Terms and Conditions
The following terms and conditions (the "Terms and Conditions") govern your use of this web site, and any content made available from or through this web site, including any subdomains thereof (the "Web Site"). The Web Site is made available by Red Hot International Pty Ltd. (or "we" or "us"). BY USING THE WEB SITE, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF THE WEB SITE. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Web Site.
1. Definitions and Interpretations
1.1 In this agreement unless the context otherwise requires, the following words will bear the meaning set out hereunder:
“Company” means Red Hot International Pty Ltd ABN 91 141 594 265
“Confidential Information” has the meaning set forth in clause 14.
“Contract” means this Agreement which consists of these General Terms & Conditions provided to the Customer separately in either hard or soft copy.
“Customer” or “You” and “Your” refer to the person accessing and paying for the Website who has agreed to the Terms and Conditions.
“Effective Date” is the start of the Agreement when the Terms and Conditions have been agreed to and payment made.
“Excluded Information” means Confidential Information which:
(a) is in or becomes part of the public domain other than through breach of this Contract or an obligation of confidence owed to the Company;
(b) the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by the Company (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(c) the Customer acquires from a source other than the Company where such source is entitled to disclose it.
“GST” has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).
“Initial Period” is the 12 month period following the “Effective Date”.
“Insolvent” means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves.
“Law” means common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).
“Party” and “Parties” means the Company and the Customer.
“Renewal Period” has the meaning set forth in clause 2.
“Suburb” means area as defined by Australia Post.
1.2 The headings in this Contract are for convenience of reference only and will not affect the interpretation hereof. The words “include” and “including” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind. A clause or Schedule is a reference to a clause or Schedule to this Contract. Words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders.
2. Duration
2.1 This Contract will commence on the Effective Date and will continue for the “Initial Period"; thereafter, this Contract will automatically renew for subsequent one (1) year renewal periods each, “Renewal Period” unless a Party gives the other Party notice of its intent to not renew at least ninety (90) days prior to the end of the Initial Period or any Renewal Period. Notwithstanding the foregoing, this Contract may be terminated earlier in accordance with clause 9.
3. License and Restrictions
3.1 Subject to the terms of this Contract and the Customer’s performance of its obligations, the Company hereby grants to the Customer a non-exclusive, non-transferable limited license during the Initial Period and each Renewal Period (if any) to access and use the Web Site only in respect of Real Property located in the Suburb and listed with the Customer.
3.1(a) The Customer agrees that it will only access and use the Web site and Confidential Information to enable it to list property of sellers and introduce buyers to such property only if such Real Property is located in the Suburb and further agrees that it will not permit or allow any other person access to or use of the Web Site and Confidential Information for any purpose whatsover.
3.2 The Customer acknowledges and agrees to use the Web Site solely for the purpose for which they are intended, and in accordance with all Laws. Except as expressly permitted under this Contract or to the extent permitted by Law, the Customer and its employees and representatives will not, or encourage any person or entity to:
(a) decompile, disassemble or otherwise reverse engineer all or any portion of the Web Site, including any source code, object code, algorithms, methods or techniques used or embodied therein;
(b) modify or create any derivative works based upon the Web Site;
(c) remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Web Site;
(d) incorporate any portion of the Web Site into any other materials, products or services that are not intended for the Customer’s internal business use; or
(f) use, or offer to use, the Web Site for or in connection with any direct marketing activities.
4. Access
4.1 The Customer acknowledges and agrees that, in the event that the Company provides the Customer with any identification numbers and/or passwords, it:
(a) bears sole responsibility for protecting all identification numbers and passwords;
(b) will not disclose or provide any and all identification numbers and passwords to any person other than any buyer;
(c) will remain fully responsible and liable for any authorised or unauthorised use of any identification numbers and passwords;
(d) will for security purposes change such identification and passwords periodically or as directed by the Company from time to time.
4.2 The Customer will be responsible for obtaining access to the Web Site, and for any and all costs and expenses in connection with accessing and using the Web Site, including Internet service provider fees, telecommunications fees, and the cost of any and all equipment (including hardware and software) used by the Customer in connection with its access and use of the Web Site as permitted hereunder. The Customer acknowledges that the Company will have no obligation to assist the Customer in using or accessing the Web Site except as expressly provided in this Contract. Further, the Company will not be liable for any delay, defect, deficiency and/or loss of service arising out of or connected with the Web Site or any loss caused by or or resulting from any of the following:
(a) equipment, data or services supplied by the customer or any third party; or
(b) any telecommunications organisation equipment or services (including any speeds or capabilities of such equipment or services) or any requirements of the telecommunications authority;
(c) any circumstances whatsoever beyond the control of the Company.
4.3 The Company will not provide the Customer with any software whatsoever.
4.4 Subject to clause 7, the Company will maintain the Web Site, and perform network, hardware or service maintenance services or upgrades, which may require the Web Site to be non-accessible for a period of time. The Company will endeavour to perform such services or upgrades during typically low usage periods. Under no circumstances will the Company be liable to the Customer whether in tort, contract or otherwise for any loss or damage suffered by the Customer as a result of the Customer being unable to access the Web Site during any particular peri
4.5 The Company reserves the right to change or refine the features and functionality of the Web Site provided that at all times the Company agrees to ensure that the Web Site retains the basic functional features that it has made available to the Customer as at the Effective Date.
5. Fee
5.1 The Customer will pay the Company the fees set forth in the Web Site in Australian currency. All such fees, when paid, are non-refundable, even if the Customer stops using the Web Site for any reason.
5.2 All fees are GST exclusive. If provision of the Web Site under this Contract is subject to GST, the Customer must pay to the Company an additional amount equal to the relevant fee multiplied by the applicable GST rate. Such additional amount is payable at the same time as the related fee.
5.3 The Company may at its discretion increase the fees for any renewal period, by providing the Customer with written notice of its intention to do so at least sixty (60) days prior to the end of the Initial Period or the then current Renewal Period. Notwithstanding clause 2, upon receiving a notice of a fee increase from the Company, the Customer will have the right to elect to terminate this Contract at the end of the Initial Period or then current Renewal Period, as applicable, by providing the Company with written notice of its intention to do so within thirty (30) days of its receipt of the Company’s written notice of fee increase.
5.4 Fees will be payable only by MasterCard or Visa card. If at any time a payment on your card is declined we will send you a notice by email provided that if at any time you are in arears by more than one monthly payment for whatever cause the Company may terminate this Agreement and the provisions of clause 9 shall apply.
Customers wishing to pay monthly will have the fees automatically deducted from their cards. If your credit card is declined for payment, we will send you an e-mail notice. If your credit card is declined for more than one monthly payment, your account could be terminated without further notice. Your data, if you wish to recover it, will be held in escrow until payment in full is received.
6. Property Rights; Company Indemnification
6.1 The Customer acknowledges and agrees that, as between the Company and the Customer, the Company or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Web Site, the Data, and confidential information including any and all creations, inventions and intellectual property rights contained or embodied within the Web Site, the Data and confidential information . The Customer agrees that they acquire no rights in or to the Web Site, the Data and confidential information provided pursuant to this Contract except for the limited license set forth in clause 3.1, and that they will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Company’s and its service providers’ ownership of the Web Site, the Data and confidential information, or the creations, inventions and intellectual property rights contained or embodied within the Web Site and confidential information . The Customer agrees that they will not make copies (other than for back-up or disaster recovery purposes) or derivative works of the Web Site, the Data and confidential information . All other uses of the Web Site and the Data not expressly addressed in this Contract are strictly prohibited.
6.2 The Company will defend, or at its option settle, any third party claim or suit brought against the Customer on the basis that the Customer’s use of the Web Site as permitted under this Contract, infringes any of such party’s Australian patents or copyrights, and will pay any final judgment entered against the Customer or any settlement of such claim or suit. The Company’s foregoing obligations are subject to the following conditions:
(a) the Customer promptly notify the Company in writing of any allegation of infringement, and fully cooperate with the Company, at the Company’s reasonable cost, in the defence or settlement of such claim or suit;
(b) the Customer make no admissions;
(c) the Customer at the Company’s request allow the Company or its assignee to solely conduct and/or settle all negotiations and litigations; and
(d) any costs incurred and recovered in such negotiations and litigation will be to the account of the Company and/or its assignee.
6.3 The Company’s obligations under clause 6.2:
(a) will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim based upon use of any Web Site in combination with any equipment, services, data, algorithms, models, indices, tools and/or Web Site not supplied by the Company or its service providers, if the alleged infringement would not have occurred but for such use;
6.4 If at any time all or any part of the Web Site or the Data is, or in the Company’s opinion may become, subject of any claim or suit for any infringement, the Company may at its own expense and option modify or replace that part affected or Data so that it is non-infringing, or obtain for the Customer the right to continue using the affected Web Site or Data. If neither of foregoing options is in the Company’s opinion commercially reasonable, the Company will have the right to terminate this Contract with immediate effect after which time the Customer’s use of the affected part or Data is at the Customer’s sole risk.
7. Usage
Without limiting any of the other terms of this Contract:
7.1 The Customer will follow all reasonable instructions the Company gives from time to time with regard to the use of the Web Site and Data. The Customer will permit the Company at all reasonable times to check that the Web Site and the Data are being used in accordance with the terms of this Contract, and for such purposes the Customer shall maintain complete and accurate records of the Customer’s use of the Web Site and the Data. The Customer expressly acknowledges that the Company has entered into various licensing agreements for ongoing use of data with various data suppliers and as such the Company has undertaken certain contractual obligations. To assist the Company in meeting these obligations the Customer agrees to comply with and/or accept responsibility for all of the Company’s obligations expressed or implied in such supplier agreements.
7.2 The Customer acknowledges and agrees that the Company’s ability to provide the Web Site and the Data is subject to its agreements with third party suppliers,
(a) which agreements may expire or terminate or
(b) which suppliers may not provide the services, Web Site or data as provided under such agreements, and that in such circumstances the Company may not be able to, and will have no obligation to, provide some or all of the Web Site or the Data, either on a timely basis or otherwise. The Company does not verify the accuracy or completeness of any data supplied by any third party.
7.3 If any use is made of the Web Site or the Data by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to the Company’s other rights and remedies the Customer will immediately be liable to pay to the Company an amount equal to fees to be consistent with the rest of the Agreement which such person or entity would have been obliged to pay had the Company granted a licence to the unauthorised user at the beginning of the period of the authorised use.
7.4 The Customer will be fully responsible for any act or omission of any of its employees or agents.
7.5 The Company will not provide any Data to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.
7.6 The Company and its service providers reserve the right to suspend or terminate the Customer’s access to the Data in the event of:
(a) any fee is not paid as and when it falls due;
(b) the Company or its service providers reasonably believe that the Customer has used or disclosed the Data or Confidential Information breach of this Contract;
(c) the Customer has materially breached this Contract; or
(d) an event of force majeure occurs that affects the Company’s ability to provide the Products.
8. Confidentiality
8.1 No Confidential Information may be disclosed by the Customer to any person or entity except:
(a) employees of the Customer requiring the information for the purposes of this Contract who:
(i) are aware of the confidentiality obligations imposed in this clause 8; and
(ii) have entered into written confidentiality agreements with the Customer which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 8,
(b) to the extent the Customer is required to do so by Law; or
(c) to the extent the Customer is required to do so in connection with legal proceedings relating to this Contract.
(d) Notwithstanding clauses 8.1 and 8.2, the Customer may disclose parts of the Data, or conclusions or summaries of information based on the Data, provided that the Customer have first obtained the Company’s prior written consent for such disclosure and the Customer gives the Company credit as the source for the underlying data in a manner reasonably instructed by the Company.
8.2 The Customer must not use Confidential Information except for the purpose of exercising their rights or performing their obligations under this Contract.
8.3 Clauses 8.1 and 8.2 do not apply to excluded information.
8.4 The customer will do all things and execute all documents necessary to prevent and/or remedy any breach of the Customer's confidentiality obligations or unauthorised disclosure of confidential information provided that the Customer pays all and any legal costs associated with such prevention or remedy including any legal costs, fees and other expenses incurred by the Company and otherwise subject to the exclusion and indemnity clauses referred to below.
8.5 The Customer will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.
8.6 The Customer may not make press or other announcements or releases relating to this Contract and the transactions that are the subject of this Contract without the Company’s prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by Law or by a stock exchange with which the Customer is listed.
8.7 Except as otherwise agreed or duly required by Law or any regulatory authority, no Party will disclose the terms of this Contract to any person or entity other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
8.8 The Customer acknowledge that due to the unique nature of the Confidential Information, any breach by the Customer of their obligations under this clause 8 would result in irreparable harm to the Company and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Company and its service providers will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Company and its service providers may have at Law.
9. Termination
9.1 Either Party has the right to terminate this Contract, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:
(a) the other Party becomes insolvent; or, if an individual becomes bankrupt or unable to pay his or her debts as and when they fall due;
(b) the other Party commits a breach of this Contract, and
(i) the breach is material and not capable of being cured, or
(ii) if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) of being notified in writing of the breach by the Party giving the notice.
9.2 The Company will have the right to terminate this Contract immediately upon written notice to the Customer in the event that Customer uses or discloses any Confidential Information, Product or Product Data other than expressly permitted under this Contract.
9.3 Following the Initial Period, the Customer will have the right to terminate this Contract, with or without cause, upon giving at least ninety (90) days prior written notice to the Company.
9.4 The Company has the right to terminate this Contract with or without upon giving 90 days prior notice in writing to the Customer at any time.
9.5 The Company has the right to remove from the Web Site any Data or other information or logos or branding or sub domains of the Customer without any compensation being paid whatsoever to the Customer.
9.6 In the event that this Contract is terminated, all of the Customer’s rights to use the Web Site will immediately terminate, and the Customer will at their expense promptly return, or at the Company’s election destroy, any copies of Confidential Information that are either in the Customer’s possession or under the Customer’s control.
9.7 Any delay or failure to enforce any term of this agreement by Red Hot International Pty Limited will not be deemed to be a waiver of any term of this agreement. Any waiver by Red hot International Pty Limited of a term of this agreement must be in writing and will not be deemed to be a waiver of subsequent breaches of the same or of a different kind.
9.8 The following clauses will survive any termination of this Contract: 1; 4.2; 5; 6; 7.1; 7.3; 7.4; 8; 9; 10; 11; 12; 13
10. Exclusion of Liabilities and Indemnities
10.1 In addition to any liability to Red Hot International Pty Limited arising out of the terms and conditions of this agreement, you idemnify Red Hot International Pty Limited (as trustee for the third party) for any loss, damage or liability (or whatever kind, however and whenever arising and including legal costs and expenses) suffered by Red Hot International Pty Limited or any third party (whether directly or indirectly) arising from damage or injury to the person or property of any third party arising out of or in connection with any conduct (including negligence, breach of contract, termination of the agreement and conduct not authorised or contemplated by this agreement) of you and any person engaged by it. This indemnity shall apply in respect of any claim, suit, demand or action under statute, contract, tort (including but not limited to negligence), in equity, estoppel or any other cause of action, for compensation, restitution, penalty or any other remedy. This indemnity continues to operate after the termination of this agreement, and applies to loss, damage or liability incurred both during and after the operation of the agreement, provided such loss, damage or liability from the conduct undertaken by you during the Term of this agreement or within 6 months of its termination.
10.2 Other than as expressly provided in this agreement, Red Hot International Pty Limited, its officers, employees and agents will not be liable for any loss, damage or liability (or whatever kind, however or whenever arising and including legal costs and expenses) suffered by you (whether directly or indirectly) arising out of any conduct Red Hot International Pty Limited of (including termination of this agreement and conduct not authorised or contemplated by this agreement). This exclusion shall apply in respect of any claim, suit, demand or action under statute, contract, tort, in equity, estoppel or any other cause of action, for compensation, restitution, penalty or any other remedy, other than negligence where the loss, damage or liability arises from the negligence of Red Hot International Pty Limited or its officers or agents. This exclusion continues to operate after the termination of this agreement, and applies to loss, damage or liability both during and after the operation of the agreement.
10.3 To the extent that Red Hot International Pty Limited can exclude any warranties or conditions which might otherwise be implied by any competent legislation, it excludes all implied warranties.
11.Privacy Policy
The Company is dedicated to keeping your details private. Any information, we collect in relation to the Customer, is kept strictly secured. We do not pass on/sell/swap any of your personal details with anyone. The Company uses cookies to allow you to login to your account, Cookies sent to your computer from Company only last while you’re browsing our website. We do not store persistent cookies on your computer. Whenever you use our web site, or any other web site, the computer on which the web pages are stored (the Web server) needs to know the network address of your computer so that it can send the requested web pages to your Internet browser. The unique network address of your computer is called its "IP address," and is sent automatically each time you access any Internet site. From a computer's IP address, it is possible to determine the general geographic location of that computer, but otherwise it is anonymous.
The Company does not keep a record of the IP addresses from which users access our site except where you have specifically provided us with information about yourself, in which case we also record your IP address for security purposes.
12. Security Policy
12.1 You agree to allow the Company to provide any financial information you have been requested to provide to the Company to a secure server using the latest secure socket layer incription technology.
13. Miscellaneous
13.1 No right or obligation under this Contract will be deemed to be waived except by notice in writing signed by the Party to be bound by any obligation.
13.2 This Contract will be governed by and construed in accordance with the Laws in force in the State or Territory of your registered address. Each Party submits to the non-exclusive jurisdiction of the courts of that place.
13.3 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions on this Contract will be binding unless in writing signed by each Party.
13.4 The Customer may not assign this Contract or enter into any sub-licence of this Contract, without the Company’s written consent. The Company may assign this Contract or any part of this Contract, or any right or obligation under this Contract, without notice to or the consent of the Customer.
13.5 The Customer warrants that it has not relied on any representation made by the Company which has not been expressly stated in this Contract or upon any representations, terms, conditions or information contained in any document including any catalogue or other material produced or made available by the Company.
13.6 The Company will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of the Company (whether happening in the Commonwealth of Australia or elsewhere, including acts of God, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data).
13.7 Nothing contained or implied in this Contract constitutes one Party the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.
13.8 The rights and remedies provided in this Contract are in addition to other rights and remedies given by Law independently of this Contract.
13.9 This Contract constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
14. Confidentiality
14.1 Each of the parties acknowledge that each other party (Owner) will disclose various information relating to its business , products and services or such information may otherwise become known by another party to this Deed (Business Information), which is and will always remain the exclusive property of the Owner.
14.2 Each party will regard the Business Information as confidential information and will not, without the prior written consent of the Owner or unless required to by law, disclose or allow the disclosure of any of the Business Information to any person except its authorised representatives and employees who have need of any of the Business Information for the purposes of assisting in the performance of its obligations or exercising any of its rights pursuant to this Deed or the Constitution of the Company.
14.3 To ensure the obligations of confidentiality set out in this clause are compiled with, each party agrees as follows:
(a) neither to use nor circulate the Business Information within its organisation or among its affiliates or authorised representatives except to the extent necessary to perform its obligations or exercise its rights pursuant to this Deed or the Constitution of the Company;
(b) not to copy the Business Information in whole or part except as permitted pursuant to this Deed;
(c) not to alter or remove any proprietory rights or copyright notice or other identification which indicates an ownership interest in any part of the Business Information;
(d) to notify the Owner promptly in writing of the existance of any circumstances surrounding any unauthorised knowledge, possession or use of the Business Information or any part thereof by any person;
(e) to take any actions deemed necessary or desirable to ensure continued confidentiality and protection of the Business Information and to prevent access thereto or use thereof by any unauthorised person;
(f) to establish specific procedures designed to meet its obligations pursuant to this clause, including but not limited to the execution of such non-disclosure agreements by its contractors or other authorised representatives who must have access to the Business Information as the Owner may reasonably require; and
(g) to return promptly to the Owner of to provide satisfactory evidence as to the destruction of all documents, media and other property containing any of the Business Information belonging to the Owner upon request by the Owner.
