What makes up this Licence Agreement?
The Proply Licence Agreement comprises the following parts, which together constitute a single legally binding document (Licence):
• Your registration information;
• The General Terms and Conditions;
By signing up and using Proply you are entering into our Licence. The terms of the Licence supersede any other agreement, whether verbal or written, by any person, sales agent, or sales distributor of Proply.
Your use of Proply (and the Proply Services) is conditional on your acceptance of this Licence. By downloading, uploading, installing, copying, logging into the Site, or otherwise using the Proply Services, you accept and agree to be bound by the terms of this Licence. Acceptance binds you and all of your employees to the terms and conditions of the Licence. If you do not accept those terms and conditions then do not download, upload, install, copy, log into the Site, or use the Proply Services.
General Terms and Conditions
1. LICENCE TERM
1.1 This Licence will commence on the Effective Date and will continue for the Initial Period.
1.2 After the end of the Initial Period the term of the Licence shall extend until, either the Customer or Proply elects to terminate this Licence in accordance with clause 18.
2.1 Proply grants to the Customer a non-exclusive, non-transferable, non-sublicensable limited licence during the Initial Period and each Extension Period (if any):
(a) to access the Services;
(b) to obtain any other information relating to any of Proply’s products or services for a bona fide purpose;
(c) to prepare Proposals relating to the real property market and use those Proposals for the Customer’s commercial purposes only; or
(d) for any other use authorised in writing by Proply
2.2 For the sake of clarity, a Customer may either be a Single User Customer or an Enterprise Customer in accordance with the respective definitions of those terms provided under clause 24.
3. RESTRICTIONS ON LICENCE
3.1 The Customer must use the Proply Services, Proposals and Content strictly in accordance with the Licence terms.
3.2 Except as expressly permitted under this Licence or to the extent permitted by Law, the Customer and its employees, agents and contractors must not:
(a) decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the Proply Services or Proply App, including any source code, object code, algorithms, methods or techniques used or embodied therein;
(b) modify, duplicate or create any derivative works based upon the Proply Services or the Content ;
(c) distribute, resell, disclose, market, publish, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer any Proposals Content in any form to any third party, or use the Proply Services or the Content on behalf of or for the benefit of any third party, except in connection with the use of the Proposals for the Permitted Purpose;
(d) remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Proply Services or the Content ;
(e) data mine, scrape, crawl, email harvest or use any process or processes that send automated queries to the Proply Services or the Content ;
(f) incorporate any portion of the Proply Services or the Content into any other materials, products or services that are not intended for the Customer’s Permitted Purpose; and
(g) use, or offer to use, the Proply Services or any Content for or in connection with any Direct Marketing activities (unless expressly provided for by this Licence) or with the intention of encroaching upon the privacy of an individual or otherwise breaching the Privacy Act as more specifically set out in clause 22.
4. ACCESS TO PROPLY SERVICES
4.1 The Customer will access the Proply Services in the manner notified by Proply to the Customer. If Proply provides the Customer with (or allows the Customer to facilitate the generation of) any account, usernames and/or passwords, the Customer:
(a) bears sole responsibility for protecting all usernames and passwords;
(b) must not share or provide such usernames and passwords to any third party, except as permitted in the case of Enterprise Customers under clause 4.4 of this Licence;
(c) will remain fully responsible and liable for any authorised or unauthorised use of any usernames and passwords; and
(d) will for security purposes change such usernames passwords periodically or as directed by Proply.
4.2 The Customer is fully responsible and liable for the acts or omissions of its employees, agents, or contractors.
4.3 If Permitted Users share usernames or passwords in contravention of this clause, each incidence of such sharing will constitute use of the Proply Services by a person or entity other than the Customer within the meaning of clause 18.3.
4.4 If an Enterprise Customer is provided with (or allows the Enterprise Customer to facilitate the generation of) multiple accounts, usernames and/or passwords pursuant to the provisions of the Proply Services, then the Enterprise Customer:
(a) bears sole responsibility for protecting all usernames and passwords;
(b) must not share or provide such usernames and passwords to any third party, except for the purpose of providing individual parties comprising the Enterprise Customer with individual accounts, usernames, and/or passwords to use the Proply Services in their individual capacity;
(c) will remain fully responsible and liable for any authorised or unauthorised use of any usernames and passwords; and
(d) will for security purposes change such usernames passwords periodically or as directed by Proply.
5. RIGHTS IN PROPLY SERVICES AND CONTENT
5.1 Proply is (or its third party service providers are) the sole and exclusive owner of all right, title and interest in and to the Proply Services and the Content , including any and all creations, inventions and intellectual property rights contained or embodied within the Proply Services and the Content .
5.2 The Customer:
(a) acquires no rights in or to the Proply Services or the Content , except for the limited licence in clause 2;
(b) must not, and must not permit any other person or entity to, infringe upon, harm or contest the validity or Proply’s ownership of the Proply Services or the Content , or the creations, inventions and intellectual property rights contained or embodied within the Proply Services and the Content;
(c) must not make copies (other than for backup or disaster recovery purposes) or derivative works of the Proply Services and the Content, except for the creation of Proposals made in accordance the terms of this Licence.
6. CHANGES TO PROPLY SERVICES
6.1 Proply reserves the right to change or refine the features and functionality of the Proply Services from time to time, although, subject to clause 6.2 below, the Services will during the term of this Licence retain at least the basic features described in the relevant registration information on the Site.
6.2 If Proply decides to cease supporting or providing some or all basic features of a given part of the Proply Services or to cease offering or providing the Service at all, Proply will give the Customer notice of at least 90 days before ceasing to support or provide the basic features or Service , in which case, without prejudice to any other rights the Customer may have under clause 18, the Customer shall be entitled to terminate this Licence (but only in respect of the said Service) by giving Proply notice of at least 30 days commencing at any time during the said 90 day period.
6.3 Proply will not be obliged to provide access to Proply Services or Content to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.
7. CUSTOMER MATERIALS
7.1 If the Customer provides any Customer Materials to Proply or embodies any Customer Materials in any Proposal, the Customer hereby grants to Proply and its service providers a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and licence to use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of, and otherwise commercialise and exploit, the Customer Materials.
7.2 The Customer represents and warrants to Proply and its service providers that:
(a) it has the right to grant the licences referred to above, in and to the Customer Materials;
(b) the Customer Materials do not and will not infringe the rights of any third parties, Proply and its service providers, including, without limitation, intellectual property rights; and
(c) that the Customer Materials are free of worms, viruses, trojan horses, malware and any other disabling code.
7.3 The Customer represents and warrants to Proply that it will abide by all applicable laws, rules and regulations for Customer Materials posted to Proply’s Site, including any Proposal Site, or entered into the Proply Services.
7.4 Because the Customer Materials are not in any way developed or provided by Proply, it will not be responsible for checking or verifying any Customer Materials nor for assessing its suitability for any purpose. Accordingly, any use of or reliance by the Customer upon anything contained in the Customer Materials will be at the Customer’s own risk.
7.5 To the extent the Customer Materials include any Personal Information, the Customer warrants that it has obtained consent from the relevant individuals to use and disclose any such Personal Information as contemplated in this Licence, and that use of the Customer Materials will not put Proply in breach of the Privacy Act.
7.6 For the avoidance of doubt, Personal Information may include personal information of individuals other than the Customer including but not limited to:
(a) information about an individual’s house and its features;
(b) an individual’s residential address;
(c) a photograph or other visual representation of an individual’s house; and
(d) information about the purchase price of an individual’s house, its valuated or appraised price, and its potential sale price, including Forecast Data.
7.7 Proply may in its discretion remove or refuse to distribute or publish in or within its Site or on any Proposal Site any Customer Materials which breach this Licence.
8.1 The Customer will pay the fees set out on the Site (Fees). All Fees, when paid, are non-refundable, even if the Customer stops using the Proply Services or the Content.
8.2 Except as expressly provided otherwise on the Site, all Proply Services are GST inclusive. If GST does not apply to any supply to the Customer, as validly notified by the Customer to Proply, then Proply will deduct the applicable GST. Proply will provide the Customer with a Tax Invoice on a periodic basis and in any event in accordance with the GST Law.
8.3 Proply may at its discretion increase the Fees for or during any Extension Period by providing the Customer written notice of its intention to do so on the Site The Customer may give Proply no less than 30 days prior notice of the Customer’s termination of this Licence by nominating to do so on the Site at [LOCATION].
8.4 Any amounts not paid to Proply when due will be subject to simple interest equal to 10% per annum, calculated on a daily basis.
9. LIMITED WARRANTY
9.1 Proply represents and warrants that the Proply Services will have those features described on the Site, and that it will use commercially reasonable efforts to ensure that the Proply Services are accessible in accordance with this Licence. If this warranty is breached, Proply’s only obligation (and its service providers’ only obligation) is to use commercially reasonable efforts to modify, correct, or provide access to the Proply Services.
10. ALL OTHER WARRANTIES EXCLUDED
10.1 To the fullest extent permitted by Law (subject to clause 10.3), all other warranties are excluded.
10.2 Proply and its service providers expressly disclaim all warranties:
(a) that the Proply Services or the Content will meet the Customer’s requirements or be fit for any particular purpose;
(b) that the Proply Services or the Content will be error-free;
(c) that, if the Proply Services and Content are accessed via Proply’s Site, Proply’s Site will function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure;
(d) that, if the Proply Services include software installed by Proply, the software will be secure, timely, uninterrupted or error-free, will operate in combination with any other hardware, software, system or data, or will meet the Customer’s requirements or expectations;
(e) that any data stored by Proply will be accurate, reliable or secure;
(f) that errors or defects will be corrected, although Proply will endeavour to correct errors within a reasonable time;
(g) related to the correctness, accuracy, reliability of the Proply Services or the resulting Content (or otherwise);
(h) that the Proply Services will be free of viruses or other harmful components, although Proply will use reasonable endeavours to ensure that the Proply Services will be free of viruses;
(i) that the statistical methods on which any of the Proply Services are based use appropriate or accurate assumptions, are fit for the Customer’s particular purpose or are otherwise suitable for the Customer’s use; or
(j) that the performance of the Proply Services will not be affected by data entry errors, including incorrect entries, double entries or delayed entries, or incorrect or untimely data supplied by the Proply’s third party suppliers.
10.3 To the extent that the Competition and Consumer Act 2010 (Cth) implies any warranties under this Licence, then Proply’s liability (and that of its service providers) in respect of those implied warranties is limited:
(a) in the case of goods, to any one or more of the following (as Proply and its service providers may in their discretion determine):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services, to any one of the following (as Proply and its service providers may in their discretion determine):
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again, except as expressly provided elsewhere in this Licence.
10.4 The Proply Services are of a general nature and should not be construed as specific advice or relied upon in lieu of appropriate professional advice.
10.5 The Proply Services do not constitute an appraisal of the subject property. The Customer should not be relied upon in lieu of an appraisal or underwriting process. The accuracy of the methodology used to develop the Content generated by the Proply Services, the existence of the subject property, and the accuracy of the predicted value and all rule sets provided are estimates based on available data and are not guaranteed or warranted. The condition of the subject property and current market conditions can greatly affect the validity of the Proply Services and the Content. Any Content generated does not include a physical inspection of the subject property or a visual inspection or analysis of current market conditions by a licensed agent, which is typically included in an appraisal.
10.6 Any estimated sales cost produced by use of the Content is not intended to replace a professional valuation of sales costs through an appropriately qualified person (such as a valuer or licensed agent) as the Content does not take into account the scope for variations in sales costs due to matters such as the location and market conditions, fluctuations in availability of properties, cost information and the delivery and lead time and does not include any allowance for costs associated with content removal costs, landscaping costs, furnishing hire costs and the costs of rectifying damage caused during any demolition and construction phases to the land or improvements of the property for sale.
10.7 Forecast Data must not be relied upon as an accurate prediction of future market performance or construed as advice. Forecast Data does not take into account future market conditions or individual circumstances. The Customer should exercise its own skill and judgment when considering investment decisions and seek professional advice where appropriate. Forecast Data is current only at the date of publication or supply and may change over time. Proply expressly excludes any warranties and representations that Forecast Data is an accurate prediction of future market performance.
11. THIRD PARTY AGREEMENTS
11.1 The Customer acknowledges that it has read, understands and agrees to any additional terms, conditions and limitations imposed by Proply’s third party suppliers that are set out in the relevant website or notified to the Customer.
11.2 The Customer acknowledges that Proply has entered into licensing agreements for the use of data with various third party data suppliers (Third Party Agreements), and as such Proply is bound by certain contractual obligations. The Customer agrees:
(a) to comply with and/or accept responsibility for Proply’s obligations expressed or implied in those Third Party Agreements, as notified to the Customer;
(b) that a relevant Third Party Agreement may expire or terminate during the period of this Licence, or that suppliers under a Third Party Agreement may cease to provide the relevant services, products or data for any reason or direct Proply to alter the way in which the Proply Services are provided; and that in such circumstances:
(i) Proply will not be required, nor have any obligation, to provide some or all of the Proply Services to the Customer; and
(ii) Proply will have no liability for any failure to provide the Proply Services to the Customer.
12. LIMITATION OF LIABILITY
12.1 The Customer assumes the risk in using the Proply Services and the Content, as well as total responsibility for establishing such procedures for data backup and virus checking as the Customer considers necessary.
12.2 To the maximum extent permitted by Law, in no event (including without limitation in the event of liability under clause 22) will Proply’s and its service providers’ aggregate liability to the Customer for any causes whatsoever exceed the lesser of ten thousand dollars (AUD$10,000) and the amount of Fees actually paid by the Customer to Proply under this Licence.
12.3 To the maximum extent permitted by Law, in no event will Proply or its service providers be liable for:
(a) any Consequential Loss; or
(b) damages for any loss of profits or revenue, loss resulting from interruption of business or loss of use or data, arising out of or relating to this Licence, however caused, even if Proply and its service providers have been advised of or should have known of the possibility of such loss.
13. THIRD PARTY CLAIMS
13.1 Proply will defend, or at its option settle, any third party claim or suit brought against the Customer on the basis that the Customer’s use of the Proply Services as permitted under this Licence infringes any of such party’s Australian patents or copyrights, and will pay any final judgment entered against the Customer or any settlement of such claim or suit.
13.2 Proply’s obligations in this clause are subject to the following conditions:
(a) the Customer promptly notifies Proply in writing of any allegation of infringement, and fully cooperates with Proply, at Proply’s reasonable cost, in the defence or settlement of such claim or suit;
(b) the Customer makes no admissions;
(c) the Customer at Proply’s request allows Proply or its representatives to solely conduct and/or settle all negotiations and litigation; and
(d) any costs incurred and recovered in such negotiations and litigation will be to the account of Proply and/or its assignee.
13.3 If any part of the Proply Services or the Content is, or in Proply’s opinion may become, subject of any claim or suit for any infringement, Proply may at its own expense and option modify or replace the affected Proply Services or Content so that it is non-infringing, or obtain for the Customer the right to continue using the affected Proply Services or Content. If neither of those options is in Proply’s opinion commercially reasonable, Proply may terminate this Licence with immediate effect, after which time the Customer’s use of the affected Proply Services or Content will be at the Customer’s sole risk.
13.4 Proply’s obligations under this clause:
(a) will not apply to, and the Customer will indemnify and hold Proply and its service providers harmless from, any claim based upon use of any Proply Services or any Content in combination with any equipment, services, data, algorithms, models, indices, tools and/or products not supplied by Proply or its service providers, if the alleged infringement would not have occurred but for such use;
(b) will not apply to, and the Customer will indemnify and hold Proply and its service providers harmless from, any claim relating to Customer Materials, including Proply’s and its service providers’ use of Customer Materials as permitted under this Licence; and
(c) are limited as to quantum as set out in clause 12.
14.1 The Customer will follow all reasonable instructions that Proply gives about the use of the Proply Services and Content.
15. RECORDS, RIGHT TO INSPECT AND AUDIT
15.1 The Customer must maintain complete and accurate records of the Customer’s use of the Proply Services and the Content.
15.2 The Customer:
(a) grants Proply and its licensees for that purpose, upon notice to the Customer of at least seven days, the right to inspect and/or audit the Customer’s records and/or system in order to assess the Customer’s compliance with this Licence; and
(b) must co-operate with any investigation concerning the use by the Customer of the Proply Services or Content.
15.3 Without limiting the generality of clause 15.2 above, Proply may within its sole discretion monitor all Content and the Customer’s use of the Proposals, including without limitation by accessing Proposal logs, but will not access the Customer’s systems for that purpose without giving notice in accordance with clause 15.2.
16.1 The Proply Services may incorporate Google Maps software provided by Google Inc. Where Google Maps software is incorporated into the Proply Services the Customer agrees to be bound by:
(a) the “Google Maps Terms and Conditions”; and
(b) the “Google Maps Legal Notices”
(together the Google Terms).
16.2 If the Customer breaches the Google Terms, the Customer will indemnify and hold Proply and its service providers harmless from any claim whatsoever by Google Inc. relating to the Customer’s breach of the Google Terms.
16.3 The Proply Services may incorporate Pricefinder software provided by Australian Property Monitors Pty Ltd. Where Pricefinder software is incorporated into the Proply Services the Customer agrees to be bound by:
(a) the “Pricefinder Terms and Conditions”; and
(together the Pricefinder Terms).
16.4 If the Customer breaches the Pricefinder Terms, the Customer will indemnify and hold Proply and its service providers harmless from any claim whatsoever by Australian Property Monitors Pty Ltd or its related companies relating to the Customer’s breach of the Pricefinder Terms.
17.1 No Confidential Information may be disclosed by the Customer to any person or entity except:
(a) employees of the Customer requiring the information for the purposes of this Licence who:
(i) are aware of the confidentiality obligations imposed in this clause 17; and
(ii) have entered into written confidentiality agreements with the Customer which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 17;
(b) to the extent the Customer is required to do so by Law; or
(c) to the extent the Customer is required to do so in connection with legal proceedings relating to this Licence.
17.2 Subject to its rights under this Licence, no Confidential Customer Information may be disclosed by Proply to any person or entity except:
(a) employees of Proply requiring the information for the purposes of this Licence who:
(i) are aware of the confidentiality obligations imposed in this clause 17; and
(ii) have entered into written confidentiality agreements with Proply which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 17;
(b) to the extent Proply is required to do so by Law; or
(c) to the extent Proply is required to do so in connection with providing the Proply Services or Content under, or in connection with legal proceedings, relating to this Licence.
17.3 The Customer must not use Confidential Information, and Proply must not use Confidential Customer Information, except for the purpose of exercising their respective rights or performing their respective obligations under this Licence.
17.4 Clauses 17.1, 17.2 and 17.3 do not apply to Excluded Information.
17.5 Notwithstanding clauses 17.1, 17.2 and 17.3, the Customer may disclose parts of the Content, or conclusions or summaries of information based on the Content, provided that such disclosure is for the Permitted Purpose or the Customer has first obtained Proply’s prior written consent for such disclosure and the Customer gives Proply credit as the source of the underlying data in a manner reasonably instructed by Proply.
17.6 The parties will each take any action that is necessary to prevent or remedy any breach of that party’s confidentiality obligations or other unauthorised disclosure of Confidential Information or Confidential Customer Information as the case may be.
17.7 The Customer acknowledges that due to the unique nature of the Confidential Information, any breach by the Customer of its obligations under this clause 17 could result in irreparable harm to Proply and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, Proply and its service providers will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies Proply and its service providers may have at Law.
17.8 Proply acknowledges that due to the unique nature of the Confidential Customer Information, any breach by Proply of its obligations under this clause 17 could result in irreparable harm to the Customer for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Customer will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Customer may have at Law.
17.9 The Customer will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.
17.10 The Customer may not make press or other announcements or releases relating to this Licence or the transactions that are the subject of this Licence without Proply’s prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by Law or by a stock exchange upon which the Customer is listed.
18. BREACH AND TERMINATION
18.1 If the Customer (or its employees, agents or contractors) breaches any term of this Licence, Proply may, at its election, do one or any of the following:
(a) suspend or terminate the Customer’s access to the Proply Services, Proposal Sites or Content immediately upon written notice to the Customer;
(b) commence proceedings against the Customer for any loss or damage Proply suffers as a result of the breach;
(c) refer the matter (including the Customer’s name and contact details) to any debt collector or other third party to assist Proply in collecting any fee not paid to Proply under the terms of this Licence, including conducting any consumer credit searches or listing the Customer with a credit reporting agency.
18.2 Proply and its service providers reserve the right to suspend or terminate the Customer’s access to the Proply Services in circumstances where:
(a) Proply or its service providers reasonably believe that the Customer (which includes its agents or employees) has used or disclosed the Proply Services, Content or other Confidential Information in a manner not permitted under this Licence or otherwise has materially breached this Licence; or
(b) an event of force majeure occurs that affects Proply’s ability to provide the Proply Services or Content and/or access to any Proposal Site.
18.3 If any use is made of the Proply Services or the Content by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to Proply’s other rights and remedies, the Customer will immediately be liable to pay to Proply an amount equal to the charges which such person or entity would have been obliged to pay had Proply granted a licence to the unauthorised user at the beginning of the period of the unauthorised use.
18.4 Either party has the right to terminate this Licence, by a written notice to the other party specifying the event or events in relation to which the notice is given, if:
(a) the other party becomes Insolvent; or
(b) the other party commits a breach of this Licence, and
(i) the breach is material and not capable of being cured; or
(ii) if the breach is capable of being cured and the defaulting party fails to cure the breach within 30 days of being notified in writing of the breach by the party giving the notice (Rectification Period).
18.5 If the Customer fails to rectify any breach within the Rectification Period, Proply may, at its election, accept the Customer’s failure to rectify as:
(a) a repudiation of this Licence; and
(b) 30 days notice of the Customer’s intention to terminate this Licence in accordance with this clause 18 commencing from the date the Rectification Period expired.
18.6 Following the Initial Period, Proply may terminate this Licence, with or without cause, upon at least 30 days prior written notice to the Customer.
18.6 Following the Initial Period, the Customer may give Proply no less than 30 days prior notice of the Customer’s termination of this Licence, with or without cause, by nominating to do so on the Site at [LOCATION]. If the Customer terminates the Licence pursuant to this clause, it must also deliver payment (if it has not done so already) for the entire 30 days notice period.
19. CONSEQUENCES OF TERMINATION
19.1 If this Licence is terminated or expires, all of the Customer’s rights to use the Proply Services, Proposal Sites and Content will immediately end. In the event of any such termination or expiration Proply cannot guarantee that following the applicable termination or expiration date the Customer will be able to retrieve any data. To avoid loss of data the Customer should back-up or copy all important data on its Proposal Sites prior to any such termination or expiration.
19.2 Termination of this Licence will not act as a waiver of any breach of this Licence and will not act as a release of either party from any liability for breach of such party’s obligations under this Licence.
19.3 A party’s termination of this Licence will be without prejudice to any other right or remedy that it may have, and will not relieve either party of any obligation or liability which arose prior to the effective date of such termination.
19.4 The following clauses will survive any termination of this Licence: 5; 7; 8; 9; 10, 11.1, 12; 14; 16; 17; 18; 19; 20; 22; and 24.
20. CUSTOMER INDEMNITY
20.1 The Customer will indemnify and keep indemnified Proply, its employees and consultants, and each of them, from and against all liabilities, damages, costs, loss or expense incurred by any of them in or arising out of any third party claim made against any of them to the extent that the third party claim arose out of any breach by the Customer of:
(a) clauses 2 or 3 above; or
(b) the rights of any third parties.
21.1 All notices, statements, approvals or consents required under this Licence (“notices”) are to be in writing addressed to the receiving party at the address specified below, or such other address as designated in writing in the manner described in this Clause.
21.2 Any and all notices must be delivered by email and confirmed by return receipt of email from the recipient, on date of receipt.
21.3 All notices for Proply must be sent to each of the addresses below:
Proply Solutions Pty Ltd
21.4 All notices for the Customer must be addressed to the person and address specified in the registration information completed by the Customer.
21.5 A party may change its address for service of notices under this clause by giving written notification of the new address to the other party.
(a) comply with all applicable privacy laws and ensure that its employees, agents and contractors do so;
(b) only use personal information that Proply discloses for the purpose for which it was disclosed;
(c) notify Proply immediately (by email to firstname.lastname@example.org) of any privacy complaints or events which may cause any applicable Australian Privacy Principle (APP) or provision of privacy law including in the Privacy Act 1998 (Cth), to be breached; and
(d) assist Proply in dealing with any complaints or potential breaches, including proving its access to relevant information.
22.2 Proply will:
(a) comply with all applicable privacy laws, and ensure that its employees, agents and contractors do so;
(b) subject to its rights under this Licence, only use personal information that the Customer discloses for the purpose for which it was disclosed; and
(c) assist the Customer in dealing with any complaints or potential breaches, including proving its access to relevant information.
23. GENERAL PROVISIONS
23.1 No right under this Licence will be deemed to be waived except by notice in writing signed by the party to be bound.
23.2 This Licence will be governed by and construed in accordance with the Laws in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of that place.
23.3 Variations to this Licence will not be binding unless in writing signed by each party. Written acceptance includes email and online notification of a party’s acceptance.
23.4 The Customer cannot assign this Licence without Proply’s written consent. Proply may assign this Licence or any right or obligation under this Licence without the prior consent of the Customer, but will give notice to the Customer if this occurs.
23.5 The Customer warrants that it has not relied:
(a) on any representation made by Proply which has not been expressly stated in this Licence; or
(b) on the descriptions or specifications contained in any document or material produced or made available by Proply.
23.6 Proply will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of Proply (whether happening in the Territory or elsewhere), including acts of God, refusal of licence, refusal or revocation of any telecommunications organisation’s consent in respect of data communication equipment, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data.
23.7 If the whole or any part of a provision of this Licence is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. This clause has no effect if the severance alters the basic nature of this Licence or is contrary to public policy.
23.8 Nothing contained or implied in this Licence makes one party the partner, agent, or legal representative of the other party for any purpose. Nothing in this Licence creates a partnership, agency or trust, and neither party has any authority to bind the other party.
23.9 The rights and remedies provided in this Licence are in addition to other rights and remedies given by Law.
24. DEFINITIONS AND INTERPRETATION
24.1 In these General Terms and Conditions, unless the context requires otherwise, or unless otherwise provided in a relevant registration information:
Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Customer before, on or after the date of this Licence, relating to the Proply Services, product information services or the business, technology or other affairs of Proply, including any Content, valuation and market share analyses, valuation models and tools, indices, programs or algorithms.
Confidential Customer Information means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to Proply before, on or after the date of this Licence, relating to the Customer, the users of its services, its products, business, technology or other affairs.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Content means any results, data or meta data, including any property information, property attribute data, ownership information, property sales information, photographs, valuation, market share analyses, index results, alerts, or reports, which are either contained within, provided through, derived from, captured by, entered into or generated by the Site and any Proposal Sites or as otherwise provided in the usual course of business by Proply.
Customer means you and any other parties for or on whose behalf you enter into this Licence.
Customer Materials means any and all data, information, content, photographs, metadata and other materials provided or that may be supplied to Proply by the Customer (or obtained by Proply from the Customer), directly or indirectly, including any content posted or entered into any Proposal or Proposal Site from time to time.
Direct Marketing means one to one marketing using personal details (eg: name, address, email address), normally supported by a database/resource, which uses one or more advertising media to affect a measurable response and/or transaction from a person and includes, but is not limited to, telemarketing, bulk email messaging, postal canvassing and list brokering.
Effective Date means the date and time that the Customer accepts these terms by signing (electronically or otherwise) in the position provided by Proply in relation to the Proply Services, or by taking any of the steps set out in the registration procedure on the Site as being ways to accept these terms, or by installing or using any of the Proply Services, whichever occurs first.
Enterprise Customer means a party entering into this Licence on behalf of a commercial enterprise, such as a business, organisation, or government agency, pursuant to making available the Proply Services to the population of an entity (including but not limited to employees, on-site contractors, and off-site contractors) in an enterprise, each of whom has been allocated individual and unique usernames and passwords in relation to the Proply Services in consideration for the Licence fees referred to in clause 8 of this Licence. For the avoidance of doubt, Enterprise Customer specifically excludes consumers or personal users.
Excluded Information means Confidential Information which:
(a) is in or becomes part of the public domain other than through breach of this Licence or an obligation of confidence owed to Proply;
(b) the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by Proply (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(c) the Customer acquires from a source other than Proply where such source is entitled to disclose it.
Extension Period has the meaning given in clause 1.
Forecast Data means information and data forecasting or estimating future market performance which is a computer generated output from a mathematical model using available statistical and property data.
GST has the meaning given to that term in the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Initial Period means the initial period or term specified in the registration information on the Site.
Insolvent means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves.
Law means common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).
Permitted Users means parties who have been allocated usernames and passwords in relation to Proply Services in accordance with this Licence and including both Enterprise Customers and Single User Customers.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
Proposal means the online proposal that the Customer creates using Proply’s Service in order to contract vendors of real property, or owners of real property requiring a third party to procure lessees or persons to maintain their properties
Proposal Site means a website attributed to and established by the Customer hosted by or through Proply’s websites which displays the Customer’s profile and which the Customer may add new material to or regularly update by publishing content and narrative.
Privacy Laws means any legislation (or mandatory government policy, where applicable) enacted by State or Federal agencies in relation to privacy and includes the Privacy Act 1988 (Cth).
Proply means Proply Solutions Pty Ltd (ABN 37 615 339 565) of PO Box 1104, Cronulla NSW 2230.
Proply Services means the service comprising web-based and mobile-device-accessible application that enables real estate and property agencies to prepare and distribute fully interactive web-based proposals to vendors of real property, including property information, data, analytics or services, products, software and/or valuation products selected when registering on the Site, support services and any other services being provided by Proply to the Customer pursuant to the terms of this Licence.
Single User Customer means a party who has accepted and is entering into this Licence under its own member account (with unique login and password credentials) and is using the Proply Services or otherwise exercising rights under this Licence.
Site means Proply’s Site located at the domain names www.proplyapp.com.au and www.app.proplyapp.com.au and includes all Content and webpages forming part of that domain name, including all information, opinions, reports and Content published on, contained in or accessed through this Site.
Tax Invoice has the meaning given to that term in the GST Law.
Territory means Australia and New Zealand.
24.2 The headings in this Licence are for convenience of reference only and will not affect the interpretation hereof. The words “include” and “including” are not words of limitation. Words importing the singular number will include the plural and vice versa.