This website and the Realtair Sell Platform are operated by Realtair Office Pty Limited (ACN 619 539 374) which is a wholly owned subsidiary of Realtair Pty Limited (ACN 608 058 859).
These Terms of Use were last updated on 20th January 2022. These Terms of Use apply to the access and use of the Realtair Sell Platform by the Customer.
1.1 In these Terms of Use the following definitions apply:
Account means an account to access and use the Realtair Sell Platform, whether as an Agent, Auctioneer, Bidder, Follower, Offeror or in any other capacity.
Agent means an individual, corporation, partnership or agency that accesses or uses the Realtair Sell Platform for the purposes of listing Properties and otherwise acting as or carrying on the business or activities of a real estate agent.
Agent Licence means any licence, certification, consent, authorisation, accreditation, approval or registration which a person is required to obtain and maintain by law, regulation or code (including applicable Auction and Sale Rules) in order to act as or otherwise carry on the business or activities of a real estate agent.
Aggregated Data means any information or data derived or aggregated from the Customer Data which has Personal Information removed from it.
Auction and Sale Rules means all laws, regulations, conditions, codes and rules which apply to the advertisement for sale, offer to sell, offer to purchase, sale or purchase (whether by private treaty, Auction or otherwise) of a Property (including the conduct of the Auction) based on the location of the Property and in respect of which compliance is mandatory, as updated, modified, amended or replaced from time to time.
Auction has the same meaning in respect of a Property as set out in the Auction and Sale Rules that apply to that Property and otherwise means the sale of a Property, other than by private treaty, via a process whereby bids are submitted for the purchase of the Property and any bidder may be the purchaser of the Property, as facilitated or made available via the Realtair Sell Platform.
Auctioneer has the same meaning in respect of a Property as set out in the Auction and Sale Rules that apply to that Property and otherwise means the person (who may also be an Agent) that conducts the Auction of the Property.
Auctioneer Licence means any licence, certification, consent, authorisation, accreditation, approval or registration which a person is required to obtain and maintain by law, regulation or code (including applicable Auction and Sales Rules) in order to conduct an Auction or act as or otherwise carry on the business or activities of an Auctioneer.
Bidder means a person or entity that registers an Account for the purposes of bidding to purchase a Property at Auction via the use of the Live Auction or Timed Auction Features of the Realtair Sell Platform, whether or not that person or entity subsequently submits a bid on any Property via the use of the Live Auction or Timed Auction Features or any other part of the Realtair Sell Platform (and including any additional bidder registered by the primary bidder in respect of a particular Property). For the avoidance of doubt, “Bidder” includes a person or entity that bids to purchase a Property at Auction on behalf of or under the instructions of the Account holder as an authorised representative in accordance with applicable Auction and Sale Rules, as the context requires.
Communications means all communications, messages, materials and content in any form sent by the Customer or Realtair Sell via use of the Realtair Sell Platform including, without limitation, emails, short message service (SMS) communications, text messages, Electronic Messages (as defined by the Spam Act 2003 (Cth)) and Commercial Electronic Messages (as defined by the Spam Act 2003 (Cth)).
Confidential Information of a party is information of a party, its Related Bodies Corporate 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 any person who accesses or uses the Website or Realtair Sell Platform; any person on whose behalf or under whose authorisation the Website or Realtair Sell Platform is accessed or used by another person; and any person or entity that creates an Account, including Agents, Auctioneers, Bidders, Offerors, Followers and their Related Bodies Corporate.
Customer Data means all data and content provided by the Customer to Realtair Sell (including when creating an Account) or which is input into the Realtair Sell Platform through the Customer's Account when using the Realtair Sell Platform, including any text, copy, images, graphics, multimedia content, details of the Customer, Property details, Property owners, vendor details, purchaser details, Property sales information, financial information, bank account information, debit card and account details, credit card and account details, names, email addresses, residential addresses, phone numbers, contact details, copies and details of drivers licences or other forms of photo identification, any other information or documentation as may otherwise be reasonably required to verify the identity of the Customer or other persons in the manner and to the extent required by applicable Auction and Sale Rules and other related data (which may include Personal Information of the Customer or other persons).
Dummy Bid has the same meaning as given under applicable Auction and Sale Rules and otherwise includes any illegitimate or non-genuine bid to purchase a Property via Auction, including for the purposes of misleading other Bidders as to the level of interest in purchasing a Property or artificially inflating the purchase price of a Property.
Feature means each of the following features, functions or components of the Realtair Sell Platform respectively and Features means all of the following features, functions components of the Realtair Sell Platform together: (a) Live Auction; (b) Timed Auction; (c) Make an Offer; (d) Timed Sale, and any other features, functions or components that Realtair Sell may provide from time to time.
Fees means the fees or rates payable by the Customer for access to and use of the Realtair Sell Platform as may be varied from time to time in accordance with these Terms of Use.
Follower means a person or entity that registers an Account for the purposes of obtaining information about or monitoring the status of Properties, offers and bids made in respect of Properties or Auctions of Properties via the use of any Feature of the Realtair Sell Platform that permits the person or entity to do so.
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, pandemics, governmental regulations, policies or actions enacted or taken subsequent to the Customer's registration for use of the Realtair Sell Platform, or any labour, power, 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 Amazon Web Services and any other person or entity Realtair Sell may engage from time to time to provide data hosting and storage services in connection with the Realtair Sell Platform and Customer Data and to provide the serving infrastructure which operates under the direction of Realtair Sell.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trademarks, know-how, confidential information, patents, inventions, know-how and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Live Auction means the feature of the Realtair Sell Platform which streams live Auctions and permits Customers to conduct, follow and bid at Auctions (as applicable) in real time, as may be updated or varied from time to time.
Make an Offer means the feature of the Realtair Sell Platform which permits Offerors to submit to Agents offers to purchase Property and which permits Agents to accept such offers, in both cases subject to formal exchange of contracts for the purchase and sale of the Property, prior to or separately from an Auction of the Property, as may be updated or varied from time to time.
Metadata means data relating to the provision and use of the Realtair Sell Platform, excluding Customer Data and Personal Information.
Offeror means a person or entity that registers an Account for the purposes of submitting an offer to purchase a Property via the use of the Make an Offer Feature or Timed Sale Feature of the Realtair Sell Platform, whether or not that person or entity subsequently submits an offer to purchase any Property via the use of the Make an Offer Feature or Timed Sale Feature or any other part of the Realtair Sell Platform.
Personal Information has the meaning given to that expression in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Property means real property of any kind listed or advertised on the Website or via the Realtair Sell Platform.
Realtair Sell means Realtair Office Pty Limited (ACN 619 539 374).
Realtair Sell Platform means the online software platform comprising the Features accessible through the Website, as updated from time to time.
Related Body Corporate has the same meaning as given to that term in s50 of the Corporations Act 2001 (Cth).
Spam Laws means all spam laws and regulations applicable to the Customer and Realtair Sell, including the Spam Act 2003 (Cth) in respect of relevant Communications with an Australian link and equivalent laws in other countries.
Successful Bid means the legitimate bid above the reserve price accepted by the Vendor as at the close of the Auction.
Successful Bidder means the Bidder who submitted the Successful Bid or to whom the property is otherwise sold as at the close of the Auction.
Support Service Providers includes Realtair Sell employees and contractors engaged by Realtair Sell to provide support, maintenance, development and similar services in respect of the Realtair Sell Platform.
Terms of Use means the agreement between Realtair Sell and the Customer for the Customer's access to and use of the Realtair Sell Platform, which comprises these terms (including as may be updated from time to time pursuant to clause 2), any other special conditions or terms provided separately by Realtair Sell and agreed with the Customer in connection with the Customer's access and use of the Realtair Sell Platform and Realtair Sell's Privacy Policy as published on the Website from time to time.
Timed Auction means the feature of the Realtair Sell Platform referred to on the Website as “Timed Auction” which provides for the timed Auction of a Property over a specified period of time as notified on the Website and which permits Bidders to submit bids to purchase the Property only during and up until expiry of that specified period of time, as may be updated or varied from time to time.
Timed Sale means the feature of the Realtair Sell Platform which during a limited time determined by the Agent permits Offerors to submit to Agents offers to purchase Property by private treaty; publishes such offers on the Realtair Sell Platform so that they are publicly available; and permits Agents or Vendors to accept offers, in all cases subject to formal exchange of contracts for the purchase and sale of the Property, as may be updated or varied from time to time.
Vendor means the owner and/or seller of a Property.
Website means the Realtair Sell website that has a home page currently accessible via URL http://buy.realtair.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 Realtair Sell Platform is provided or accessed.
1.2 In the interpretation of these Terms of Use, the following provisions apply unless the context otherwise requires:
(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 any rule, regulation or law includes any updates or modifications to that rule, regulation or law;
(d) 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 any party to these Terms of Use or any other document or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns; and
(f) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms of Use or any part of it.
2.1 By creating an Account or accessing or using the Realtair Sell Platform, the Customer agrees to be bound by the most current version of these Terms of Use and Realtair Sell's Privacy Policy as published on the Website.
2.2 The Customer may not use the Realtair Sell Platform and may not accept these Terms of Use if it is not of a legal age or capacity to form a binding contract with Realtair Sell.
2.3 The Customer may print or save a local copy of these Terms of Use for its internal records only. The Customer acknowledges that Realtair Sell may vary or update its Terms of Use from time to time by giving the Customer notice of the variation or update. The notice will specify the date from which the variation or update takes effect.
2.4 The party whose details have been entered during the Account registration process for the Realtair Sell Platform enters into these Terms of Use on its own behalf and as agent for any other entity which at any time falls within the definition of Customer. By creating an Account, accessing and using the Realtair Sell Platform on behalf of a body corporate and by accepting these Terms of Use and Realtair Sell's Privacy Policy (as updated from time to time) on behalf of a body corporate, Customer warrants that it is duly authorised to represent the body corporate and its Related Bodies Corporate and bind them to these Terms of Use and Realtair Sell's Privacy Policy. Despite anything else in these Terms of Use, to the extent that the Realtair Sell Platform is accessed or used by any of Customer's Related Bodies Corporate and such Related Bodies Corporate are not bound by these Terms of Use, Customer must ensure that its Related Bodies Corporate comply with these Terms of Use and must procure that its Related Bodies Corporate make the same warranties and grant to Realtair Sell the same licences and rights as are made and granted by Customer as set out in these Terms of Use.
3.1 The Website and Realtair Sell Platform facilitate the offer for sale and sale of Property by others, including by:
(a) permitting Auctioneers and Agents to post information about and list Properties for sale on the Website;
(b) providing Auctioneers and Agents with tools to communicate with Bidders and Offerors, obtain information required to register Bidders and to take offers and bids to purchase Property from Bidders and Offerors;
(c) providing an online forum for Auctioneers to conduct Auctions in respect of Properties;
(d) permitting registered Bidders or Offerors to submit to Agents and Auctioneers offers or bids to purchase Properties and to view details of offers or bids submitted by other Bidders or Offerors;
(e) providing an online forum for all Customers (including Followers) to monitor the status of Properties; and
(f) providing an online forum for communication and interaction between Customers in connection with the offer for sale, sale and purchase of Properties.
3.2 Realtair Sell is not a licensed real estate agent and does not act as an Agent or Auctioneer or conduct Auctions in respect of any Properties. The Realtair Sell Platform and Website is merely offered to facilitate the offer for sale and sale of Property, including Auctions, by others as set out above. For the avoidance of doubt, Realtair Sell does not represent Vendors and will not deal or communicate directly with Vendors. Realtair Sell will only deal or communicate with Agents authorised to represent or act on behalf of Vendors.
3.3 Subject to Realtair Sell's acceptance of the Customer's application to register an Account for the Realtair Sell Platform and the Customer's compliance with these Terms of Use and payment of all Fees payable by the Customer (as applicable), Realtair Sell grants the Customer a limited, non-exclusive, non-transferable right to access and use the Website and the Realtair Sell Platform only for the Customer's own use and in accordance with the terms set out in these Terms of Use and any other requirements Realtair Sell may specify from time to time.
4.1 Bidders, Offerors and Followers may create an Account at no cost. Agents and Auctioneers may create and maintain an Account subject to payment of applicable Fees.
4.2 Bidders and Offerors must not create an Account, bid on Properties or submit an offer to purchase any Properties unless they are legally entitled to bid on, purchase and own the Properties listed on the Website.
4.3 Each Customer must create their own password at the time of creating their Account.
4.4 Each Customer acknowledges that it will be required to provide Realtair Sell with certain Personal Information (which may include a name, email, address, phone number, copy of a drivers licence or other photo identification reasonably required to verify the identity of the Customer) to create an Account and to access and use the Realtair Sell Platform.
4.5 The Customer must:
(a) ensure that they keep their username and password confidential and do not disclose it to any other person (and in order to improve the security of the Customer's Account, update their password from time to time);
(b) ensure their Account details are correct, complete and kept up to date at all times; and
(c) take all necessary steps to prevent unauthorised access to the Customer's Account and immediately notify Realtair Sell of any unauthorised use of the Customer's password or Account or any other breach of security.
4.6 The Customer is responsible for all activities that occur under its Account, including all Auction bids, offers to purchase Properties, offers to sell Properties, acceptance of offers to purchase or sell Properties and all communications of any kind made via its Account. The Customer indemnifies, and will defend and hold harmless, Realtair Sell, its Related Bodies Corporate, 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 person's access to and use of the Realtair Sell Platform via the Customer's Account or login.
4.7 Despite anything else in these Terms of Use, Realtair Sell reserves the right to refuse the Customer's request to create an Account or the Customer's access to the Realtair Sell Platform for any reason at Realtair Sell's discretion, including if it reasonably believes that a Bidder or Offeror is not legally entitled to bid on, offer to purchase, purchase or own the Properties listed on the Website.
4.8 Access to the Website and Realtair Sell Platform may only be available through use of compatible devices which meet specific system or software requirements specified by Realtair Sell or on the Website from time to time. Realtair Sell gives no warranty or guarantee that access to or use of the Website or Realtair Sell Platform will be available to all devices and the Customer is solely responsible for ensuring that any device it uses meets system, software or other requirements specified by Realtair Sell or on the Website from time to time.
5.1 The Customer must only use the Realtair Sell Platform for lawful purposes and in accordance with these Terms of Use, all applicable Auction and Sale Rules, any directions given by Realtair Sell and all local and foreign laws and regulations. The Customer must not use the Realtair Sell Platform as a service bureau.
5.2 The Customer must not, nor cause or permit a third party to:
(a) access and/or use the Website or any of the Realtair Sell Platform 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 Realtair Sell Platform by Realtair Sell to any other Customers or persons;
(b) reverse engineer, reverse assemble, reverse compile, copy, duplicate, modify, make derivative works of or re-sell all or part of the Realtair Sell Platform (or any of Realtair Sell's Intellectual Property Rights in the Realtair Sell Platform);
(c) enter into any transaction relating to access or use of the Realtair Sell Platform with, or disclose any part of the Website (or Customer's Account information or access credentials) and/or Realtair Sell Platform (or any of Realtair Sell's Intellectual Property Rights in the Realtair Sell Platform) to, a party other than Realtair Sell, without the written consent of Realtair Sell; or
(d) gain, attempt to gain or assist or request any person to gain unauthorised access to the Website, Customer Data and/or Realtair Sell Platform, computer systems or networks connected to the Realtair Sell Platform, including through hacking, password mining or any other means.
5.3 The Customer warrants, and must ensure that, Customer Data and any other content, information, materials, documentation or communications created, published, communicated or distributed by the Customer, its employees, staff or other persons engaged by, authorised by or representing the Customer (“Customer Personnel”) through access and use of the Realtair Sell Platform or Website, and the use of such Customer Data, content, information, materials, documentation or communications, does not:
(a) contravene any law, statute, ordinance, regulation or industry code;
(b) contain any misleading or deceptive statements or information;
(c) infringe any person's Intellectual Property Rights or other rights; or
(d) contain any undesirable material, including material which is offensive or illegal (including but not limited to defamatory, libellous or potentially defamatory or libellous material).
5.4 The Customer acknowledges that neither Realtair Sell nor its Related Bodies Corporate, shareholders, affiliates, representatives, agents, licensors, suppliers or business partners verify, endorse, approve or have any responsibility for the content of Customer Data and any other information, materials, documentation or communications created, published or distributed by the Customer or Customer Personnel through access and use of the Realtair Sell Platform or Website. The Customer must not in any way represent to any person (including its customers) that such Customer Data, content, information, materials, documentation or communications are verified, endorsed, supported or approved by Realtair Sell or any of Realtair Sell's Related Bodies Corporate, shareholders, affiliates, representatives, agents, licensors, suppliers or business partners.
5.5 The Realtair Sell Platform and Website may include information and materials uploaded by other users. Such information and materials are not verified or approved by Realtair Sell. The views expressed by other users on the Realtair Sell Platform or Website do not necessarily represent the views or values of Realtair Sell. The Customer acknowledges that it may be exposed to content that it may find offensive, indecent or objectionable and that, in this respect, the use of the Realtair Sell Platform and Website is at Customer's own risk. The Customer acknowledges and agrees that:
(a) it is responsible for its interactions with other users of the Realtair Sell Platform and Website;
(b) Realtair Sell makes no representations or warranties as to the conduct of other users of the Realtair Sell Platform or Website; and
(c) Realtair Sell will not be in any way liable for the conduct of any other users of the Realtair Sell Platform or Website.
5.6 Realtair Sell reserves the right to delete from the Realtair Sell Platform and Website any Customer Data, information, materials, documentation, communications or other data that are illegal or which Realtair Sell in its sole discretion deems unsuitable, insulting, inflammatory, inappropriate, degrading or objectionable, or that is provided in breach of the warranties made in these Terms of Use.
5.7 The Customer indemnifies, and will defend and hold harmless, Realtair Sell, its Related Bodies Corporate, 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 claim by a third party related to any Customer Data, the disclosure, transfer or exchange of any Customer Data by Realtair Sell to or with any Support Services Provider or Hosting Services Provider, the Customer's content or any of its users' use of the Website and/or Realtair Sell Platform where such use is not authorised by these Terms of Use.
5.8 Realtair Sell may vary the scope of the Realtair Sell Platform, including by adding, removing or changing Features, functionality and components of the Realtair Sell Platform, at any time and from time to time at its discretion.
5.9 Property listings may be withdrawn or removed from the Website by or with the approval of Realtair Sell at any time prior to commencement of an Auction in respect of the Property.
6.1 All Customers must comply with the Auction and Sales Rules when accessing or using the Website or Realtair Sell Platform for any purpose.
6.2 Agents and Auctioneers acknowledge and agree that it is their sole responsibility to be aware of, understand and comply with all Auction and Sale Rules when accessing or using the Website or any function or part of the Realtair Sell Platform in connection with advertising, listing, offering to sell or selling any Property (whether by private treaty or Auction) and to satisfy themselves that their use of the Website and Realtair Sell Platform will be compliant with all applicable Auction and Sale Rules. Realtair Sell makes no warranty, guarantee or representation, and Agents and Auctioneers do not rely on any warranty, guarantee or representation from Realtair Sell, that use of the Website or Realtair Sell Platform will ensure compliance with all applicable Auction and Sale Rules. Without limitation and unless expressly required otherwise by the Auction and Sale Rules applicable to a particular Property, Agents and Auctioneers must in respect of each Property:
(a) include: (i) their personal name (if an individual); (ii) their business name (if operating under a registered business name); (iii) their company name (if an incorporated entity); their partnership name (if operating as a member of a partnership); (iv) their business address; (v) their contact details; and (vi) details (including number) of their relevant Auctioneer Licence or Agent Licence, in all listings or advertisements relating to the Property on the Website;
(b) include all other information, details and notifications in all listings or advertisements relating the Property as may be required by the applicable Auction and Sale Rules;
(c) ensure that conditions of sale, conditions of auction, Vendor statements, Bidder guides and all other notices, guides, statements, conditions, documents, rules, codes or information prescribed by the Auction and Sale Rules are displayed, made publicly available, brought to the attention of the public and remain accessible for inspection (including to Followers, registered or prospective Bidders or any person attending or watching an Auction) in advance of and during any Auction in the manner and format (including all details) and as, or as otherwise, required by the applicable Auction and Sale Rules;
(d) ensure that all Bidders are properly registered, allocated a number or other identifier and are recorded (including their allocated number or other identifier) in any register of Bidders as and in the form required by the applicable Auction and Sale Rules before permitting or accepting any bid from the Bidders at Auction;
(e) ensure that they maintain all records as required by the applicable Auction and Sale Rules, in the format and including all information as may be required; and
(f) only accept or record bids at Auction from registered Bidders that clearly identify themselves by the number or other identifier allocated to them and recorded in the Bidders register and only after acknowledging the number or identifier or making any other prescribed statements in respect of the bid as and to the extent required by the applicable Auction and Sale Rules.
6.3 Agents acknowledge that the Auction and Sale Rules may require certain steps, activities, obligations and requirements to be undertaken and met before advertisement or listing of a Property. Agents must not, and warrant that they will not, advertise or list a Property via the Website or Realtair Sell Platform until all such activities, obligations and requirements in respect of the Property are undertaken and met.
6.4 Auctioneers acknowledge that the Auction and Sale Rules may require certain steps, activities, obligations and requirements to be undertaken and met before commencement of an Auction. Auctioneers must not, and warrant that they will not, commence an Auction via Live Auction until all such activities, obligations and requirements are undertaken and met.
7.1 Auctioneers warrant that:
(a) they have obtained and will maintain all Auctioneer Licences as required for them to conduct an Auction or act as or otherwise carry on the business or activities of an Auctioneer via use of the Website or Realtair Sell Platform;
(b) all activities, actions and conduct undertaken by the Auctioneer through its access and use of the Website and Realtair Sell Platform are covered and permitted by the Auctioneer Licences obtained and maintained by the Auctioneer and will not place the Auctioneer in breach of any Auctioneer Licences.
7.2 Auctioneers must, and warrant that they will, at all times comply with the terms and conditions of all Auctioneer Licences held and maintained by them.
7.3 Auctioneers must immediately notify Realtair Sell of the expiry of, or if they cease to hold or maintain for any reason, any Auctioneer Licences required for the Auctioneer to conduct an Auction or act as or otherwise carry on the business or activities of an Auctioneer via use of the Website or Realtair Sell Platform.
7.4 Auctioneers must not permit any person that does not hold or maintain a current Auctioneer Licence to access and use the Auctioneer's Account for the purposes of acting as or otherwise carry on the business or activities of an Auctioneer in respect of any Property via the Auctioneer's Account.
7.5 Realtair Sell may cancel or suspend, at its discretion, an Auctioneer's Account or the Auctioneer's access to the Realtair Sell Platform in the event of expiry or cessation of any Auctioneer Licences previously held by the Auctioneer. If the Auctioneer's Account or access is suspended, Realtair Sell will only reactivate the Account or access upon the Auctioneer providing evidence that it holds and maintains all required Auctioneer Licences to the reasonable satisfaction of Realtair Sell.
7.1 Agents warrant that:
(a) they have obtained and will maintain all Agent Licences as required for the Agent to act as or otherwise carry on the business or activities of an Agent via use of the Website or Realtair Sell Platform;
(b) all activities, actions and conduct undertaken by the Agent through its access and use of the Website and Realtair Sell Platform are covered and permitted by the Agent Licences obtained and maintained by the Agent and will not place the Agent in breach of any Agent Licences;
(c) they are duly appointed by and authorised to act on behalf of the Vendors in respect of each Property listed by the Agent on the Website, including to have carriage of the sale of the Property (whether by private treaty or auction) and to use the Realtair Sell Platform and Website in connection with the Property.
8.2 Agents must, and warrant that they will, at all times comply with the terms and conditions of all Agent Licences held and maintained by them.
8.3 Agents must immediately notify Realtair Sell of the expiry of, or if they cease to hold or maintain for any reason, any Agent Licences required for the Agent to act as or otherwise carry on the business or activities of an Agent via use of the Website or Realtair Sell Platform.
8.4 Agents must not permit any person that does not hold or maintain a current Agent Licence to access and use the Agent's Account for the purposes of acting as or otherwise carry on the business or activities of an Agent in respect of any Property via the Agent's Account.
8.5 Realtair Sell may cancel or suspend, at its discretion, an Agent's Account or the Agent's access to the Realtair Sell Platform in the event of expiry or cessation of any Agent Licences previously held by the Agent. If the Agent's Account or access is suspended, Realtair Sell will only reactivate the Account or access upon the Agent providing evidence that it holds and maintains all required Agent Licences to the reasonable satisfaction of Realtair Sell.
8.6 Agents must provide to all registered Bidders prior to each Auction a contact number for the Agent or an Agent's representative who will be available to take calls from Bidders, answer any questions or communicate or enter bids made by the Bidder to the Auctioneer during the Auction (if permitted by applicable Auction and Sale Rules and subject to all prescribed authorisations being enacted as between the Bidder and the Agent or Agent's representative).
9.1 The terms of this clause 9 apply to Auctions conducted via Live Auction and Timed Auction unless otherwise specified.
9.2 Auctions must be conducted by the Auctioneer in accordance with the applicable Auction and Sale Rules. An Auction must not be conducted via the Realtair Sell Platform unless it is conducted by an Auctioneer that holds a current Auctioneer Licence as required to conduct the Auction.
9.3 The Auctioneer will be the sole arbitrator of the Auction process. The Auctioneer may reject or accept any bid submitted by a Bidder for any reason at the Auctioneer's discretion. Permitted bidding increments are solely determined by the Auctioneer.
9.4 The Auctioneer may submit Vendor bids if permitted by and in accordance with applicable Auction and Sale Rules.
9.5 The Auctioneer may pause an Auction of a Property and suspend further bidding on that Property for the duration of the pause if permitted by and in accordance with the Auction and Sale Rules that apply to that Property.
9.6 The Property will be deemed to be on the market only after the value of legitimate accepted bids have reached or exceeded the Vendor's reserve price or otherwise at the discretion of the Vendor if there is no reserve price under applicable Auction and Sale Rules. The Vendor may change its reserve price for a Property at any time before or during an Auction. The Property will be passed in and the Auction will be concluded without any sale of the Property if legitimate accepted bids do not reach or exceed the Vendor's reserve price or minimum price required by the Vendor.
9.7 Bidders must ensure they are aware of and comply with all Auction and Sale Rules that apply to Auctions attended or accessed by Bidders via the Realtair Sell Platform.
9.8 The date and time for Auctions (whether conducted via Live Auction or Timed Auction) will be specified on the Website. However, Auction dates and times may change and Agents, Auctioneers and Realtair Sell respectively reserve the right to cancel or delay the start time of Auctions. Any cancellations or changes to Auction dates or times will be updated on the Website as soon as practicable. Bidders and Followers should visit the Website and Realtair Sell Platform regularly prior to the advertised date and time of an Auction to verify if there has been any cancellation or change to the date or time of the Auction. Realtair Sell is under no obligation to separately notify Bidders or Followers of any cancellations or changes to Auction dates or times.
9.9 The date, time and parameters for Auctions conducted via Timed Auction will be determined by the Agent for the Property. For the purposes of an Auction conducted via Timed Auction, the Auction date will be the date the Successful Bid is made.
9.10 The proposed contract terms, terms of sale or auction terms for a particular Property may change before or during the Auction. The Agent and Auctioneer are responsible for notifying all such changes to Bidders before or during the Auction and for maintaining and updating any relevant information or documentation relating to the Property.
9.11 Bidders cannot bid at an Auction, and will not be permitted to submit any bids via Realtair Sell, unless they have registered to bid in accordance with the applicable Auction and Sale Rules. Bidders acknowledge that under applicable Auction and Sale Rules in some jurisdictions they may not be permitted to:
(a) bid at an Auction unless they have registered to bid before commencement of the Auction; and/or
(b) register to bid after commencement of the Auction.
It is the Bidder's sole responsibility to register to bid before commencement of an Auction if it wishes to ensure that it is permitted to bid at the Auction.
9.12 Bidders may authorise a representative to submit bids on the Bidder's behalf by signing and submitting in advance of the Auction and via the Realtair Sell Platform the relevant authority and documents in accordance with applicable Auction and Sale Rules and otherwise in the formats reasonably required by Realtair Sell, the Agent and the Auctioneer.
9.13 If a registered Bidder wishes to have the option of making a telephone bid via the Auctioneer, Agent or the Agent's representative during an Auction and such option is available under applicable Auction and Sale Rules, then the Bidder must sign all documents and take all steps necessary to authorise the Auctioneer, Agent or the Agent's representative for that purpose before the Auction and authorises the Auctioneer, Agent or the Agent's representative to bid on the Bidder's behalf.
9.14 Realtair Sell may provide additional functionality via the Realtair Sell Platform, such as allocating to each Bidder a unique code or reference number, to assist Auctioneers, Agents or Agent representatives to verify the identity of any Bidder that contacts the Agent or Auctioneer by telephone or other means separate from the Realtair Sell Platform. Realtair Sell makes no representation, warranty or guarantee that such functionality is adequate to ensure that Auctioneers, Agents or Agent representatives comply with obligations to identify Bidders to the extent required under applicable Auction and Sale Rules and Auctioneers and Agents acknowledge that it is their sole responsibility to ensure that they and their representatives verify the identity of all Bidders to the extent required by and in compliance with applicable Auction and Sale Rules.
9.15 Registration to bid at one Auction does not permit the Bidder to bid at any other Auction. Bidders must separately register to bid at each Auction respectively.
9.16 Bidders acknowledge that in order to register to bid at an Auction and fully utilise the Realtair Sell Platform they will be required to provide (including by uploading via the Realtair Sell Platform), and they agree to provide, to Realtair Sell, Agents and Auctioneers certain information and documentation (including Personal Information) as is reasonably required for Realtair Sell, the Agent or the Auctioneer to verify the identity of the Bidder. Such information and documentation may include, without limitation, the Bidder's full name, email address, residential address, phone number, copy and details of the Bidder's drivers licence or other photo identification reasonably acceptable to Realtair Sell, the Agent or Auctioneer or any other information or documentation as may otherwise be reasonably required to verify the identity of the Bidder in the manner and to the extent required by applicable Auction and Sale Rules. Bidders consent to Realtair Sell, Agents and Auctioneers collecting, storing, disclosing, using, transmitting and reproducing such information and documentation as may be reasonably necessary to register the Bidder to bid at Auctions, register an Account for the Bidder, comply with applicable Auction and Sale Rules and as may otherwise be reasonably necessary to provide all Features of the Realtair Sell Platform to Bidders.
9.17 A Bidder's request to register to bid for an Auction may be refused for any reason by the Auctioneer at their discretion.
9.18 Bids made for Auctions conducted via Timed Auction can only be withdrawn if permitted by applicable Auction and Sale Rules and only with the approval of the Auctioneer or Agent.
9.19 Bidders acknowledge that Dummy Bids may be prohibited under applicable Auction and Sale Rules and regardless agree not to submit any Dummy Bids. Bidders may only submit a bid at an Auction if they are acting in good faith and have a genuine intention to purchase the property for the amount of the bid. By placing a bid, the Bidder warrants that if the bid is the Successful Bid then the Bidder is willing and able to, and will pay, the amount of the Successful Bid to the Vendor for the purchase of the Property.
9.20 Realtair Sell may immediately suspend or terminate a Bidder's or Follower's access to an Auction (whether conducted via Live Auction or Timed Auction) if the Bidder or Follower breaches or fails to comply with these Terms of Use or the Auction and Sale Rules (as applicable).
10.1 Customers acknowledge that transmissions made by means of the Internet and Internet connectivity generally may be unreliable, interrupted, disrupted or fail for various reasons and that their access to an Auction via the Realtair Sell Platform may be interrupted, disrupted or may fail at any time before or during an Auction or that live streaming of any Auction may be interrupted, disrupted, disabled or delayed at any point. As a result, Realtair Sell cannot guarantee and does not represent or warrant that the Customer's access to any Auction via the Realtair Sell Platform will be reliable, uninterrupted, continuous or error-free or that there will not be any delay in respect of live streaming of Auctions via the Realtair Sell Platform. The Customer therefore accesses and participates in Auctions via the Realtair Sell Platform at its own risk and accepts the risk of interruptions, disruptions, connection failures, lags and delays in respect of its access to Auctions via the Realtair Sell Platform and the potential risk that the Customer may be prevented from making a bid or purchasing a Property via the Realtair Sell Platform as a result of such interruptions, disruptions, connection failures, lags or delays.
10.2 Customers should take all reasonable steps available to minimise the risks of and potential consequences arising from interruptions, disruptions, connection failures, lags and delays in access to Auctions via the Realtair Sell Platform. In particular and without limitation, Bidders should:
(a) ensure that they continue to refresh the Website page during the course of the Auction – noting that delays or lags may be a result of delays in the Website page refreshing on the Bidder's system or device;
(b) have alternative options available to submit bids via means other than directly through the Realtair Sell Platform to the extent permitted by applicable Auction and Sale Rules, which may include:
(i) arranging for an authorised representative to be in a position to submit bids (either online or at the Auction location) on the Bidder's behalf if needed – the Bidder should sign and submit the required authority and documents in advance of the Auction for that purpose;
(ii) adding and registering an additional bidder via the Realtair Sell Platform to allow the additional bidder to make bids via the Realtair Sell Platform if required; or
(iii) arranging to have the option available to make a telephone bid via the Agent or the Agent's representative during the Auction if needed.
11.1 Offerors must provide all information and documentation required by the Realtair Sell Platform in order to submit an offer to purchase a Property via Make an Offer or Timed Sale.
11.2 For Make an Offer listings, an Agent may at any time and without notice to an Offeror remove or re-instate the listing.
11.3 For Timed Sale listings, an Agent may at any time and without notice to an Offeror remove or re-instate the listing or vary the duration of the listing visible on the Realtair Sell Platform by shortening or extending it.
11.4 The Vendor has absolute discretion as to whether or not to accept an offer to purchase a Property submitted via Make an Offer or Timed Sale. Where multiple offers to purchase a Property are submitted via Make an Offer or Timed Sale, the Vendor may elect to accept any of the offers irrespective of the purchase price offered. An offer to purchase submitted by an Offeror therefore is not guaranteed to be accepted even if it is the highest purchase price offered.
11.5 The Offeror will be notified by email if its offer to purchase a Property has been accepted.
11.6 All offers to purchase a Property submitted via Make an Offer or Timed Sale and all acceptances of such offers by the Vendor are non-binding and remain non-binding until formal exchange of contract for the purchase and sale of the Property. Offerors acknowledge and accept that if the Agent receives additional offers to purchase a Property after the Agent initially notifies acceptance of an offer made by the Offeror but before formal exchange of contract for the purchase and sale of the Property, then the Agent has a duty to put such offers to the Vendor and the Vendor may elect to accept one of those additional offers instead of the offer made by the Offeror. An Offeror may withdraw their offer at any time before formal exchange of contract by notifying the Agent.
11.7 The listing of a Property in Make an Offer or Timed Sale may at any time be transferred to a Timed Auction or Live Auction listing before formal exchange of contract for the purchase and sale of the Property. In that case, the sale of the Property may proceed by Auction via Timed Auction or Live Auction regardless of any offers to purchase the Property submitted via Make an Offer or Timed Sale. If the listing is transferred to a Timed Auction or Live Auction listing, the Offeror will be required to register as a Bidder before being able to submit bids to purchase the property at Auction.
11.8 Unless clause 11.7 applies, sales of Property via Make an Offer or Timed Sale are sales by private treaty and are not, or not intended to be, sales by way of Auction.
11.9 Offerors acknowledge that details of offers submitted via Timed Sale may be published on and publicly available via the Website and Realtair Sell Platform. By submitting an offer via Timed Sale, Offerors consent to details of the offer being published on and made publicly available via the Website and Realtair Sell Platform.
11.10 By making an offer via Make an Offer or Timed Sale, Offerors warrant that the offer is genuine; that they have a genuine intention to purchase the Property at the offer price; and that they are willing and able to pay the deposit for the purchase of the Property based on the offer price and sign a contract to purchase the Property for the offer price. Realtair Sell may at any time suspend or deactivate a Customer account if Realtair Sell becomes aware or suspects that the Customer is:
(a) submitting offers without a genuine intention to purchase the Property at the offer price;
(b) not willing and able to sign a contract to purchase the Property for the offer price;
(c) submitting offers with the intention or for the purpose of frustrating or disrupting the sale of the Property; or
(d) submitting offers to artificially inflate the perceived value of a Property or its ultimate purchase price.
12.1 The terms of this clause 12 apply to:
(a) the Successful Bidder, the Auctioneer and Agent in connection with an Auction that has closed with a Successful Bid (the Successful Auction); and
(b) the Offeror and Agent in circumstances where the Offeror has submitted an offer to purchase a property via Make an Offer or Timed Sale and the offer has been accepted by the Vendor and notified to the Offeror via Make an Offer or Timed Sale, subject to formal execution and exchange of contracts (the Accepted Offer).
12.2 Each of the Successful Bidder, Offeror and Agent are solely responsible for signing and exchanging all contracts, signing all documents and taking all steps necessary to complete the sale of the Property in accordance with applicable Auction and Sale Rules and the terms of the contract for purchase and sale of the Property after the Successful Auction and Accepted Offer (as applicable).
12.3 The Agent is responsible for issuing the contract for purchase and sale of the Property to the Successful Bidder or Offeror as soon as practicable after closing of the Successful Auction or notification of the Accepted Offer (as applicable) in a format required by and otherwise in accordance with the applicable Auction and Sale Rules.
12.4 The Successful Bidder or Offeror must sign the contract for sale and purchase of the Property in a manner that complies with the applicable Auction and Sale Rules immediately after receipt of the contract (in the case of a Successful Auction) or otherwise as soon as practicable (in the case of an Accepted Offer).
12.5 The Successful Bidder or Offeror (as applicable) must pay the deposit for the purchase of the Property as directed by the Vendor or Agent via the payment method and means agreed with the Vendor or Agent. For the avoidance of doubt, Realtair Sell does not facilitate the payment of deposits in connection with the purchase of any Properties. Payment of deposits must be arranged directly between the Successful Bidder or Offeror (as applicable) and the Vendor or Agent.
12.6 The Realtair Sell Platform may provide functionality to assist the Successful Bidder, Offeror and Agent with issuing, signing and exchanging contracts for the purchase and sale of Property and other notifications, communications and documents in connection with the sale of the Property. The Successful Bidder, Offeror and Agent acknowledge and agree that:
(a) the Realtair Sell Platform merely provides a tool to assist with facilitating the issuing, signing and exchanging of contracts for the purchase and sale of Property and other notifications, communications and documents;
(b) Realtair Sell makes no warranty, guarantee or representation, and the Successful Bidder, Offeror and Agent do not rely on any warranty, guarantee or representation from Realtair Sell, that the tools provided by the Realtair Sell Platform to assist with facilitating the issuing, signing and exchanging of contracts for the purchase and sale of Property and other notifications, communications and documents or that execution of contracts for the purchase and sale of Property and other documents via use of the Realtair Sell Platform will be compliant with, or ensure that the Successful Bidder, Offeror and Agent will comply with, all applicable Auction and Sale Rules; and
(c) they are each solely responsible for ensuring and satisfying themselves that their use of the Realtair Sell Platform to facilitate issuing, signing and exchanging contracts for the purchase and sale of Property and other notifications, communications and documents will be compliant with all applicable Auction and Sale Rules, including in respect of the form of execution of contracts for the purchase and sale of Property.
12.7 Realtair Sell is not liable to the Successful Bidder, Offeror, Agent, Vendor or any other person for any loss, damage or claim made in relation to the use of the Realtair Sell Platform in connection with issuing, signing and exchanging contracts for the purchase and sale of Property and other notifications, communications and documents or the method used to issue, sign, execute or exchange contracts for the purchase and sale of Property using functionality provided by the Realtair Sell Platform.
12.8 Realtair Sell does not facilitate any further communications, arrangements or dealings between the Successful Bidder, Offeror, Agent or Auctioneer after execution and exchange of the contract for the purchase and sale of the Property. All such further communications, arrangements or dealings must be made directly between the Successful Bidder, Offeror, Agent or Auctioneer without Realtair Sell's involvement.
13.1 The Customer is responsible for all Customer Data which it provides Realtair Sell or inputs into the Realtair Sell Platform through Customer's Account or otherwise provides Realtair Sell, including when creating an Account or through its access to and/or use of the Website or Realtair Sell Platform. The Customer is solely responsible for ensuring the integrity, completeness and accuracy of such Customer Data. The Customer is also solely responsible for determining the purposes and means of processing such Customer Data, including Personal Information, by Realtair Sell under these Terms of Use, and must ensure that processing conducted according to the Customer's instructions or requirements will not place Realtair Sell in breach of any laws (including applicable data protection laws, privacy laws or Auction and Sale Rules). The Customer must not upload, create, publish or communicate via use of the Realtair Sell Platform or Website any data, information, content, works or materials which infringe any third party's copyright, trade mark, trade secret, confidentiality, privacy or other proprietary or Intellectual Property Rights or which violate Auction and Sale Rules or any applicable law, statute, ordinance, rule or regulation. The Customer agrees to comply with Realtair Sell's procedures and policies in respect of uploading information, data, content, works and materials as may be specified by Realtair Sell or on the Website from time to time.
13.2 The Customer warrants that:
(a) it has the right to, or has otherwise obtained all licences, consents, authorisations and approvals and made all disclosures necessary to, collect, store, disclose, use, upload, reproduce, permit Realtair Sell to collect, store, disclose, use, reproduce and/or transfer, the Customer Data using the Realtair Sell Platform, including any Personal Information included in the Customer Data;
(b) the Customer Data will not violate or infringe upon the rights (including Intellectual Property Rights) of any other person;
(c) the collection, storage, disclosure, use, transmission and processing of Customer Data (including Personal Information) by Realtair Sell according to the Customer's instructions or requirements will not place Realtair Sell in breach of any laws (including applicable data protection laws, privacy laws or Auction and Sale Rules) or violate the rights of any person;
(d) the Customer Data is complete, correct and legitimate;
(e) the Customer Data will not contain a virus or other harmful component; and
(f) the Customer Data will comply with any guidelines Realtair Sell specifies on the Website or to the Customer from time to time.
13.3 The Customer acknowledges that the Realtair Sell Platform may include functionality for email, SMS and other Communications or notifications to be sent to the Customer and individual parties in connection with the advertisement for sale, offer to sell, offer to purchase, sale or purchase (whether by private treaty, Auction or otherwise) or Auction of a Properties. The Customer warrants that it has the right to, or has otherwise obtained all licences, consents, authorisations and approvals and made all disclosures necessary to send, and permit Realtair Sell to send or facilitate the sending of, email, SMS and other Communications or notifications using the Realtair Sell Platform and the Website in compliance with Spam Laws and that the sending of email, SMS and other Communications or notifications using the Realtair Sell Platform or the Website by the Customer or by Realtair Sell in accordance with the directions, requests or information provided by the Customer will not place Realtair Sell in breach of any Spam Laws.
13.4 To enable Realtair Sell to provide the Realtair Sell Platform, Website and any other products or services contemplated by these Terms of Use, the Customer grants Realtair Sell, or warrants that it has procured for Realtair Sell from the copyright owner or licensor of the Customer 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 Customer Data.
13.5 The Customer is responsible for and must adopt reasonable measures to limit its exposure to the potential loss, corruption, disclosure and damage of the Customer Data, including making appropriate arrangements for secure back up or storage of the source material in connection with the Customer Data. To the maximum extent permitted by law, Realtair Sell expressly excludes liability for any loss of Customer Data no matter how caused.
13.6 The Customer acknowledges that Realtair Sell may not be able to provide all or part of the Realtair Sell Platform (or the Realtair Sell Platform in the manner intended) if the Customer Data is not complete, correct or accurate or of a quality or condition suitable for processing based on Realtair Sell's applicable standards, specifications and procedures, or is otherwise not in the format required by Realtair Sell. The Customer acknowledges and agrees that Realtair Sell is not responsible for any errors, omissions, losses or damages of any kind resulting directly or indirectly from any inaccuracies in Customer Data or any failure of the Customer to ensure the integrity, completeness or accuracy of Customer Data before providing it to Realtair Sell or inputting it into the Realtair Sell Platform.
13.7 The Customer acknowledges and agrees that:
(a) Realtair Sell may use or modify the Customer Data and information derived from the Customer Data (including by aggregation or other de-identifying techniques) to produce a compilation of Aggregated Data, which may include similar data and information from other customers of Realtair Sell;
(b) provision of the Realtair Sell Platform and its use by the Customer will generate Metadata that Realtair Sell will store and use for the purposes of maintaining and improving the Realtair Sell Platform and potentially for other uses, such as generating or providing new or different services to the Customer and other customers or third parties; and
(c) Realtair Sell owns all right, title and interest in and to the compilation of Aggregated Data and the Metadata and may use and commercialise the compilation of Aggregated Data and the Metadata at its absolute discretion.
13.8 The Customer agrees that Realtair Sell will not be in breach of its obligations under clauses 22 and 23 when producing a compilation of Aggregated Data or any Metadata. In preparing such compilation of Aggregated Data, Realtair Sell will use reasonable endeavours to ensure that the Confidential Information or Personal Information disclosed by the Customer to Realtair Sell cannot be reasonably ascertained from the Aggregated Data.
13.9 If the Customer is part of a corporate group, franchise or similar network, it accepts that high-level performance, tracking and statistical data may be provided to the associated group and/or franchise head office for the purposes of enabling the associated group and/or franchise head office to oversee and assist the Customer's performance.
14.1 If the Customer uses any communication tools available through the Website, the Customer agrees only to use such communication tools for lawful and legitimate purposes. The Customer must ensure that all materials and content communicated or disseminated through use of such communication tools complies with the requirements of clause 5.3. The Customer must not use any such communication tools for posting or disseminating any material unrelated to the use of the Realtair Sell Platform, including (but not limited to) unsolicited commercial e-mails and files that may damage any other person's computing devices or software.
14.2 When the Customer makes any communication on the Website, the Customer represents that it is permitted to make such communication. While Realtair Sell may remove any communication at any time in its sole discretion, Realtair Sell 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 Realtair Sell Platform. As with any other web-based forum, the Customer must exercise caution when using the communication tools available on the Website.
15.1 The Customer must take its own precautions to ensure that the process which it uses for accessing the Realtair Sell Platform and Website does not expose it to the risk of viruses, malicious computer code or other forms of interference which may damage the Customer's computer system.
15.2 Realtair Sell does not accept responsibility for any interference or damage to Customer's computer system which arises in connection with Customer's use of the Realtair Sell Platform or Website.
16.1 The Customer acknowledges that Realtair Sell engages a Hosting Service Provider to provide data storage services, to host the Realtair Sell Platform and to store Customer Data. Realtair Sell may also engage Support Service Providers to provide support, maintenance, development and other services in respect of the Realtair Sell Platform to the Customer. The Hosting Service Provider and Support Service Providers may transmit, maintain and store all or parts of the Customer Data (including Personal Information) on multiple servers across various jurisdictions. Customer Data (including Personal Information) may also be transferred between Related Bodies Corporate of Realtair Sell that are located in different jurisdictions, including Australia and the Philippines. Servers in which Customer Data (including Personal Information) may be stored by the Hosting Service Provider are likely to be located in Australia, Philippines, and the US and servers in which Customer Data (including Personal Information) may be stored by the Support Service Providers are likely to be located in Australia, The Philippines and additional or other locations may be used by the Hosting Service Provider or Support Service Providers in the future. The Privacy Act requires Realtair Sell to ensure that its Hosting Service Provider, Support Service Providers 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 Realtair Sell with Customer Data (including Personal Information) or by accessing or using the Realtair Sell Platform or the Website, the Customer: (a) consents to Realtair Sell disclosing and transferring Customer Data (including Personal Information) to its Hosting Service Provider and Support Service Providers for the purpose of allowing the Hosting Service Provider to host all data necessary to support the Realtair Sell Platform and Website, the Support Service Providers to provide training, support, maintenance, development and other services in respect of the Realtair Sell Platform to the Customer and for Realtair Sell to provide the Realtair Sell Platform to the Customer; (b) consents to Realtair Sell, the Hosting Service Provider and Support Service Providers transmitting, maintaining and storing Customer Data (including Personal Information) between and on servers located outside of Australia, including in the countries and regions referred to above; and (c) agrees that the requirement under the Privacy Act for Realtair Sell to ensure that its Hosting Service Provider, the Support Service Providers and any other third party provider it may use from time to time comply with applicable Australian privacy laws in respect of Customer Data (including Personal Information) does not apply. The Customer acknowledges and agrees that the transmission of Customer Data (including Personal Information) between Realtair Sell, its Hosting Service Provider and its Support Service Providers respectively is necessary for Realtair Sell to maintain the Website and Realtair Sell Platform and to provide the Realtair Sell Platform and associated training, support, maintenance and development services to the Customer. Realtair Sell may engage other data storage or service providers or store Customer Data on servers in other locations in the future and will update these Terms of Use if that is the case.
16.2 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 intended to prevent unauthorised access or use of any part of the Realtair Sell Platform or Customer Data by any person.
17.1 While Realtair Sell intends to use reasonable commercial efforts to make the Realtair Sell Platform and Customer Data available for the Customer's use on a 24 hour a day, seven days a week basis, the Customer expressly acknowledges and agrees that service continuity is not assured and that the Realtair Sell Platform and Website are provided on an 'as is' basis. In particular, the Customer agrees that on occasions the Realtair Sell Platform, Customer 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 the 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 17.3 applying.
17.2 In the case of technical problems which adversely affect the Customer's use of the Realtair Sell Platform, the Customer must make all reasonable efforts to investigate and diagnose problems before contacting Realtair Sell. If the Customer still needs technical help after first attempting to investigate, diagnose and resolve the technical problem or requires any assistance with use of the Realtair Sell Platform, the Customer must notify Realtair Sell promptly via email or via the support portal or telephone service provided by Realtair Sell for support purposes. Realtair Sell may impose reasonable usage limitations on support services from time to time, at its discretion. Realtair Sell reserves the right to refuse acceptance of telephone calls and support requests, to refuse to provide support or to invoice the Customer for any support services at Realtair Sell's prevailing rates, at its discretion, if it 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 Realtair Sell.
17.3 Realtair Sell may temporarily limit or suspend the availability of all or part of the Realtair Sell Platform, Website or Customer Data if it is necessary for reasons of public safety, security or maintenance of the Realtair Sell Platform, interoperability of services, data protection or to perform work that is necessary for operational or technical reasons.
17.4 Despite anything else in these Terms of Use, Realtair Sell may cancel or suspend the Customer's Account, access to the Realtair Sell Platform or cancel the Realtair Sell Platform or operation of the Website in their entirety at any time at Realtair Sell's discretion.
18.1 The Fees and payment terms set out in clauses 18 and 19 apply unless otherwise separately agreed between Realtair Sell and the Customer.
18.2 The Customer agrees to pay Realtair Sell all Fees that apply in respect of that Customer's access to and use of the Realtair Sell Platform in the amounts, at the times and in the manner notified by and agreed with Realtair Sell from time to time.
18.3 Payment of fees may be made by electronic funds transfer, automatic debit from the Customer's nominated bank account, credit or debit card payment (using the credit or debit card details provided by Customer) or any other means as may be specified by Realtair Sell from time to time. The Customer acknowledges and agrees that an additional surcharge may be charged in respect of credit card payments. All credit card and debit card payments are subject to validation checks and authorisation by the card issuer. If the issuer of the Customer's card refuses to or does not for any reason authorise payment of a particular Fee or if the applicable Fee is not automatically debited for any reason, Realtair Sell may suspend the Customer's access to the Realtair Sell Platform until such time as payment of the applicable Fee is received by Realtair Sell in full.
18.4 Realtair Sell may change the Fees at any time by giving the Customer 60 days notice of the change.
19.1 If the Customer fails to pay Realtair Sell any amount payable under these Terms of Use when due, then:
(a) all money owing to Realtair Sell by the Customer becomes immediately payable;
(b) Realtair Sell may suspend the Customer's Account and access to the Realtair Sell Platform, and may charge a reactivation fee for the suspended Account;
(c) the Customer agrees to pay interest on the overdue amount at the rate of 4% per annum above Realtair Sell's primary bank's standard overdraft rate – with such interest shall accruing on a daily basis from the due date until actual payment of the overdue amount; and
(d) the Customer must pay all reasonable expenses incurred by Realtair Sell in enforcing these Terms of Use, including, but not limited to, all expenses of any legal proceeding and all reasonable attorneys' fees incurred in connection with such action.
20.1 The Customer must reimburse Realtair Sell for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under these Terms of Use, excluding, however, income taxes on profits which may be levied against Realtair Sell.
20.2 Without limiting clause 20.1, all consideration provided for any taxable supply under these Terms of Use is exclusive of GST unless the contrary is clear. The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply. The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due.
20.3 If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under these Terms of Use:
(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.
21.1 Except for the limited licence to access and use the Website and Realtair Sell Platform under clause 3, all ideas, concepts, know-how, data processing techniques, data compilations, software, documentation, trade marks, business and trading names, trade secrets, copyright and inventions and other Intellectual Property Rights comprised in or in connection with the Website and the Realtair Sell Platform (including their underlying technology, software, programs, as well as all their respective modifications, developments, updates and enhancements), and all Intellectual Property Rights comprised in or in connection with Metadata and compilations of Aggregated Data produced by Realtair Sell, are owned by Realtair Sell or its licensors. Customer agrees that no transfer of Realtair Sell's (or its licensors') Intellectual Property Rights occurs at any time by access to or use by Customer of the Website or Realtair Sell Platform.
21.2 For the avoidance of doubt, Realtair Sell owns all Intellectual Property Rights in all modifications, developments, updates, enhancements, adaptations, functionality, processes, data, software (including source code), literary works, artistic works and all materials or works in which copyright subsists which are created, developed, improved, modified or enhanced by Realtair Sell at the Customer's request or as a result of customisations or configurations made in respect of the Realtair Sell Platform, any Features or any parts of the Realtair Sell Platform at the Customer's request (“New IP”) and all such New IP will become, at Realtair Sell's sole discretion, a part of the Realtair Sell Platform that it may offer to other customers.
21.3 To the extent that the Customer holds or retains any right, title or interest (including Intellectual Property Rights) in or to any of the New IP or any part of a compilation of Aggregated Data produced by Realtair Sell or Metadata, Customer assigns all such right, title and interest (including Intellectual Property Rights) to Realtair Sell or Realtair Sell's nominee.
21.4 The Customer does not own or use, and must not claim any right or title to own or use, the Intellectual Property Rights in the Website or Realtair Sell Platform, except to the extent such use is permitted under these Terms of Use. The Customer must not dispute or challenge the entitlement of Realtair Sell (or its licensors) to own, use or licence the Intellectual Property Rights in the Website, Realtair Sell Platform (including their underlying technology, software, programs, as well as all their respective modifications, developments, updates and enhancements), compilations of Aggregated Data produced by Realtair Sell or Metadata, or join any third parties to challenge or contest the validity of those Intellectual Property Rights.
21.5 The Customer agrees to notify Realtair Sell promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights in the Website or Realtair Sell Platform and reasonably co-operate with Realtair Sell in relation to such infringement.
21.6 The Customer agrees to notify Realtair Sell promptly of any unauthorised, suspected or threatened third party access to or use of the Customer Data, Website or Realtair Sell Platform and to reasonably co-operate with Realtair Sell in relation to such unauthorised third party access or use.
22.1 Each party (“Recipient”) must not without the written consent of the other (“Discloser”):
(a) use any Confidential Information of the Discloser, except in performing its obligations under these Terms of Use; or
(b) disclose any Confidential Information of the Discloser to any person except to the Recipient's approved employees, officers, directors and other representatives, who need to review the Confidential Information in connection with performance under these Terms of Use, and then only to those who need to know the same and who agree to be bound by similar obligations of confidentiality. Notwithstanding the foregoing, Realtair Sell may disclose certain Confidential Information of the Customer to Realtair Sell's third party suppliers, including Support Service Providers, subject to the obligation of confidentiality, as necessary to (i) provide the Customer with the Realtair Sell Platform or obtain or provide support, maintenance, development or other services for the Realtair Sell Platform, (ii) obtain information specifically requested by the Customer, (iii) perform back-office functions or administrative services, or (iv) as necessary to comply with legal and/or accounting requirements.
22.2 The Recipient must:
(a) not use the Discloser's Confidential Information to the detriment of the Discloser;
(b) ensure that each person or entity to whom it discloses Information under clause 22.1 complies with the confidentiality obligations set out in these Terms of Use;
(c) establish and maintain effective security measures to keep the Discloser's Confidential Information confidential;
(d) immediately notify the Discloser of any actual or suspected disclosure of Confidential Information in breach of these Terms of Use;
(e) immediately take all reasonable steps to avoid or stop a breach of the confidentiality obligations set out in these Terms of Use; and
(f) immediately notify the Discloser of any actual or suspected legal requirement to disclose Confidential Information and delay disclosure until the Discloser has had a reasonable opportunity to oppose or limit disclosure to the extent legally permitted.
22.3 Nothing in these Terms of Use does or is intended to give the Recipient any right or interest (including Intellectual Property Rights) in the Discloser's Confidential Information or copies or reproductions of the Discloser's Confidential Information in any form except as expressly set out in these Terms of Use and the Recipient agrees not to claim that it has any such rights or interest.
22.4 The Customer agrees not to disclose information about the Realtair Sell Platform, or provide demonstrations of or allow access to the Realtair Sell Platform, to any person or company that offers, or intends to offer, a product or service that competes with or performs substantially the same function as the Realtair Sell Platform or any Feature.
22.5 This clause 22 will not impose confidentiality obligations upon the recipient of Confidential Information where:
(a) disclosure of Confidential Information is required by law, applicable regulations 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;
(c) the Recipient can prove by contemporaneous records that the Confidential Information was developed independently by the Recipient and without reliance in any way on any of the Discloser's Confidential Information; or
(d) the Confidential Information was received by the Recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.
22.6 These obligations of confidentiality survive termination of these Terms of Use.
23.1 Each party must comply with the Privacy Act and any other applicable laws and codes dealing with privacy. The Customer acknowledges that it has read and accepts Realtair Sell's Privacy Policy published on the Website from time to time.
23.2 The Customer warrants to Realtair Sell that:
(a) any Personal Information that it discloses or transmits to Realtair Sell under these Terms of Use, or when using the Realtair Sell Platform, has been collected in accordance with the Privacy Act;
(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
(c) Realtair Sell is authorised to collect, store, disclose and use the Personal Information disclosed to it by the Customer for the purposes of these Terms of Use and the Realtair Sell Platform.
23.3 The Customer acknowledges and agrees that transmissions made by means of the Internet cannot be fully secure in all instances and Realtair Sell cannot guarantee that any electronic communication or data transmission made via the Website or Realtair Sell Platform (including uploading or transmitting any Customer Data or Personal Information) will be secure, uninterrupted or delivered. The Customer makes such communications and transmissions and agrees to receive electronic communications from Realtair Sell and other users of the Realtair Sell Platform (as applicable) at the 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 Realtair Sell and other users of the Realtair Sell Platform (as applicable).
23.4 The Customer consents to Realtair Sell, its Hosting Service Provider, Support Service Providers and their Related Bodies Corporate and affiliates releasing Personal Information provided by the 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
(b) in special cases, when Realtair Sell believes it is necessary to share information in order to investigate, prevent or take action regarding any illegal or unauthorised activities, suspected fraud, potential threats to the physical safety of any person or violations of these Terms of Use.
23.5 Each Bidder, Offeror, Follower, Agent and Auctioneer consents to Realtair Sell using their Personal Information provided to Realtair Sell via use of the Website or Realtair Sell Platform (including name, email address and contact phone number) for the purpose of providing that Bidder, Offeror, Follower, Agent or Auctioneer (as the case may be) with marketing communications relating to services offered by Realtair Sell, any company that is a Related Body Corporate of Realtair Sell, or a commercial partner of Realtair Sell. A Bidder, Offeror, Follower, Agent and Auctioneer may opt out of receiving such communications by contacting Realtair Sell.
23.6 Bidders, Offerors and Followers consent to Realtair Sell disclosing Personal Information they provide via use of the Website or Realtair Sell Platform (including name, email address and contact phone number) to Agents and Auctioneers in order to facilitate Agents and Auctioneers contacting them for any purpose associated with the Realtair Sell Platform or for Agents and Auctioneers to contact them for certain marketing purposes, including:
(a) for Agents or Auctioneers to provide Bidders, Offerors and Followers with marketing communications that:
(i) relate to any Property; and/or
(ii) relate to any other real estate in respect of which they act for the Vendor;
(b) in the case of Bidders and Offerors, to acknowledge bids or offers and facilitate signing and exchanging contracts, documents, communications and taking all steps necessary to complete the sale of the Property; and
(c) in the case of Followers, to provide further information about Properties being followed by the Followers or information about other Properties the Followers may be interested in.
23.7 Each Customer acknowledges and accepts that Realtair Sell may keep a record of the Customer's Personal Information after cancellation of the Customer's Account or access to the Realtair Sell Platform or after termination of these Terms of Use if and to the extent required for Realtair Sell to comply with applicable laws, regulations and Auction and Sale Rules. Each Customer consents to Realtair Sell keeping such records for such purposes.
24.1 The Customer acknowledges that Realtair Sell's ability to make the Website and/or the Realtair Sell Platform available for access and use is dependent on a number of factors outside of Realtair Sell's control, for example, telecommunication connections and infrastructure.
24.2 Except for the Customer's payment obligations under these Terms of Use, neither party is liable for any delay or failure to perform any of its obligations under these Terms of Use to the extent that the delay or failure is caused or contributed by a Force Majeure event.
25.1 The Customer represents and warrants to Realtair Sell that:
(a) it has the power, legal capacity and authority to create an Account for use of the Realtair Sell Platform and be bound by these Terms of Use, and to perform its obligations under these Terms of Use;
(b) it has taken all necessary steps, including any corporate action necessary if it is a corporation, to authorise its entry into and performance of all of its obligations under these Terms of Use and to carry out the transactions contemplated by these Terms of Use.
26.1 Realtair Sell has no responsibility to any person other than the Customer and nothing in these Terms of Use confers, or purports to confer, a benefit on any person other than the Customer. If the Customer accesses and uses the Realtair Sell Platform on behalf of or for the benefit of anyone other than the Customer (whether a body corporate or otherwise) the Customer must ensure that it has the right to do so.
26.2 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 and any notifications or communications sent by Realtair Sell to Customers may contain inaccuracies or errors. Realtair Sell assumes no responsibility (and expressly disclaims responsibility) for updating the Website to keep information current or to ensure the accuracy or completeness of any information posted on the Website or contained in any notifications or communications sent by Realtair Sell. Accordingly, the Customer should confirm the accuracy and completeness of all such information before making any decision or taking any action based on such information.
26.3 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”). Realtair Sell is not responsible for and does not endorse the content of Linked Sites or Third Party Material, any use (or misuse) of information the 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. Realtair Sell 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. Realtair Sell is not a party to or responsible for any transactions the Customer may enter into with third parties, even if the Customer learns of such parties (or uses a link to such parties) from the Website.
26.4 Realtair Sell makes no guarantee, representation or warranty (express or implied):
(a) that Customer's use of the Website and/or Realtair Sell Platform will be error-free, secure, uninterrupted or compatible with the Customer's equipment and software configurations or that Realtair Sell will be able to prevent third party disruptions or that Realtair Sell will correct all defects in the Website and/or Realtair Sell Platform;
(b) that the Website and/or Realtair Sell Platform will be fit for the Customer's or any user's purpose or meet all of the Customer's or any user's needs;
(c) that use of the Website or Realtair Sell Platform by the Customer will ensure the Customer's compliance with all laws and regulations that apply to the Customer, including Auction and Sale Rules, taxation, accounting, reporting and data retention laws, regulations, standards and obligations with which the Customer must comply.
26.5 The Customer agrees that:
(a) the provision of, access to, and use of, the Realtair Sell Platform is on an "as is" basis and at the Customer's own risk;
(b) among other things, the operation and availability of the systems used for accessing the Realtair Sell Platform, including telecommunication services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Realtair Sell Platform. Realtair Sell is not in any way responsible for any interference or prevention of the Customer's access or use of the Realtair Sell Platform caused by these types of things;
(c) Realtair Sell is not the Customer's real estate agent or property manager and use of the Realtair Sell Platform does not constitute the receipt of real estate or property management advice. If the Customer has any real estate or property management questions, it should contact an appropriately qualified real estate agent or advisor;
(d) it is the Customer's sole responsibility to determine that the Realtair Sell Platform meets the Customer's needs (including Customer's obligations to comply with all Auction and Sale Rules, accounting, tax, reporting, data retention and other laws, regulations, standards and obligations) and is suitable for the purposes for which it is used;
(e) where the Customer is an Agent or Auctioneer:
(i) Realtair Sell does not at any time, on or via the Realtair Sell Platform or otherwise, maintain for or on behalf of the Agent or Auctioneer any record, log or information required to be made or kept by an Agent or Auctioneer under any laws, regulations, conditions, codes or rules (including but not limited to a bidders record); and
(ii) the Agent or Auctioneer will not use the Realtair Sell Platform for the purpose of hosting or maintaining any record required to be made or kept by an Agent or Auctioneer under any laws, regulations, conditions, codes or rules (including but not limited to a bidders record);
(f) the Customer remains solely responsible for complying with all applicable Auction and Sale Rules, accounting, tax, reporting, data retention and other laws, regulations, standards and requirements in connection with its access and use of the Realtair Sell Platform and Realtair Sell has no liability to the Customer or any person in respect of any claims, losses, costs or damage of any kind suffered or incurred by the Customer or any person arising directly or indirectly in connection with the Customer's failure to comply with any Auction and Sale Rules, accounting, tax, reporting, data retention or other laws, regulations, standards or obligations that apply to the Customer.
27.1 Nothing in these Terms of Use is or should be interpreted as an attempt to modify, limit or exclude terms, warranties or guarantees which are imposed by statute and which cannot be modified, limited or excluded.
27.2 Realtair Sell excludes to the extent permitted by law all other terms, conditions, warranties and guarantees which might apply to or be implied into these Terms of Use.
27.3 The Customer does not rely on any representation, warranty, guarantee or other provision made by Realtair Sell or on its behalf which is not expressly stated in these Terms of Use.
27.4 Subject to clauses 27.1, 27.5, 27.6, 27.7 and 27.8 and to the extent that Realtair Sell's liability is not otherwise excluded or limited under these Terms of Use, the total aggregate liability of Realtair Sell to the Customer for all claims relating to or arising out of the Website, the Realtair Sell Platform and/or these Terms of Use, whether such claims are based on a breach of or omission under these Terms of Use or under contract, for negligence or other tort, for breach of statutory duty, for breach of warranty or in equity or otherwise will not exceed the total Fees paid by the Customer to Realtair Sell for the Realtair Sell Platform during the 6 month period immediately preceding the first event, which gives rise to a claim. There will be only one aggregate liability cap under these Terms of Use even if there are multiple claims and each claim will reduce the amount available in the aggregate liability cap.
27.5 Subject to clause 27.1, if Realtair Sell is liable to the Customer for a breach of a term, condition, warranty or guarantee applied to or implied into these Terms of Use by statute, that liability is limited to the supplying of the Realtair Sell Platform again or the payment of the cost of replacing or having the Realtair Sell Platform supplied again.
27.6 Without limiting the Customer's obligations to pay the Fees, 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 opportunity, 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 Realtair Sell Platform or the inability to use the Realtair Sell Platform and/or Website even if it has been advised of the possibility of such damages or loss.
27.7 The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that:
(a) such loss or damage has been caused by the other party's failure to comply with its obligations and responsibilities under the Terms of Use; or
(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.
27.8 To the extent legally permitted, Realtair Sell has no liability to the Customer or any person for, and the Customer indemnifies, and will defend and hold harmless, Realtair Sell, its Related Bodies Corporate, affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents from and against, any claims, damages, losses (including direct, indirect and consequential loss or damage), liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any of the following (including but not limited to any third party claim concerning the following):
(a) the Customer's or any individual user's access to or use of the Realtair Sell Platform (including any activities by any person via the Customer's Account and use by the Customer's employees, staff or other persons engaged by, authorised by or representing the Customer);
(b) any breach of or failure to comply with these Terms of Use (including a breach of or failure to comply with any warranty made by the Customer in these Terms of Use and any use of the Realtair Sell Platform that is not authorised by these Terms of Use) or violation of or failure to comply with any applicable law, regulations or rules (including Privacy Laws and Auction and Sale Rules) by the Customer, any individual user or the Customer's employees, staff or other persons engaged by, authorised by or representing the Customer;
(c) any loss of service or interruptions, disruptions, connection failures, lags and delays in respect of the Customer's access to the Realtair Sell Platform, including in respect of the Customer's ability to access, view, participate in, make bids at or purchase any Property at any Auctions via the Realtair Sell Platform or ability to submit or accept offers via the Make an Offer or Timed Sale functions of the Realtair Sell Platform;
(d) the transmission of any computer viruses, Trojan horses or any other malicious or harmful computer code or software by the Customer, any person via the Customer's Account or any of the Customer's employees, staff or other persons engaged by, authorised by or representing the Customer, regardless of whether such transmission is accidental or deliberate;
(e) the disclosure, transfer or exchange of Customer Data by Realtair Sell to or with Realtair Sell's Hosting Services Provider, Support Service Providers and otherwise in accordance with these Terms of Use and Realtair Sell's Privacy Policy;
(f) Customer Data or the combination of the Customer Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights (including Intellectual Property Rights) by the Customer Data or by any development, production, publication or use of the Customer Data; and
(g) any inaccuracies in Customer Data or any failure of the Customer to ensure the integrity, completeness, correctness or accuracy of Customer Data before providing it to Realtair Sell or inputting it into the Realtair Sell Platform or publishing it on the Website.
28.1 Realtair Sell may without notice suspend the Customer's Account or access to the Realtair Sell Platform if:
(a) the Customer breaches these Terms of Use; or
(b) Realtair Sell reasonably believes that the Customer's access and use of the Realtair Sell Platform will cause technical incapacity to the Realtair Sell Platform which will continue unless access or use is suspended.
28.2 The Customer may not object to any delay in restoring access to the Realtair Sell Platform when a suspension is lifted. Realtair Sell will act promptly to restore access when it is satisfied that the reason for suspension has been removed.
29.1 Unless otherwise separately agreed in writing between Realtair Sell and the Customer, in addition to and without prejudice to any other rights or remedies, these Terms of Use may be terminated as follows:
(a) by either party giving the other party 60 days written notice of termination;
(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 Realtair Sell upon giving written notice to the Customer, if Realtair Sell'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 Realtair Sell to provide the Realtair Sell Platform or Website expires or terminates or such provider requires Realtair Sell to change the way it provides the Realtair Sell Platform or Website; and
(d) if Realtair Sell gives the Customer a notice under clauses 2.3 or 18.4, the Customer may immediately terminate these Terms of Use by written notice to Realtair Sell at any time within 30 days after the date of the notice from Realtair Sell.
29.2 These Terms of Use remain in full force and effect during the 60 day notice period in the case of termination under clause 29.1(a). In the case of termination under clause 29.1(a), Customer acknowledges that it must continue to comply with its obligations to pay the Fees during the 60 day notice period.
30.1 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.
30.2 Subject to clause 30.3, on termination of these Terms of Use or cancellation of the Realtair Sell Platform or Website for any reason:
(a) Realtair Sell will immediately cease providing the Realtair Sell Platform to the Customer and will deny the Customer access to the Realtair Sell Platform and Customer Data;
(b) the Customer's rights under these Terms of Use immediately cease and the Customer must immediately stop accessing and using the Realtair Sell Platform;
(c) subject to any legal requirements or other obligations to retain Customer Data under these Terms of Use, Realtair Sell may delete all Customer Data but may retain and use, at Realtair Sell's discretion, Customer Data that is not Personal Information; and
(d) the Customer must immediately pay any and all outstanding charges or fees incurred as a result of its access and use of the Realtair Sell Platform.
30.3 All Properties listed on the Website as at the date of termination and all Auctions already scheduled and advertised on the Website as at the date of termination will proceed and remain on the Website and these Terms of Use will continue to apply to such Properties and Auctions unless otherwise agreed by Realtair Sell.
30.4 The Customer acknowledges and agrees that it will be denied access to Customer Data and that Realtair Sell may delete Customer Data on termination of these Terms of Use as set out in clause 30.2. The Customer is solely responsible for downloading and maintaining a copy of all Customer Data prior to the date of termination if it wishes to ensure availability of Customer Data after termination. The Customer indemnifies, and will defend and hold harmless, Realtair Sell, its Related Bodies Corporate, affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents in relation to any loss, claim or damage in connection with denial of access to or deletion of Customer Data in accordance with this clause 30.
31.1 These Terms of Use may not be assigned, sublicensed or otherwise transferred by the Customer, whether by operation of law or otherwise, without Realtair Sell's prior written consent, such consent not to be unreasonably withheld or delayed.
31.2 Realtair Sell may, at any time, novate, assign or transfer part or all of its rights and obligations under these Terms of Use to any third party and to the extent required the Customer consents to the novation, assignment or transfer. The Customer agrees to enter into a novation, assignment or transfer agreement on terms specified by Realtair Sell.
31.3 Realtair Sell may subcontract some or all of its obligations under these Terms of Use to one or more third-parties, however, Realtair Sell will remain responsible for compliance with all of its obligations under these Terms of Use and is responsible for compliance of these Terms of Use by each third party subcontractor as if that third party was a party to these Terms of Use.
32.1 Notices given under these Terms of Use must be in writing and delivered to a party by hand or by email to that party's address shown below or to an alternate address notified to the party giving the notice. The Customer's address for delivery of a notice is the address notified to Realtair Sell when the Customer registers to use the Realtair Sell Platform. Realtair Sell's address for delivery of a notice is:
Attention: Blake Williams
Realtair Office Pty Limited
388 George Street Sydney Australia 2000
Email: Support@realtair.com
32.2 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.
33.1 These Terms of Use constitute the entire understanding between the parties and supersede all previous and contemporaneous communications, representations, or agreements with respect to the Customer's access to and use of the Realtair Sell Platform.
33.2 No failure or delay of either party in exercising any right, power, or privilege under these Terms of Use (and no course of dealing between the parties) operates as a waiver of any such right, power or privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power or privilege.
33.3 If any provision of these Terms of Use is held to be unenforceable, the parties agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision.
33.4 If any one or more of the provisions of these Terms of Use are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these Terms of Use will be unimpaired and will remain in full force and effect.
33.5 Each party must do everything reasonably required by the other to give full effect to these Terms of Use.
33.6 These Terms of Use and all matters regarding the interpretation and/or enforcement of these Terms of Use, are governed exclusively by the laws in force in the State of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales.