Terms and Conditions for homesales Products and Services –
Real Estate Agents
These are the Terms and Conditions on which DOMUS.COM.AU (ABN 98 427 283 711):
a. permits your agency to list on the website located at www.domus.com.au (Website) residential properties for sale; and
b. will endeavor to deliver you leads in respect of the sale of those properties (together, the Service).
1. Your use of the Service
a. Your access to and use of the Service is governed by an Agreement, which is comprised of:
• these Terms and Conditions;
• the Agent sign up form;
• the general Terms and Conditions of Use for the Website http://www.domus.com.au/content.aspx?St=true&pageID=7;
• the Domus Privacy Policy http://www.domus.com.au/content.aspx?St=true&pageID=4; and
• any other document provided to you by Domus expressed to form part of the Agreement between you and Domus.
b. Your use of the Service signifies your agreement to abide by the terms and conditions set out in each of the above listed documents.
2. Your duties and obligations
a. In using the Service, you must:
i. ensure that all information, illustrations, photographs and other material you upload or submit to the Website in your use of the Service (Submitted Materials) are provided in the form required by homesales from time to time;
ii. only submit material to Domus by a method pre-approved by Domus (such as via an authorised XML provider or via the Domus agent administration section);
iii. observe all relevant laws, and any guidelines or directions issued by your relevant Real Estate Institute;
iv. ensure that Submitted Materials are not defamatory, offensive, misleading or capable of causing Domus exposure to any legal liability;
v. comply with any relevant Domus advertising policy;
vi. provide Domus with such assistance as is reasonably necessary to provide you with the Service;
vii. notify Domus in writing if the you change any information required by Domus to provide the Service;
viii. maintain secrecy and confidentiality of all Domus account information, including but not limited to user ID and password information required by you to access the Service and immediately change any account information if the security of the account has been compromised in any way. You are responsible for all transactions entered under your account, including your user ID or password;
ix. provide and update from time to time all hardware and software necessary to use the Service;
x. train your personnel in relation to the use of the Service and your obligations for using the Service;
xi. pay any telecommunication charges incurred by you in the use of the Service; and
xii. assess the accuracy, reliability and completeness of any information obtained using the Service.
b. You must not:
i. use the Service for any purpose other the uses intended by Domus;
ii. do anything which impairs the lawful use of the Service by any person;
iii. provide to any person other than your employees or contractors any homesales account information, including user ID or password necessary to access and use the Service;
iv. distribute, rent, lease, sell, charge, sub-licence, assign, transfer or otherwise deal with the Service;
v. introduce or use any device, software or routine that interferes or attempts to interfere with the operation of the Service including but not limited to any device intended to copy any information published by Domus including any listing; or
vi. create or otherwise produce either directly or indirectly or wholly or partly any database which is substantially comprised of any information published by Domus.
c. You warrant to Domus that:
i. you remain at all times a licensed real estate agent;
ii. you are authorised by the owner of each property listed by you to list the property for sale on the Website;
iii. all information provided by you to Domus, whether for the purposes of publication or not, is: accurate and complies with all relevant laws; does not infringe any third parties’ intellectual property rights; is not illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years; is not misleading or deceptive or likely to mislead or deceive; or not comprised of anything which may adversely reflect on any homesales Website or any website on which the information is published; and
iv. you will comply with all applicable laws in your use of the Service, including all laws in relation to handling and use of personal information.
d. You acknowledge that it is your sole responsibility to ensure homesales has your correct contact details, including but not limited to street and / or postal address and email address for delivery of notices, notifications and email enquiries from the Website.
e. You must promptly notify Domus if you undergo a change of control (meaning a change of ownership in the controlling interest as defined by the Corporations Act) and provide any further information required by Domus as a result of such a change of control. If you fail to notify Domus of a change of control, or fail to comply with Domus’ directions in relation to a change of control, you will remain liable for all future charges incurred on your Domus account and Domus reserves the right to terminate all agreements with you and remove all Submitted Materials from the Website.
3. Specific terms relating to listings
a. In using the Service, you must:
i. only list residential properties for sale – the listing of other types of properties (for example, commercial properties) or other items (for example, cars or personal items) is prohibited;
ii. only list properties which are presently available for sale and which you or your agency have been authorised to market for sale;
iii. not include any contact information in the text of a listing;
iv. ensure that any photographs or illustrations submitted in respect of a property, accurately represent the property in question and are free from borders, watermarks, agent location or contact details;
v. accurately indicate the location of the property being listed – Domus reserves the right not to publish an advertisement which does not include accurate details of the property location;
vi. immediately remove any properties which are no longer for sale (for example properties which have been sold or withdrawn from the market);
vii. only list each property for sale once on the Service; and
viii. provide to homesales in respect of each property at least the minimum required fields for publication (as set out in Schedule 1 to these Terms and Conditions).
b. Domus may choose not to publish, or may remove once published, any listings which do not comply with the above requirements.
c. Domus may, from time to time, set guidelines for how property listings will be returned in searches on the Domus Websites. The current guidelines are set out in Schedule 2 to these Terms and Conditions. Domus reserves the right to amend these guidelines at any time.
4. Specific terms relating to leads
a. You acknowledge and agree that:
i. Domus provides no warranties in relation to the number of leads (meaning enquiries for further information submitted by users of the Website) you may receive; and
ii. while Domus will use its best endeavours to provide accurate leads, it has no control over the identity or bona fides of any enquirer.
b. You must:
i. provide a valid email address in respect of each listing to which leads should be sent by Domus;
ii. ensure that all leads are handled by a suitably trained person in a professional and expeditious manner; and
iii. not sell, assign or otherwise provide whether electronically or otherwise any lead (or information derived from a lead) to any person.
c. You acknowledge that:
i. Domus will use its best endeavours to deliver all leads to the nominated email address, or where this is not available, an alternate email address;
ii. Domus will not be liable for any delay or failure to deliver leads to you which is caused by any technical or technological fault or failure; and
iii. in order to accurately record the number of leads delivered for each listing, it is necessary for homesales to have absolute control over the contact details published by you, and you will not attempt to include any unauthorized contact details in any listing.
5. Licence to use Submitted Materials and monitoring of content
a. By uploading or otherwise submitting any materials to the Website or in your use of the Service, you automatically grant (or warrant that the owner of such material expressly grants) to Domus a world-wide, perpetual, royalty-free, irrevocable, transferable and sub-licensable licence to use, reproduce, adapt, modify, communicate, display, perform, store and distribute those Submitted Materials. Such licence shall apply with respect to any form, media or technology now known or later developed.
b. Without limiting the foregoing, you agree that Submitted Materials may be used by Domus for purposes including (without limitation) marketing, research and development of goods and services.
c. You warrant that:
i. Domus’ use of any Submitted Material contributed by you will not infringe the intellectual property rights (including the moral rights) of any third party or breach any obligations of confidence or any other law or regulation relating to the Submitted Materials; and
ii. in relation to moral rights, you have obtained all necessary consents which will allow homesales to perform all or any acts or omissions which, but for the consent, would be considered an infringement of the author’s moral rights under the Copyright Act 1968 (Cth)
d. Domus reserves the right to amend, edit, block or immediately remove Submitted Material without notice to you that it considers is or may be, in its sole discretion:
i. abusive, defamatory or obscene;
ii. fraudulent, deceptive or misleading;
iii. in violation of copyright, trade mark or other intellectual property rights of another person;
iv. in violation of any law or regulation;
v. in breach of these Terms and Conditions or any of the other documents listed in clause 1a of these Terms and Conditions; or
vi. offensive or otherwise unacceptable to homesales.
e. Notwithstanding the above, homesales is under no obligation to monitor Submitted Material to ensure it complies with any law, guideline or requirements or for general suitability for publication.
6. Access and delivery
a. Whilst Domus uses its best endeavors to provide the Service to you, Domus does not represent or warrant that:
i. you or users of the Website will have continuous access to the Website;
ii. the Service will be complete or free from all viruses, defects or errors and you acknowledge that the existence of any defects or errors does not constitute a breach of any agreement between you and Domus; or
iii. any information supplied or accessed using the Service is correct and complete or sufficient for your intended use.
b. Domus will not be liable in the event that the Website is unavailable for any reason, including but not limited to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunication supplies.
c. Domus does not guarantee the delivery or security of communications delivered over the Internet (including emails).
7. Additional terms in relation to homesales’ rights
a. Domus retains sole editorial control (including: watermarking and placement) in relation to all listings published on the Website.
b. Domus will not be liable for error, misplacement, amendment, omission or failure to publish any listing.
c. Domus reserves the right to change the functionality of the Website at any time without prior written notice.
d. Domus may from time to time modify, enhance or upgrade any the Service. For the avoidance of doubt, Domus may cease to provide the Service (or part thereof) on 30 days notice or such shorter period as is reasonably required by Domus.
e. The Service does not include: back up services; customisation; training; attendance at your premises; or correction of errors or defects, including those caused by:
i. faulty equipment or hardware provided by the you;
ii. any negligent act or omission by you; or
iii. any event beyond homesales control.
8. Specific terms relating to the use of the Internet
a. Domus is not responsible for the Internet or any telecommunication infrastructures required to access and use the Service.
b. Domus does not and cannot provide any warranty that the Internet, any website or any telecommunications infrastructure (including but not limited to email and SMS) will be continuously accessible. For the avoidance of doubt, subject to clause 9, homesales will not be liable in the event that:
i. the Internet, any website or any telecommunications infrastructure (including email and/or SMS) is unavailable (in whole or part) for any reason whatsoever; or
ii. any message (including any email and/or SMS ) or file is transmitted by or to you using the Service and is not received in a timely manner or at all.
9. Homesales’ liability to you
a. Other than as set out in this clause 9, and to the extent permitted by law, all implied and express warranties in respect of any goods or services provided by homesales are hereby excluded.
b. Domus will only be liable to you:
i. where the law implies a term into this Agreement which cannot be excluded and Domus breaches that term. Provided that, where the breach relates to goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so homesales liability is limited, at its option, to replacing, repairing or re-supplying the relevant goods or re-supplying the relevant services; or
ii. if the claim arises from or in connection with any deliberate breach of this Agreement or fraud by Domus but subject always to clause 9d.
c. Subject to clause 9b, and except to the extent that liability cannot be excluded, Domus will not be liable to you for claims arising out of or in connection with this Agreement whether arising in contract, tort (including negligence), indemnity, strict liability, breach of warranty or statute.
d. In no event will Domus be liable to you for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
e. For the purposes of this clause, the term Domus will mean Domus , its officers, employees, contractors and agents, whether individually or collectively.
f. This clause will survive the termination of this Agreement.
10. You indemnify homesales
a. You release and indemnify Domus , its employees and agents against all actions, claims and demands (including the cost of defending or setting any actions, claims and demands) arising out of:
i. a breach of this Agreement by you; or
ii. any deliberate, unlawful or negligent act or omission by you.
b. This clause will survive the termination of this Agreement.
11. Suspension of the Service
Domus may suspend or restrict access to the Service on such terms as Domus determines, without notice if any event listed in clause 12a occurs or during the notice period referred to in 12aiii.
12. Termination of this agreement
a. Domus may terminate this Agreement by immediate written notice to you if you:
i. breach any provision of this Agreement that is not capable of remedy;
ii. breach any provision of this Agreement that is capable of remedy and you fail to remedy such breach with 14 days’ written notice;
iii. fail to notify homesales that a change of control has occurred or you fail to undertake any actions required by homesales following a change of control;
iv. assign or purport to assign this Agreement; or
v. you are or become insolvent.
b. You may terminate this Agreement on 30 days’ written notice to homesales.
c. Domus may terminate this Agreement in its absolute discretion on 30 days’ written notice to you.
d. On the termination of this Agreement:
i. you must return or destroy (at Domus’ option) all homesales intellectual property in your possession or control including but not limited to any application files; and
ii. both Domus and you will continue to comply with all obligations expressed herein to continue to apply after the expiration or termination of this Agreement.
e. Termination of this Agreement will not prejudice any accrued rights or liabilities of a party.
13. Intellectual property rights
a. All intellectual property rights in the Service and all information generated, compiled, arranged, stored or otherwise developed by Domus, including any listing, are vested in homesales and there is no assignment of Domus’ intellectual property rights to you.
b. Domus acknowledges that information you provide to Domus remains your property.
14. Amendments to Terms and Conditions
Domus may amend these Terms and Conditions at any time upon 30 days notice in writing to you. Notice may be delivered by post, email or publication of the amended Terms and Conditions on the Website. Your continued use of the Service signifies your agreement to be bound by the amended Terms and Conditions.
15. Fees
There are currently no fees for your use of the Service. Domus reserves the rights to introduce fees in the future, at which time you may choose whether to continue your use of the Service.
16. Other legal matters
a. Force Majeure: Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to force majeure.
b. Further Acts: Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by another party to do so.
c. Assignment: You must not assign, transfer, subcontract or otherwise dispose of, in whole or in part your rights or obligations under this Agreement, without the prior written consent of Domus. Domus may at any time assign the whole or any part of this Agreement without your consent.
d. Subcontractors: Domus may subcontract the performance of this Agreement or any part thereof.
e. Provisions Severable: If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from this Agreement.
f. Waiver: Failure by any party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise. A waiver must be in writing signed by the party giving the waiver.
g. Notice: Where in this Agreement homesales is required to give notice in writing, Domus may give the same by:
(a) posting the notice on the homesales Website;
(b) emailing the notice to the email address last provided to homesales by you; or
(c) posting the notice to the postal or street address last provided to homesales by you.
h. Governing Law: This Agreement is governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts in that State.
Schedule 1
Required fields for listings appearing on homesales Websites
The following information is the minimum information which you must submit to homesales in respect of each listing for publication on the Domus Websites:
1. Street address
2. Property type (eg house, apartment)
3. Title
4. Description
5. Number of bedrooms
6. Number of bathrooms
7. Number of carspaces
8. Images (minimum of 1)
9. Display price (may be numeric value or text, eg POA)
10. Status (eg current, sold, withdrawn)
Where you do not provide or authorise Domus to publish all of the above information in a listing, Domus may not publish the listing on the Domus Websites.
Schedule 2
Guidelines for search results on homesales Websites
1. Where a listing for a property does not include a numeric value in the price field, the property will not be returned in searches conducted on the basis of price.
2. Where values are provided for a price search range for a property and the range varies more that 10% from the value provided for the display price of the property, the property will not be returned in searches conducted on the basis of price.