Top Property Agents Australia Terms & Conditions
- Definitions and interpretation
In this Agreement unless the context indicates otherwise, the following words have the following meanings:
Agreement means these terms and conditions of service including any amendments made from time to time.
Top Property Agents Australia means Top Property Agents Australia Pty Ltd ACN 694 892 469, its successors and assigns.
Top Property Agents Australia’s Services means the provision of an online platform allowing a Consumer to connect with a Supplier.
Consumer means a user of the Website that is not a Supplier.
Consumer Contract means a separate contract between the Supplier and the Consumer for the provision of the Services.
GST means the same as in the GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Quote means a quotation from a Supplier for the provision of Services selected by the Consumer.
Services means the real estate agency services offered by a Supplier following receipt of a request for a Quote from a Consumer.
Subscription Fee means the amount fixed by Top Property Agents Australia, and displayed on the Website, from time to time.
Supplier means a user of the Website who submits a quote to sell Services to a Consumer on or via the Website.
User means the Consumer, Supplier and any other person accessing the Website.
Website means www.toppropertyagentsaustralia.com.au.
In this Agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in this Agreement;
- any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses of this Agreement are not to affect the interpretation;
- any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment;
- the word “including” (and related forms including “includes”) means “including without limitation”; and
- all references to money are to Australian dollars, and unless stated otherwise, are exclusive of GST.
- Top Property Agents Australia’s Services
- Top Property Agents Australia operates the Website, which has been established to facilitate connections between potential Suppliers and Consumers to enable the sale and purchase of Services between Suppliers and Consumers.
- Any Services that a Consumer purchases from a Supplier are:
- not provided by Top Property Agents Australia or covered by this Agreement; and
- governed by the terms of the Consumer Contract.
- Top Property Agents Australia does not guarantee, nor is it responsible for, the quality or suitability of the Services offered by Suppliers using Top Property Agents Australia’s Services, or that the parties to a Consumer Contract will otherwise perform their obligations pursuant to the Contract.
- Users acknowledge and agree that Top Property Agents Australia is not a party to the Consumer Contract or any other arrangement or transaction between a Consumer and a Supplier and under no circumstances will a Consumer Contract or any such transaction, arrangement or sale create a contractual, employment or any other service relationship between Top Property Agents Australia and any Supplier or Consumer, other than the relationship as set out in this Agreement.
- Top Property Agents Australia does not in any way endorse or represent that the Services offered by a Supplier using Top Property Agents Australia’s Services are able to fulfil a Consumer’s requirements, and it is the Consumer’s sole responsibility to make the necessary and relevant enquiries with a Supplier to establish whether they can meet Consumer’s requirements prior to purchasing Services from the Supplier.
- Top Property Agents Australia has no influence or control whatsoever over the information provided by Suppliers and accepts no liability for such information, and it is the Consumer’s responsibility to make the necessary and relevant enquiries as to the accuracy of the information provided by Suppliers.
- Users acknowledge and agree that Top Property Agents Australia will not be responsible for any acts or omissions of any third party or their failure to provide Services.
- Top Property Agents Australia does not guarantee that the provision of any Quote will result in a sale or Consumer Contract for the Supplier.
- Top Property Agents Australia may provide Top Property Agents Australia’s Services or refuse or discontinue to provide Top Property Agents Australia’s Services to any person at any time in its absolute sole discretion.
- To be eligible to create an account with Top Property Agents Australia and receive Top Property Agents Australia’s Services, a User must be a natural person of at least 18 years of age.
- A User may be a representative of a corporation duly incorporated and validly existing under Australian law, in which case, the Consumer, to the extent required, will be deemed to be the corporation that the User represents.
- Fees Payable to Top Property Agents Australia
- Consumers are able to access the introduction services to Suppliers on the Website free of charge.
- If any specific consulting or engagement is required from a Consumer, the Top Property Agents Australia will formalise that engagement outside of the Website.
- Top Property Agents Australia will provide the Consumer with a tax invoice in accordance with the GST Law in relation to the services rendered payable under this clause.
- For clarity, the Supplier will provide the Consumer with a separate tax invoice for the Services provided to the Consumer pursuant to a Consumer Contract.
- Top Property Agents Australia will not be liable for any reasonable delay in the release of a Quote to the Consumer, by a Supplier.
- Top Property Agents Australia may be paid a fee from Suppliers for the successful completion of Services that have been introduced via the processes on the Website.
- User Conduct
- Users must at all times whilst using Top Property Agents Australia’s Services, the Website, or maintaining an online account with Top Property Agents Australia:
- comply with the terms of this Agreement (including all other Top Property Agents Australia policies and the Top Property Agents Australia terms of use advised from time to time);
- ensure the accuracy of the information posted by them on the Website;
- not use the Website for any illegal or otherwise unethical purpose;
- maintain full control of the Supplier’s and Consumer’s online account;
- if leaving a review, ensure the review is honest, based on a Supplier’s or Consumer’s own experience, and not contain content that is racist or sexist, offensive, condescending to certain people or groups, copyrighted material, unlawful, any personal information or any information which is inaccurate or false;
- not post any information on the Website or any other medium, or engage in any activity or behaviour which does or is capable of harming Top Property Agents Australia, or any other Supplier or Consumer, including (without limitation) posting information that may be defamatory, threatening or harassing, or which contains any information that may be harmful to Top Property Agents Australia’s Services and the Website;
- ensure that it does not engage in any conduct which may infringe upon the intellectual property or other proprietary rights of any other person;
- comply at their own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority; and
- in respect to the Website, not:
- use the Website in any manner that does or could potentially undermine the security of the Website or any data or information stored on the Website;
- attempt to, interfere with, modify or disable any features, functionality or security controls of the Website;
- defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Website or any data or information stored on the Website;
- copy part or all of the Website;
- modify, adapt, translate, tamper with, reverse engineer or otherwise derive source codes, underlying ideas, algorithms, structure or organisational form for the Website or attempt to do any of those things; or
- use robots, spiders, scraping or other technology to access or use any information on the Website.
- Top Property Agents Australia reserves the right to remove any content that does not comply with its guidelines or terms of this Agreement.
- In using the Top Property Agents Australia Services, Users, Consumers and Suppliers each warrant and represent to Top Property Agents Australia that:
- if it is a corporation, it is a corporation duly incorporated and validly existing under Australian law;
- it has full power and authority to enter into this Agreement and perform any obligations imposed upon it under this Agreement;
- it has procured all necessary consents for the performance of this Agreement in accordance with its terms;
- this Agreement constitutes a valid and binding obligation, enforceable against it in accordance with its terms;
- the entry into and performance of this Agreement by it does not constitute a breach of any obligation (including any statutory, contractual or fiduciary obligation), or default under any agreement or undertaking by which it is bound; and
- no meeting has been convened, resolution proposed, petition presented or order made for the winding up of it and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of a court has been appointed in relation to any of its assets and no mortgagee has taken or attempted or indicated in any manner any intention to take possession of any of its assets.
- Consumer Contracts
- Suppliers are solely responsible for the Services supplied to a Consumer pursuant to any Consumer Contract and are solely responsible for effecting any insurance that may be required to be taken out in connection with the provision of such Services.
- To the maximum extent permitted by law:
- Top Property Agents Australia is not responsible or liable to a Consumer and/or a Supplier in relation to any disputes arising under or in connection with a Consumer Contract; and
- the Consumer and Supplier each indemnify Top Property Agents Australia against any loss, cost or expense that Top Property Agents Australia may suffer or incur (including legal fees on a solicitor and own client basis) in relation to any claim made against Top Property Agents Australia in connection with a Consumer Contract except to the extent that such loss, cost or expenses are directly caused or contributed by Top Property Agents Australia’s negligent act or omission.
- Limitation of Liability
- The Supplier and the Consumer acknowledge that:
- Top Property Agents Australia does not carry out any form of investigation or due diligence into the Supplier or the Consumer;
- Top Property Agents Australia makes no endorsement of any kind regarding the suitability of the Supplier or the Consumer; and
- the Supplier and the Consumer engage with each other and enter into a Consumer Contract entirely at their own risk after having the opportunity to conduct their own investigations and due diligence into each other.
- To the maximum extent permitted by the applicable law:
- Top Property Agents Australia does not make any warranties or representations other than those expressly set out in this Agreement; and
- all terms, representations and warranties that may be excluded by law regarding the Top Property Agents Australia Services are expressly excluded from this Agreement.
- If any legislation implies into this Agreement any term or warranty and also prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under, that term or warranty, it is deemed to be included in this Agreement.
- To the maximum extent permitted by the applicable law, Top Property Agents Australia expressly excludes liability for any:
- indirect, special, incidental, or consequential loss or damage suffered by the Consumer and/or Supplier which may arise in connection with this Agreement or in respect of other equipment or property;
- loss, damage or expense that the Consumer and/or Supplier may incur or suffer (as the case may be) as a consequence of any act or omission of any third-party service provider in connection with the provision of the Top Property Agents Australia Services;
- behaviour, wrongdoing or negligence of any other User, including in the event of a breach by either a Consumer or Service Provider pursuant to any Consumer Contract; and
- loss of profit, business, revenue, goodwill or anticipated savings.
- Top Property Agents Australia shall have no liability to a User whatsoever in respect of the Services and/or the dealings with any Supplier or Consumer who are listed on the Website.
- To the maximum extent permitted by law, if for any reason Top Property Agents Australia is held directly or indirectly liable to the Consumer and/or Supplier in respect of Top Property Agents Australia’s Services, Top Property Agents Australia’s liability is limited to:
- For Consumers, refunding the Subscription Fee to the Consumer referable to the month in which the liability to the Consumer arose;
- For Suppliers, providing its service to the Supplier again.
- In acknowledgement of the fact that Top Property Agents Australia is not a party to any contract or communications between a Consumer and a Supplier, Users hereby release and hold Top Property Agents Australia harmless from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute between a Consumer and Supplier.
- Terminating our Agreement
- Suppliersand Consumers may end this Agreement at any time by ceasing to use the Top Property Agents Australia Services.
- Users need to contact Top Property Agents Australia directly by email, phone or post to request closure of their account.
- As Top Property Agents Australia is not a party to any Consumer Contract, the termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Consumer Contract a Consumer may have with a Supplier.
- Top Property Agents Australia may revoke or limit a User’s access to Top Property Agents Australia’s Services, deny registration, and refuse to provide any or all of Top Property Agents Australia’s Services to a User if:
- Users breach any terms and conditions of this Agreement or any other instructions provided by Top Property Agents Australia in connection with use of the Website;
- Top Property Agents Australia has reason to believe that a User has provided false or misleading information;
- Top Property Agents Australia concludes that a User’s actions may cause legal liability for Top Property Agents Australia or others, may be contrary to Top Property Agents Australia’s interests or Users of the Website, or may involve illicit or illegal activity; or
- Top Property Agents Australia is required to by law, legal process, or law enforcement to limit or revoke a User’s access.
- Financial Advice
- Top Property Agents Australia is restricted from providing financial advice that can be relied upon pursuant to the Corporations Act 2001(Cth). Any financial information published on the Website is general in nature and should not be construed as specific financial advice. Financial advice should be sought by Consumers from a licenced financial advisor, as required and appropriate.
- General
Top Property Agents Australia will not incur any liability for any breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party.
Top Property Agents Australia may amend any term of this Agreement at any time by providing notice to a User.
This Agreement may be assigned, transferred or novated by Top Property Agents Australia without a User’s consent.
- Entire agreement
- This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement.
- The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
- Waiver
- No failure or delay by Top Property Agents Australia in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
- No Agency or partnership
- This Agreement does not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
- Neither party will have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
- Further assurance
Each Party to this Agreement must at the request and expense of the other, do all things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia, and the Parties submit to the exclusive jurisdiction of the courts of Queensland, Australia.
