1.1 These Terms and Conditions (Terms) are between Geneva Private Wealth Pty Ltd ABN 52 092 013 931 t/a Top 3 Real Estate Agents, its successors and assignees (referred to as “we”, “us” or “our”) and the user of our Website (referred to as “you” or “your”), and collectively the Parties.
1.2 You are requesting the use of services provided via our Website (Services). You accept these Terms by submitting the online form (Form) or contacting us by any other means to request our Services and providing us with the information required by us to provide the Services to you.
1.3 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions. Continued use of our Services indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not order services from us if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you should not use our Services.
2. PROVISION OF YOUR INFORMATION
2.1 To use our Services, you will be required to provide your personal information and information relating to your property (Property) by submitting the Form.
2.2 Basic information will be required when submitting the Form. You are required to provide certain information including your full name, address, contact number and email address.
2.3 You agree to provide accurate, current and complete information when submitting the Form and to update such information to keep it accurate, current and complete. We reserve the right to suspend your access to our Website and Services if any information provided proves to be inaccurate, not current or incomplete.
3.1 We shall assess the information provided by you in the Form in order to make suggestions as to real estate agents (Agents), who in our opinion, meet the requisite skills, knowledge and ability to effective facilitate the sale or rental of your Property.
3.2 We will provide you with the outcome of our research based on the information provided by you in the Form (Report), such analysis and the information compiled is at our sole discretion.
3.3 After you receive the Report, you may, at your own discretion, ask us to introduce you to the Agents in order for you to interview the Agents and potentially contract with an Agent of your choosing in respect of facilitating the sale or rental of your Property.
3.4 We accept no liability in regards to the resulting contract or agreement between you and the Agent.
3.5 We agree to perform the Services with due care and skill.
3.6 We may provide the Services to you using our employees, contractors and third party providers, and they are included in these Terms.
3.7 Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.
4.1 You acknowledge and agree that we will provide the information provided in your Form to various Agents and will request such relevant information from such Agents in respect of facilitating the sale or rental of your Property.
4.2 You acknowledge and agree that our selection process in respect of the Agents presented to you is based on our opinion only, based on the research we undertake and, accordingly, we have no responsibility, liability nor obligation in respect of your selection of an Agent in respect of the sale or rental of your Property.
4.3 We make no warranty or representation, express or implied, as to the fitness for purpose or suitability of the Agent for the sale or rental of your Property. The information we provide is for your reference purposes only to assist you making your own selection.
5.1 We do not charge you any fees for our Services. You acknowledge that we are paid by the Agent or agency at which the Agent is employed or contracted (Agency). We receive a percentage of the commission (usually 20%) received by the Agent following the sale or rental of your Property using one of the Agents introduced to you by us.
5.2 The Agent or Agency is obligated to make payment of our fee, only if they sell your property and after they are paid. This is paid by the Agent or Agency as they receive a qualified lead that has resulted in a sale. For the avoidance of doubt, you have no liability toward us in regards to any payments owed to us by the Agent or Agency.
6. YOUR OBLIGATIONS AND WARRANTIES
6.1 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
6.2 You warrant that throughout the term of these Terms that:
(a) You have the authority to sell or rent the Property;
(b) there are no legal restrictions preventing you from agreeing to these Terms;
(c) you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
(d) the information you provide to us is true, correct and complete;
(e) Agents will be granted access to the Property at a mutually agreed date and time;
(f) you will not infringe any third party rights in working with us and receiving the Services;
(g) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
(h) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions; and
(i) you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you.
7. OUR INTELLECTUAL PROPERTY
7.1 Our Website contains material which is owned by or licensed to us and is protected by Australian and international laws, including but not limited to the trademarks, trade names, software, content, design, images, graphics, appearance, layout and look of our Website. We own the copyright which subsists in all creative and literary works displayed on the Website.
7.2 You agree that, as between you and us, we own all intellectual property rights in the Website, and that nothing in these Terms constitutes a transfer of any intellectual property rights. Your use of the Website does not grant you a licence to, or act as a right to, use any of the intellectual property, whether registered or unregistered, displayed on the Website without the express written permission of the owner.
7.3 You must not breach any copyright or intellectual property rights connected with the Website. This includes but is not limited to:
(a) altering or modifying any of the code or the material on the Website;
(b) causing any of the material on the Website to be framed or embedded in another website; or
(c) creating derivative works from the content of the Website.
8. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
8.1 You agree to provide information including any Intellectual Property to us to enable us to provide the Services. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
8.2 If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Services to you;
(b) irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
(c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
9. CONFIDENTIAL INFORMATION
9.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary, Third Party Suppliers); to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
9.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
9.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
9.4 The obligations under this clause will survive termination of these Terms.
10. FEEDBACK AND DISPUTE RESOLUTION
10.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
10.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
10.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
11.1 You may terminate your use of our Services at any time prior to receiving our Report by providing us with written notice.
11.2 We may terminate these Terms immediately and cancel the provision of Services at our sole discretion, if:
(a) we consider that a request for the Service is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust; or
(d) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
11.3 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
11.4 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
12. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
12.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms.
12.2 Services: If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are able to exclude liability; our total liability for loss or damage you suffer or incur from the Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
12.3 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services where caused by your delay in response, or supply of incomplete or incorrect information.
12.4 Referral: On request by you, we may provide you with contact details of third party specialists including Agents and Agencies. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
12.5 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
12.6 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services being unavailable; and
(c) any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
12.7 Limitation: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
12.8 Disclaimer: You acknowledge and agree that:
(a) we are not a party to any agreement that is entered into between you and an Agency and/or Agent;
(b) we have no control over the conduct of our Agencies, Agents and any other users of our Website and Services, and we disclaim all liability in this regard;
(c) we do not guarantee that Agents will attend the Property as agreed with you, that you will find a desirable Agency to assist in the sale of your Property, or that an Agent will be successful in selling or renting your Property;
(d) we accept no responsibility and will not be liable for any loss or damage that you and/or your Property may suffer as a result of the actions or omissions of the Agencies and/or the Agents.
12.9 This clause will survive termination of these Terms.
13.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms; and
(c) any misuse of the Services from or by you, your employees, contractors or agents.
13.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
13.3 The obligations under this clause will survive termination of these Terms.
14.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
14.2 Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
14.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
14.4 GST: If and when applicable, GST payable on the Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
14.5 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
14.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
14.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
14.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
14.9 Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address and/or email address you provided when creating an Account. Our address and email address is set out at the end of these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
14.10 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
14.11 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
15.1 Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
15.2 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
15.3 Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
15.4 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
15.5 Website means the website, available at top3realestateagents.com.au.
Geneva Private Wealth Pty Ltd ABN 52 092 013 931
t/a Top 3 Real Estate Agents
Level 1, 246 Oxford St,
Paddington NSW 2021
Last update: 27 April 2020