’s account will constitute authorisation of that Authorised User by Customer to use it. A username, linked to the username allocated to the Administrator and the Customer’s account, will be created for each new or additional Authorised User. Each Authorised User must select his or her own password at the time of first use of the Service.
4.3 Customer acknowledges that it may be required to provide Property Tree with certain Personal Information (which may include a name, email, address or property details or Personal Information relating to Authorised Users) to access and use the Service.
4.4 Customer must:
(a) ensure that each Administrator and Authorised User keeps his or her username and password confidential and does not disclose it to any other person (and in order to improve the security of the Customer’s account, amends his or her password from time to time);
(b) ensure that it can identify and manage each Authorised User entrusted with a username and password combination for Customer’s account;
(c) refrain from authorising anyone to use Customer’s account who is not either employed by Customer or under contract with Customer to perform functions similar to those commonly performed by employees;
(d) notify PropertyTree of the names of each Authorised User if requested by Property Tree; and
(e) take all necessary steps to prevent unauthorised access to Customer’s account and immediately notify Property Tree of any unauthorised use of Customer’s password or account or any other breach of security.
4.5 Customer is responsible for all activities that occur under its account, including all fees and charges in connection with that use. Customer is solely responsible for the actions of all Authorised Users and indemnifies, and will defend and hold harmless, PropertyTree, its affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents in relation to any loss, claim or damage in connection with any Authorised User’s access to and use of the Service via the Customer’s account or login.
4.7 Access to the Website and Service may only be available to compatible devices which meet specific system or software requirements specified by Property Tree or on the Website from time to time. Property Tree gives no warranty or guarantee that access to or use of the Website or Service will be available to all devices and Customer is solely responsible for ensuring that any device it uses meets system, software or other requirements specified by Property Tree or on the Website from time to time.
5 Use of the Service
5.2 Customer must not, nor cause or permit a third party to:
(a) access and/or use the Website or any of the Service in a manner or for a purpose which:
(i) is improper, immoral, illegal or fraudulent,
(ii) infringes any person’s Intellectual Property Rights, or
(iii) restricts or interferes with the provision of the Service by Property Tree to any other customers or users;
(b) reverse engineer, reverse assemble, reverse compile or copy or duplicate or modify or make derivative works of or re-sell all or part of the Service (or any of Property Tree’s Intellectual Property Rights in the Service);
(c) enter into any transaction relating to access or use of the Service with, or disclose any part of the Website (or Customer’s account information or access credentials) and/or Services (or any of Property Tree’s Intellectual Property Rights in the Service) to, a party other than Property Tree, without the written consent of Property Tree; or
(d) gain, attempt to gain or assist or request any person to gain unauthorised access to the Website, Data and/or Service, computer systems or networks connected to the Service, including through hacking, password mining or any other means.
5.4 Property Tree may vary the scope of the Service, including by adding, removing or changing functionality and features of the Service, at any time and from time to time at its discretion.
6 Customer Data
6.2 Customer warrants that:
(a) it has the right to, or has otherwise obtained all licences, consents, authorisations and approvals and made all necessary disclosures necessary to, collect, store, disclose, use, upload, reproduce, permit Property Tree to reproduce and/or transfer the Data using the Service, including any Personal Information included in the Data;
(b) the Data will not violate or infringe upon the rights (including Intellectual Property Rights) of any other person;
(c) the Data will not contain a virus or other harmful component; and
(d) the Data will comply with any guidelines Property Tree specifies on the Website.
6.3 Solely to enable Property Tree to provide the Service, Customer grants to Property Tree, or warrants that it has procured for Property Tree from the copyright owner or licensor of the Data, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to do and authorise the doing of all acts comprised in the copyright in all Data.
6.4 Customer is responsible for and must adopt reasonable measures to limit its exposure to the potential loss, corruption, disclosure and damage of the Data, including making appropriate arrangements for secure back up or storage of the source material in connection with the Data. Property Tree expressly excludes liability for any loss of Data no matter how caused.
6.5 Customer acknowledges that Property Tree may not be able to provide all or part of the Service (or such Service in the manner intended) if the Data provided by Customer is not complete, correct or accurate or of a quality or condition suitable for processing based on Property Tree’s applicable standards, specifications and procedures, or is otherwise not in the format required by Property Tree. Customer acknowledges and agrees that Property Tree is not responsible for any errors, omissions, losses or damages of any kind resulting directly or indirectly from any inaccuracies in Data provided by the Customer or any failure of the Customer to ensure the integrity, completeness or accuracy of Data before providing it to Property Tree or inputting it into the Service.
6.6 Customer acknowledges that Property Tree may use the Data and information derived from the Data to produce a compilation of aggregated data and information, which may include similar data and information from other customers of Property Tree. Property Tree owns all right, title and interest in and to the aggregated data and information, and may use and commercialise the aggregated data and information at its absolute discretion.
6.7 Customer agrees that Property Tree will not be in breach of its obligations under clauses 16 and 17 when producing a compilation of aggregated data and information. In preparing such aggregated data and information, Property Tree will use reasonable endeavours to ensure that the Confidential Information or Personal Information disclosed by Customer to Property Tree cannot be reasonably ascertained from the aggregated data and information.
6.8 If Customer accesses or uses (or requests to access or use) an Approved Third Party Application, Customer:
(b) warrants that it has read and understood and agrees to comply with all Third Party Terms;
(c) consents to Property Tree entering into an agreement with the provider of the Approved Third Party Application for the purpose of facilitating integration of the Approved Third Party Application with the Service;
(d) consents to Property Tree disclosing to, transferring to and otherwise exchanging with the provider of the Approved Third Party Application all Data (including Personal Information) as may be required in order to facilitate integration of the Approved Third Party Application with the Service or otherwise as may be required for the Customer and all Authorised Users to use the Approved Third Party Application with the Service; and
(e) warrants that it has the right to, or has otherwise obtained all licences, consents, authorisations and approvals and made all necessary disclosures (including to its own customers) necessary to permit Property Tree to disclose to, transfer to and otherwise exchange with the provider of the Approved Third Party Application all Data (including Personal Information) as may be required in order to facilitate integration of the Approved Third Party Application with the Service or otherwise as may be required for the Customer and all Authorised Users to use the Approved Third Party Application with the Service.
7 Communication conditions
7.1 If Customer uses any communication tools available through the Website (such as any blog, forum, chat room or message centre), Customer agrees only to use such communication tools for lawful and legitimate purposes. Customer must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, including (but not limited to):
(a) offers of goods or services for sale;
(b) unsolicited commercial e-mail;
(c) files that may damage any other person's computing devices or software;
(d) content that may be offensive to Property Tree or any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which Customer does not have the right to use).
7.2 When Customer makes any communication on the Website, Customer represents that it is permitted to make such communication. While Property Tree may remove any communication at any time in its sole discretion, Property Tree is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Service. As with any other web-based forum, Customer must exercise caution when using the communication tools available on the Website.
8.1 Customer must make its own precautions to ensure that the process which it uses for accessing the Service does not expose it to the risk of viruses, malicious computer code or other forms of interference which may damage Customer’s computer system.
8.2 Property Tree does not accept responsibility for any interference or damage to Customer’s computer system which arises in connection with Customer’s use of the Service.
9 Hosting of Data and the Service
9.1 Customer acknowledges that Property Tree engages a Hosting Service Provider to provide data storage services, to host the Service and to store Data. The Hosting Service Provider may transmit, maintain and store all or parts of the Data (including Personal Information) on multiple servers across various jurisdictions. Servers in which Data (including Personal Information) may be stored by the Hosting Service Provider are likely to be located in Australia, Singapore and Hong Kong, although additional or other locations may be used by the Hosting Service Provider in the future. The Privacy Act requires Property Tree to ensure that its Hosting Service Provider and any other third party provider it may use from time to time, comply with applicable Australian privacy laws unless the Customer agrees otherwise. Acknowledging all of the above, by providing Property Tree with Data (including Personal Information) or by accessing or using the Service or the Website, Customer:
(a) consents to Property Tree disclosing and transferring Data (including Personal Information) to its Hosting Service Provider for the purpose of allowing the Hosting Service Provider to host all data necessary to support the Service and Website and for Property Tree to provide the Service to the Customer;
(b) consents to Property Tree and the Hosting Service Provider transmitting, maintaining and storing Data (including Personal Information) between and on servers located outside of Australia, including in the regions referred to above; and
9.2 The Host Server will be located in an environment which has levels of security (including access restrictions) consistent with standards commonly adopted in the application hosting industry to ensure no unauthorised access or use of any part of the Service or Data by any person.
10 Service Availability and Support
10.1 While Property Tree intends to use reasonable endeavours to make the Service and Data available for Customer’s use on a 24 hours a day, seven days a week basis, with a 99.8% uptime. Customer expressly acknowledges and agrees that service continuity is not assured and that the Service and Data are provided on an ‘as is’ basis. In particular, Customer agrees that on occasions the Service, Data and/or Website may be unavailable or have limited availability including:
(a) to permit routine or emergency maintenance to take place,
(b) to permit upgrades or other development activity to take place,
(c) due to technical malfunctions of Customer’s software, equipment or infrastructure (e.g. telecommunications connectivity, network congestion or delays),
(d) due to a Force Majeure event; or
(e) due to clause 10.3 applying.
10.2 In the case of technical problems which adversely affect Customer's use of the Service, Customer must make all reasonable efforts to investigate and diagnose problems before contacting Property Tree. If Customer still needs technical help after first attempting to investigate, diagnose and resolve the technical problem or requires any assistance with use of the Service, Customer must notify Property Tree promptly via the support portal or telephone service provided by Property Tree for support purposes. Telephone calls and support requests may be made by the Administrator or any Authorised User. Property Tree may impose reasonable usage limitations on support services from time to time, at its discretion. Property Tree reserves the right to refuse acceptance of telephone calls and support requests, to refuse to provide support services or to invoice the Customer for certain support services as an Additional Service under clause 11.1, at its discretion, if:
(a) Property Tree, acting reasonably, considers that telephone calls or support requests from the Customer are frivolous, exceed reasonable volumes or are in respect of technical problems or other queries already resolved by Property Tree;
(b) telephone calls or support requests relate to subject matter already covered by initial training services or documentation provided by or on behalf of Property Tree in relation to use of the Service; or
(c) the Administrator or any Authorised Users request or require additional training in connection with use of the Service.
10.3 Property Tree may temporarily limit or suspend the availability of all or part of the Service or Data if it is necessary for reasons of public safety, security or maintenance of the Service, interoperability of services, data protection or to perform work that is necessary for operational or technical reasons.
11 Additional Services
11.1 Customer may request Property Tree to provide Additional Services to Customer. If so, Property Tree may charge Customer for providing the Additional Services at the prevailing rates charged by Property Tree for those services, as notified by Property Tree to Customer.
12 Term, Fees and payment
12.1 Customer must pay the Implementation Fee in full at the time of submitting its online registration form for the Service, in accordance with the online registration process for the Service. Customer acknowledges and agrees that the Implementation Fee will not be refunded if Customer terminates this Agreement prior to completion of training or does not utilise or complete all training hours and services offered by Property Tree. The Implementation Fee will only be refunded if Property Tree terminates this Agreement prior to commencing implementation and training in respect of the Service.
12.3 Payment of fees is to be made by direct debit by charging Customer’s credit card, using the credit card details provided by Customer.
12.4 After the Minimum Term, Property Tree may change the Service Fee at any time by giving Customer thirty (30) days’ notice of the change.
13 Late or default in payment
(a) all money owing to Property Tree by Customer becomes immediately payable;
(b) Property Tree may suspend access to the Service, and may charge a reactivation fee for suspended Service; and
14 Taxes and GST
(a) a corresponding adjustment must be made;
(b) adjustment notes must be issued; and
(c) any payment must be made, between the parties as may be necessary to give effect to the adjustment.
15 Intellectual Property
15.1 Except for the limited licence to access and use the Website and Service under clause 3, all ideas, concepts, know-how, data processing techniques, data compilations, Aggregated Data, software, documentation, trade marks, trade secrets, copyright and inventions and other Intellectual Property Rights comprised in or in connection with the Website and the Service (including their underlying technology, software, programs, as well as all their respective modifications, developments, updates and enhancements) are owned by Property Tree or its licensors. Customer agrees that no transfer of Property Tree’s (or its licensors’) Intellectual Property Rights occurs at any time by access or use by Customer (or its users) of the Website or Service.
15.3 Customer agrees to notify Property Tree promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights in the Website or Service and reasonably co-operate with Property Tree in relation to such infringement.
15.4 Customer agrees to notify Property Tree promptly of any unauthorised, suspected or threatened third party access to or use of the Aggregated Data, Data, the Website, or Service and to reasonably co-operate with Property Tree in relation to such unauthorised third party access or use.
16.1 Each party must not without the written consent of the other:
16.2 Clause 16.1 will not impose confidentiality obligations upon the recipient of Confidential Information where:
(a) disclosure of Confidential Information is required by law or required to respond to requests by a regulatory or judicial body;
(b) the Confidential Information is in the public domain through no fault or action of the recipient, its employees or subcontractors; or
(c) the Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.
17.2 Customer warrants to Property Tree that:
(b) the individual to whom the information relates has been made aware of the recipients’ identities, of how to contact the recipients, and of the other matters of which the recipients are required to inform that individual; and
17.3 Customer acknowledges and agrees that transmissions made by means of the Internet cannot be fully secure in all instances and Property Tree cannot guarantee that any electronic communication or data transmission made via the Website or Service (including uploading or transmitting any Data or Personal Information) will be secure, uninterrupted or delivered. Customer makes such communications and transmissions and agrees to receive electronic communications from Property Tree and other users of the Service (as applicable) at Customer’s own risk and accepts the risk of interception of such communications, transmissions and Data by third parties and of non-receipt or delayed receipt of such communications, transmissions and Data by Property Tree and other users of the Service (as applicable).
17.4 Customer consents to Property Tree, its Hosting Service Provider and their related entities and affiliates releasing Personal Information provided by Customer to third parties:
(a) in order to comply with a valid legal or government requirement such as in compliance with any law, regulation, search warrant, subpoena, court order or government order; and
18 Force Majeure
18.1 Customer acknowledges that making the Website and/or the Service available by Property Tree for access and use is dependent on a number of factors outside Property Tree’s control, for example, the telecommunication connections and infrastructure.
19.1 Customer represents and warrants to Property Tree that:
20.2 Customer is responsible for authorising any person who is given access to the Website or the Service using Customer's account and to the Data. Customer agrees that Property Tree has no obligation to provide any person access to the Website or Service through Customer's account or to the Data without Customer's authorisation. Customer is responsible for ensuring that each person authorised by Customer to access the Website and the Service through Customer’s account protects their account identification and password.
20.3 Information on the Website may or may not change from time to time. It is not promised or guaranteed to be correct, current, or complete. The Website may contain technical inaccuracies or typographical errors. Property Tree assumes no responsibility (and expressly disclaims responsibility) for updating the Website to keep information current or to ensure the accuracy or completeness of any posted information. Accordingly, Customer should confirm the accuracy and completeness of all posted information before making any decision or taking any action based on information provided on the Website.
20.4 The Website may provide links or references to third party websites or applications (Linked Sites) or display material sourced from a third party (Third Party Material). Property Tree is not responsible for and does not endorse the content of Linked Sites or Third Party Material, any use (or misuse) of information Customer may supply to or obtain from a Linked Site or any Third Party Material, or for any goods or services offered via Linked Sites or any Third Party Material. Property Tree does not warrant or represent the accuracy, utility or any other characteristic of Third Party Material or information or content appearing on any Linked Sites. Property Tree is not a party to or responsible for any transactions Customer may enter into with third parties, even if Customer learns of such parties (or uses a link to such parties) from the Website.
20.5 Property Tree makes no guarantee, representation or warranty (express or implied):
(a) that Customer’s use of the Website and/or Service will be error-free, secure, uninterrupted or compatible with the Customer’s equipment and software configurations or that Property Tree will be able to prevent third party disruptions or that Property Tree will correct all defects in the Website and/or Service;
(b) that the Website and/or Service will be fit for Customer’s or any user’s purpose; or
(c) that use of the Website and/or Service will improve the financial performance or profitability of Customer or any other party. Customer is responsible for any results obtained from use of the Website and/or Service.
20.6 Customer agrees that:
(a) the provision of, access to, and use of, the Service is on an "as is" basis and at Customer’s own risk;
(b) among other things, the operation and availability of the systems used for accessing the Service, including telecommunication services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. Property Tree is not in any way responsible for any interference or prevention of Customer’s access or use of the Service caused by these types of things;
(c) Property Tree is not Customer’s accountant, bookkeeper, real estate agent or property manager and use of the Service does not constitute the receipt of accounting, bookkeeping, real estate or property management advice. If Customer has any accounting, bookkeeping, real estate or property management questions, it should contact an appropriately qualified accountant, bookkeeper or real estate agent.
(d) it is Customer’s sole responsibility to determine that the Service meets the Customer’s needs and is suitable for the purposes for which it is used; and
(e) Customer remains solely responsible for complying with all applicable accounting, tax and other laws in connection with its access and use of the Service.
21 Limitation of liability
21.6 Without limiting Customer’s obligations to pay the Service Fee, neither party is liable to the other party for any indirect, incidental, special, punitive or consequential loss or damage, economic loss, loss of revenue, loss of business, loss of saving on overheads, loss arising from business interruption, loss of goodwill or loss of profits, loss of data or data use or loss of use of the Website and/or the Services or the inability to use the Services and/or Website even if it has been advised of the possibility of such damages or loss.
21.7 The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that:
(b) the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party.
22.1 Property Tree may without notice suspend Customer's access to the Service if:
(b) Property Tree reasonably believes that Customer's access and use of the Service will cause technical incapacity to the Service which will continue unless access or use is suspended.
22.2 Customer may not object to any delay in restoring access to the Service when a suspension is lifted. Property Tree will act promptly to restore access when it is satisfied that the reason for suspension has been removed.
(a) by either party giving the other party 30 days written notice of termination; or
(b) immediately by either party upon giving written notice to the other party, if the other party ceases to operate in the ordinary course of business, makes an assignment for the benefit of creditors or similar disposition of its assets or becomes or threatens to become subject to any form of insolvency administration, bankruptcy, liquidation, dissolution or similar proceeding;
(c) immediately by Property Tree upon giving written notice to the Customer, if Property Tree’s relationship with its Hosting Service Provider or any other third party supplier that provides software, hosting services or other technology, products or services relied on by Property Tree to provide the Service expires or terminates or such provider requires Property Tree to change the way it provides the Service or Website. In this event Property Tree will give Customer a pro rata refund of any fees paid which relate to a period after the date of termination.
(a) it must continue to comply with its obligations to pay the Service Fee during the 30 day notice period;
(b) it must pay the monthly installment of the Service Fee in full if payment falls due during the 30 day notice period; and
(c) no refund (either in total or on a pro rata basis) applies in respect of any payment of the Service Fee made during the 30 day notice period regardless of the date of termination.
24 Effect of termination
24.1 Termination does not affect any accrued rights or liabilities of either party nor does it affect any provision which is expressly or by implication intended to operate after termination.
(a) Property Tree will immediately cease providing the Service to Customer and will deny Customer access to the Service and Customer Data;
(d) Customer must immediately pay any and all outstanding invoices or any charges or fees incurred as a result of its access and use of the Service. For the avoidance of doubt, if Customer terminates this Agreement for any reason before expiry of the Minimum Term then Customer must immediately pay to Property Tree on termination the balance of the Service Fee relating to the remaining period of the Minimum Term.
25 Assignment and subcontracts
Attention: Financial Controller
PropertyTree Pty Limited
Level 6, 29-57 Christie Street
St Leonards NSW 2065
26.2 A notice is taken to be duly given and received:
(a) if delivered by hand, when delivered; or
(b) if delivered by email, when the sender receives an automatic receipt confirming delivery of the email or the recipient party confirms, by non-automated email, receipt of the notice.
“GST”, “Supply”, “Recipient”, “Tax Invoice” & “Adjustment Note” have the same meaning as in the A New Tax System (Goods & Services) Act, 1999 and includes any replacement or subsequent similar tax.
a. increase the amount payable by the Licensee or Customer (Recipient) for that Supply otherwise provided for under this Agreement by the amount of that GST; or
b. otherwise recover from the Recipient the amount of that GST.
2.1 The Recipient must pay any amount in respect of GST in the time and manner provided for the payment of amounts in relation to which the GST is payable.
2.2 If the Recipient fails to pay on the due date any amount in respect of GST, then the Recipient must pay to the Supplier upon demand any additional tax, interest, fine or penalty that is payable in respect of that amount of GST. As between the Supplier and the Recipient, the Supplier is not obliged to pay any GST or additional tax, interest, fine or penalty until the corresponding payment is received from the Recipient. This clause is without prejudice to the Supplier’s other rights and remedies
5.1 LICENCE FEES: The Licensee shall pay the ongoing Licence Fee as set out in this agreement.
5.2 The ongoing Licence Fee shall commence forty-five (45) days from the date of this agreement unless otherwise stated in this agreement.
5.3 The Licensor may increase the ongoing Licence Fee at any time by giving one month’s written notice to the Licensee.
5.4 All ongoing payments shall be made by monthly direct debit to a bank account nominated by the Licensor.
i.Onsite software support;
ii. Re-installation/reconstruction of Licensed Software, all data services and reloading of client Operating Systems;
iii. Support of computer networks, all peripheral and printer access, drive mapping, computer “lockup” and support of third party software;
iv. Training of the Licensee’s Staff by addressing issues identified as beyond software support boundaries.
v. Hardware or operator error or anything directly resulting from such within a reasonable period (generally <1 business hour) during standard Customer Support hours.
7.1 CUSTOMER SUPPORT HOURS: These are defined as normal business hours (i.e. 8:30AM through 5:30PM) on normal business days (i.e. Monday through Friday). These hours/days are impacted periodically in all Australian States and New Zealand by the observance of Local Public Holidays and other events, however all changes that affect support hours will be notified.
7.2 CUSTOMER SUPPORT BOUNDARIES: The Licensee shall be entitled to unlimited telephone software support under this Agreement, however the Licensor may require the Licensee’s staff to undergo additional training at the Licensee’s cost should the Licensor consider the Licensee is in need of training or support outside customer support boundaries.
7.3 EXCUSED PERFORMANCE: The Licensor shall not be liable for any failure to perform or delayed performance of any support obligation under this Agreement if such performance is prevented, hindered or delayed by reason of any cause beyond the reasonable control of the Licensor, including, without limitation, any labor dispute, strike, or other industrial disturbance, Act of God, flood, shortage of materials, earthquake, casualty, war, act of the public enemy, terrorism, riot, insurrection, embargo, law, blockage, action, restriction and regulation or order of any government, government agency or subdivision thereof.
10.1 LIABILITIES AND WARRANTIES: Certain legislation (including the Competition and Consumers Act 2010 as amended) has the effect of giving a customer certain rights and remedies which cannot be excluded restricted or modified by agreement. The provisions of this Agreement must therefore be read having regard to such rights to the extent that they may be applicable and if any provision or part thereof in this Agreement would (but for this paragraph) have the effect of excluding restricting or modifying such rights or remedies then such a provision or part shall not apply to the extent to which any such rights or remedies are given to the Licensee.
10.2 Subject to any rights or remedies so conferred upon the Licensee and the restrictions so imposed upon Licensor (to the extent that such rights and restrictions may be applicable) as set out in sub-clause 10.1:
i. All conditions warranties and representations on the part of Licensor whether express or implied, statutory or otherwise including without limitation all implied warranties and conditions of merchantability or fitness or description and whether collateral or antecedent hereto or otherwise
ii. All representations and agreements not expressly contained herein or incorporated herein by reference shall not be binding upon Licensor as conditions, warranties or otherwise.
iii. This Agreement and all appendices and schedules incorporated herein by reference or otherwise constitutes the whole of the Agreement and understanding between the parties with respect to the subject matter hereof and all additions and modifications to this Agreement shall be in writing and shall be signed by all parties.
As separate conditions not limiting the generality or effect of paragraph i. hereof and to the full extent permitted by law, except for any liability under the express warranty set out in sub-clause 10.4 hereof in no event shall Licensor or any of its officers, servants, agents and contractors be liable to the Licensee or to any other person for or with respect to any loss or damage (including but not limited to loss of profits or special or indirect or consequential loss or damage). Except in the case of malicious damage by Licensor, its officers, servants, agents or contractors or arising from negligence, in the last mentioned events liability shall be limited according to sub-clause 10.3
v. Without in any way limiting the generality of the foregoing Licensor shall not be liable for any defect or defects except as specifically provided for in sub-clause 10.4. hereof.
vi. The Licensee hereby agrees to indemnify the Licensor, its officers, servants, agents or contractors against any claims made against Licensor, its officers, servants, agents or contractors by any third party in respect of any such loss, damage, defect or defects.
10.3 Where a right or remedy which is not capable of exclusion, modification or restriction by agreement is conferred on the Licensee by a law referred to in sub-clause 10.1 above and that law allows the Licensor to limit its liability in relation to that right or remedy it shall be a term of this contract that the liability of the Licensor is limited in accordance with that law and where so permitted by that law the liability of the Licensor shall be limited solely to in the case of goods, any one or more of the following as the Licensor may decide: the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired; and in the case of services to any one or more of the following as the Licensor may decide: the supplying of the services again, or the payment of the cost of having the services supplied again. Nothing in this sub-clause 10.3 shall be deemed to limit the generality of the provisions of sub-clause 10.2.
10.4 The Licensor warrants it holds the copyright in and is the owner of the licensed Software, and shall indemnify and hold Licensee, its agents and employees, harmless from any loss, damage or liability for infringement of Australian Patent right or Copyright with respect to the Use of the processes and ancillary materials delivered hereunder, provided that the Licensor is notified in writing within ten (10) calendar days of any suit or claim against the Licensee, that Licensee permits the Licensor to defend, compromise or settle the said claim of infringement and gives the Licensor all available information, assistance and authority to enable the Licensor to do so, and provided that Licensee fully observes all the terms and conditions of this Agreement. The Licensor shall not be responsible for any compromise made without its consent. The Licensor’s indemnity as to Use shall not apply to any infringement arising out of Use in combination with other processes or articles where such infringement would not have occurred in the normal Use for which the Licensed Software was designed. The Licensor warrants that the Licensed Software when delivered will conform to the Licensor’s current published software description; however, Licensee acknowledges that the Licensed Software is of such complexity that it may have inherent defects and agrees that as the Licensor’s sole liability and as Licensee’s sole remedy the Licensor will provide all reasonable programming services to correct documented code errors which the Licensor’s diagnosis indicates are caused by a defect in an unaltered version of the delivered Licensed Software. This warranty extends only to the initial Licensee and is valid for a period of six (6) months from the date of execution of this Agreement. Licensee understands and agrees that whatever customer support is provided under this warranty shall be performed by the Licensor or its appointees. In no event shall the liability under the foregoing express warranties of the Licensor or any of its officers, servants, agents or contractors to the Licensee or to any other person for or with respect to any loss or damage (including but not limited to loss of profits or special or indirect or consequential loss or damage) when aggregated with any other damages claimed or recovered in respect of the products to which this Agreement relates exceed the license fee paid to the Licensor for the software in respect of which the loss or damage is recovered.
The Licensor may terminate this Licence effective upon notice thereof to Licensee if Licensee neglects or fails to perform or observe any of the terms or obligations set forth by this Agreement. In the event Licensee becomes insolvent or voluntarily or involuntarily bankrupt, or if a liquidator, receiver, assignee or other liquidating officer is appointed for all or substantially all of the business of Licensee or if Licensee makes an assignment for the benefit of creditors, then the Licensor may immediately terminate this Licence and in no event shall this Licence or any rights or privileges hereunder be an asset of Licensee under any bankruptcy, insolvency or reorganisation proceedings. Since unauthorised Use or transfer of the Licensed Software or any information contained therein will diminish substantially the value to the Licensor, or its licensees of the trade secrets and proprietary properties that are the subject of this licence, and other licences, if the Licensee breaches any of its obligations with respect to limited Use or nondisclosure of the Licensed Software, or if such a breach is likely to occur, the Licensor shall be entitled to equitable relief (including orders for specific performance and injunction) as well as money damages. The rights and remedies of the Licensor set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. Within thirty (30) days after the Licensee has discontinued the Use of any Licensed Software or within ten (10) days after the Licensor has terminated any licence, the Licensee will certify, in writing, to the Licensor, that the original and all copies in whole or in part of the discontinued or terminated Licensed Software have been destroyed, except that, upon prior written authorisation from the Licensor, the Licensee may retain an inactive copy for archive purposes only.
13.1 NOTICES: All notices, requests, demands and other communications under this Agreement shall, unless otherwise provided herein, be in writing and shall be deemed to have been duly given on the date of service if served personally, or on the third day after mailing to the address of the relevant party set forth on the first page of this Agreement.