This agreement and these policies change from time to time and you agree that all changes to this agreement and these policies form part of your agreement with us. All of our policies may be accessed at http://www.homes.com.au/terms-conditions/.
By accepting this agreement (including the Policies) you agree to be bound by it and also the user agreements and posted terms and conditions on other websites operated by Homes and its related and affiliated companies, to the extent that you use those websites.
Sharing Your Content and Information
- You own all of the content, Advertising and Information you post on Homes, and you can control how it is shared through your privacy and application settings
- Subject to your privacy and application settings, for content and Information that is covered by intellectual property rights, including photos and videos, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the content and Information that you post on or in connection with Homes. This license ends when you delete your content and Information or your account unless your content or Information has been shared with others, and they have not deleted it.
- You understand and accept that deleted or removed content may persist in backup copies for a reasonable period of time.
- When you use an application, your content and information is shared with the application. Your use of applications will be subject to these Terms and any specific terms relating to that application.
- You warrant that if any content, Advertising and Information you post on Homes contains the name or photographic or pictorial representation of any living person and/or any copy by which any living person can be identified, you have obtained the authority of that person to make use of his/her name or representation or the copy.
- We do our best to keep you safe when using Homes but unfortunately we cannot always guarantee this.
- We reserve the right to monitor and take action if any of the Homes Services are used inappropriately (including the posting of objectionable material on a chat facility or otherwise).
- Homes can remove any content or Information you post on Homes if we believe that it violates any of these Terms.
- Homes does not promise that any Homes Service will not contain inappropriate, indecent, objectionable or offensive content or Information (including language, linguistic use and culture) or that we will remove / modify such content or Information. As such, you use the Services at your own risk.
- Homes cannot guarantee that others users will comply with our terms and conditions or otherwise behave appropriately.
- If you are the victim of offensive or inappropriate behaviour or receive any other unwanted communications, you should report all inappropriate behaviour to us via email to [email protected] as well as seeking appropriate external help, for example from family, friends and carers or law enforcement authorities.
- By using the Services you agree:
- You will not bully, intimidate, stalk or harass any user.
- You will not post public content that is hateful, threatening, pornographic; incites violence; contains nudity or graphic or gratuitous violence.
- You will not collect other users’ content or information, or otherwise access Homes, using automated means (such as harvesting bots, robots, spiders, or scrapers (including use of scripts or web crawlers)) without our permission.
- You will not use Homes to do anything unlawful, fraudulent, misleading, malicious, or discriminatory or engage in any abusive activity.
- You will not post content or take any action on Homes that infringes or violates someone else’s rights or otherwise violates the law.
- You will not post anyone’s identification documents or sensitive financial Information.
- You will not upload viruses or other malicious code including, without limitation, trojans.
- You will not do anything that could disable, overburden, or impair the proper working of Homes, such as a denial of service attack.
- You will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
- You will not solicit login information or access an account belonging to someone else.
- You will not facilitate or encourage any breaches of these Terms.
Registration and Account Security
- You need to open an account when you use most of Homes’ Services. You must provide the information specified by Homes to be able to open the account.
- Being a Homes user is a privilege. Homes may change its Services and suspend, terminate or restrict your ability to use Homes at any time if it believes that it is reasonably justified to do so within these Terms.
- We reserve the right to remove or reclaim a username that you select if we believe appropriate (such as if the username is offensive, is misleading or infringes other peoples intellectual property).
- You must maintain control of your account. You are responsible for what occurs on that account and must report any unauthorised use of your account to us.
- By using the Services you agree:
- You will not create an account for anyone other than yourself without permission.
- You will keep your contact information accurate and up-to-date.
- You will not provide any false personal information.
- You will not create more than one personal profile.
- You will not create another account without our permission if we suspend or terminate your account.
- If you are under legal age or are legally incapacitated in your country of residence, the country in which the ISP address used to open your account is located, or the country in which Homes is located you promise that you have consent from your parents / guardians to open the account and use the Services in accordance with our Terms.
- If the user is under the age of 13, you will be unable to disclose personal data through the website and the public Services. If we find out that any personal data we have collected is from someone under 13, we will automatically delete it.
Passwords and password security
- You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any profile or account you use to access the Services. You agree to keep your password safe at all times. You are responsible for the activities of all persons who use your password to gain access to your account.
- You must use your password in accordance with the password requirements specified on our site and our Terms.
- If you become aware of any unauthorized use of your password, your profile or your account, you agree to notify Homes immediately at http://[email protected] or such other address as Homes designates for the purpose of such notification.
- You may seek to provide Advertising on our Sites. All Advertising submitted to Homes must comply with our specifications, which in the absolute discretion of Homes, may change from time to time. Advertising that is not submitted in accordance with the specifications in place from time to time may be rejected. Homes has an absolute discretion as to whether it will publish such Advertising.
- If Homes accepts the advertising, Homes will use reasonable endeavours to publish the Advertising in the format and in the position agreed with you. However:
- Homes reserves the right to refuse or withdraw from publication any Advertising at any time that, in the opinion of Homes, is illegal, defamatory, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of Homes or any of its customers or vendors or is likely to infringe on the rights of third parties (even if the Advertising has previously been published by Homes).
- Homes.com.au reserves the right to vary the placement of Advertising within our Site or to change the format of Advertising. You must pay the full price for Advertising even if Homes varies the format or placement of the Advertising.
- Homes reserves the right to shrink or enlarge the Advertising by up to 10% without notice to you or any change to pricing for that Advertising.
- Homes may publish the Advertising under the heading “Advertising” or any other markers and formatting it determines in its absolute discretion particularly where such Advertising may be confused as editorial content.
- Except as required by law or in the circumstances expressly set out in these terms and conditions, Homes.com.au will not be liable for any loss or damage incurred by you arising from failure of Homes to publish Advertising in the format and position requested by you.
- You warrant to Homes that the Advertising does not breach or infringe:
- State or Commonwealth privacy legislation or anti-discrimination legislation;
- the Competition and Consumer Act 2010 (Cth) or equivalent State legislation;
- any copyright, trade mark, obligation of confidentiality or other personal or proprietary right;
- any law of defamation, obscenity or contempt of any court, tribunal or royal commission;
- any financial services law as defined in the Corporations Act 2001 (Cth); or
- any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).
- You warrant to Homes that if the Advertising:
- contains the price for consumer goods or services, the Advertising contains, as a single price, the minimum total price to the extent quantifiable at time of the Advertising in compliance with the component pricing provisions of the Competition and Consumer Act 2010 (Cth); and
- promotes a competition or trade promotion, you have obtained all relevant permits
and you indemnify Homes against any loss in connection with the Advertising.
- You acknowledge that Homes may at its discretion include additional features or inclusions in its Site at any time and from time to time.
- You must not resell Advertising space to any third party without the express written consent of Homes.
- You must pre-pay for Advertising if required by Homes. You authorise Homes, or any subsidiary or affiliate appointed by Homes, to instruct Stripe to debit your accepted credit card, debit card, Stripe Account or other payment method for any amounts you owe Homes (“Authorised Amounts”). Stripe may charge your accepted credit card, debit card, Stripe Account or other payment method on a one-time, sporadic, or recurring basis as these charges are incurred.
- You authorise and instruct Stripe, or any Stripe affiliate, to debit your accepted credit card, debit card, Stripe Account or other payment method for all and any Authorised Amounts and to pay Homes, or any subsidiary or affiliate appointed by Homes, such Authorised Amounts. You acknowledge and agree that the Authorised Amounts are variable and may be debited on various dates. You further agree that Stripe is not obliged to verify or confirm the amount that Homes presents to Stripe for the purpose of processing the payment of any Authorised Amount.
- Homes may require you to have an automatic payment method on file with your Homes account. Where there are insufficient funds in your accepted credit card, debit card or Stripe account balance and where you have designated Stripe or another payment method as your automatic payment method on your Homes account, you authorise Homes, or any subsidiary or affiliate appointed by Homes, to charge your automatic payment method (and, if Stripe is your automatic payment method, any payment methods or funding sources linked to your Stripe account) for all and any Authorised Amounts.
- Commercial customers providing Advertising to our Site may apply for a credit account. Homes may grant, deny or withdraw credit to you at any time in its absolute discretion. If you are granted a credit account, you must ensure that your customer account number is available only to those employees authorised to use it. You acknowledge that you will be liable for all Advertising placed under your customer account number.
- If Advertising is on account, payment must be within 7 days of date of the invoice. If you breach these terms, fail to pay for Advertising in accordance with the payment terms or suffer an Insolvency Event, Homes may (in its discretion and without limitation):
- cancel any provision of credit to you;
- require pre-payment for further Advertising;
- charge interest on all overdue amounts at the rate 2% above the Commonwealth Bank of Australia Overdraft Business Rate in respect of the period from the due date for payment until the date the outstanding amount is actually paid;
- take proceedings against you for any outstanding amounts;
- recover all our costs including commercial agency and legal costs on a full indemnity basis;
- withhold or cancel any discounts or rebates you may otherwise have been entitled;
- cease publication of further Advertising or suspend an agreement for Advertising not yet published until the breach is remedied;
- terminate an agreement for Advertising not published;
- exercise any other rights at law.
- Unless required by law, we will not refund any amounts paid in relation to, purchase of Advertising, applications, in-application activities or virtual items, even where:
- You have been the victim of scamming (however, we will do everything we reasonably can to assist you to recover your accounts).
- You have been banned from a Service for violating these Terms.
- We stop offering the Services or you decide to cancel your subscription or account.
- The cost of the Services depends on current exchange rates. We reserve the right to alter the amount or terms of our fees at any time. This will only apply to those who, following the change, take out new subscriptions or re-subscribe (their previous subscriptions having expired) and specifically agree to the new fees/terms.
- We reserve the right to charge you for any unauthorized use of your subscription by third parties.
- Homes may charge you for Advertising cancelled on less than 14 days’ notice or if the content is not submitted in accordance with the timetable set out in the specifications in place from time to time.
- For the purposes of issuing a tax invoice to you, Homes will measure online display and banner Advertising (including impressions delivered and clicks achieved) through its ad-serving systems. Results from your or third party ad-servers will not be accepted.
- Please be aware that if you are using a mobile service, your mobile carrier’s normal rates and fees, such as text messaging fees, will still apply. You will also be responsible for your own internet access fees to access the Services.
- The laws applicable to this “Payments” section shall be governed by the laws that govern the Stripe User Agreement applicable to your receipt of the Stripe Services. To the extent that there is any conflict between the terms of this Agreement and the Stripe User Agreement, the Stripe User Agreement shall prevail. By agreeing to these Terms you also agree to the Stripe terms.
Extent of Agreement
- You accept these Terms in full as a condition of your use of any Service. Each time you use a Service you confirm your agreement to those terms and conditions.
- Homes may change any term or condition and add any new term or condition at any time and from time to time for any reason it wishes and without specifying a reason. Please check the terms and conditions whenever you use any Service.
- Unless otherwise agreed in writing by Homes, your agreement with Homes will always include, at a minimum, the terms and conditions set out in this document as amended from time to time in accordance with this document (as amended). These are referred to as the “General Terms”.
- Your agreement with Homes will also include the terms and conditions of any additional provisions applicable to the Services (or any one or more or all of them), in addition to the General Terms. All of these additional provisions, as amended from time to time, are referred to as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your intended use of or your use of, that Service.
- The General Terms, together with the Additional Terms, form a legally binding agreement between you and Homes in relation to your use of the Services, as applicable, whether or not you subscribe, and whether or not we receive any monetary amount from you, a user or others. IT IS IMPORTANT THAT YOU TAKE THE TIME TO READ THE GENERAL TERMS AND THE ADDITIONAL TERMS CAREFULLY. The General Terms as amended from time to time together with the Additional Terms as amended from time to time are referred to collectively as the “Terms”. IF YOU DO NOT AGREE WITH ANY PART OF ANY TERM OR CONDITION, DO NOT USE ANY SERVICE.
- In the Terms:
- “Advertising” includes text, images and video submitted for publication and content or information relating to published advertisements.
- “Information” includes facts and other information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) about you or which you may have access to as part of, or through your use of, the Services, including actions you take.
- “content” means anything you post on or in relation to a Service that would not be included in the definition of “Information.”
- “data” includes content and Information that third parties can retrieve.
- Insolvency Event occurs where:
- a natural person and commits an act of bankruptcy; or
- a body corporate cannot pay its debts as and when they fall due or enters an arrangement with its creditors other than in the ordinary course of business or passes a resolution for administration, winding up or liquidation (other than for the purposes of reorganisation or reconstruction); or has a receiver, manager, liquidator or administrator appointed to any of its property or assets or has a petition presented for its winding up.
- “post” means post on Homes or any Service or make available to Homes or third parties (such as by using a Service).
- “use” means use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.
- “Services” means all browsers, products including Advertising, software, applications, developer platforms, gaming technology, services and web sites in each case provided by Homes. A reference to the “Services” is a reference to one or more or all of the Services, as the case may be.
- “stop” or “stopping” includes all or any of locking, temporarily or permanently banning, or temporarily or permanently muting, and/or restricting access to any one or more or all Services.
- If there is any contradiction between the General Terms and the Additional Terms, then the Additional Terms shall take precedence in relation to the relevant Service.
- Before you continue, you should print off or save a copy of the General Terms for your records.
Accepting the Terms
- You accept the Terms by:
- clicking to accept or agree to the Terms, where this option is made available to you by Homes in the user interface for any Service; or
- by actually using the Services. In this case, you understand and agree that your use of the Services is acceptance of the Terms.
Offer to obtain a Service
- By submitting your order you are making an offer to subscribe to the relevant Services. Your offer is accepted and a binding contract occurs when we send a message to your account mail inbox confirming your subscription to that Service or that Homes accepts the Advertising or issues you a tax invoice for that Advertising or Service.
- Homes will do its best to maintain operation of the Services and rectify faults as quickly as possible. We may have to suspend operation of the Services without notice for repair, maintenance, improvement or other technical reason. If so, we will do our best to ensure that the suspension is as short as possible. We do not accept responsibility for such suspensions or for any interruption or error caused by circumstances outside our reasonable control.
- Homes does not guarantee that the Services will work with any particular computer equipment or in conjunction with any particular software or connectivity services. We do not accept responsibility for such equipment, software or services.
- Homes and the Services may include links to internet sites or other technologies supplied by third parties including sites / technologies which enable you to pay by means of payment methods provided by third parties. We make no promises about those sites or their content, products or services as these are outside our reasonable control.
- Homes is not liable for loss or damage from an internet or telecommunications failure.
Licence from Homes
- Once you have paid for the relevant Service, Homes gives you a personal, non-assignable and non-exclusive licence to use, for the relevant period, the Service.
- Until Homes receives cleared funds in respect of the purchase by you of the relevant Service, Homes reserves the right to stop (permanently or temporarily) your use of the Service. The relevant period of the licence is from the time the Service is first available for your use.
- Unless Homes has given you specific written permission to do so (which it may decline to do in its sole discretion), you may not assign (or grant a sub-licence of) your rights to use the Service or otherwise transfer any part of your rights to use the Service.
Use of the Services by you
- You agree to use the Services only for purposes that are permitted by:
- the Terms; and
- any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from Australia, the United States, the European Union or other relevant countries).
- We stop offering the Services or you decide to cancel your subscription or account.
- You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. You also agree that you may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part or it.
- You agree that you are solely responsible for, and that Homes has no responsibility to you or to any third party for, any breach of your obligations under the Terms and for the consequences, (including without limitation, any and every direct and indirect loss or damage, including consequential damage, which Homes may suffer) of any such breach.
Provision of the Services by Homes
- Homes may have subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”) providing the Services. You acknowledge and agree that Subsidiaries and Affiliates may provide the Services to you on these Terms.
- You acknowledge and agree that the form and nature of the Services which Homes provides may change from time to time without prior notice to you.
- You acknowledge and agree that Homes may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Homes’ sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Homes when you stop using the Services.
- You acknowledge and agree that while Homes does not currently have set limits on the number of transmissions you may send or receive through the Services, the usage of the Services or on the amount of storage space used for the provision of any Service, such limits may be set by Homes at any time, at Homes’ sole discretion.
- You agree and allow Homes to automatically download and install updates from time to time. You agree to receive such updates as part of your use of the Services.
- Without limiting, and in addition to, the other rights you have granted to Homes, you agree and understand that Homes, in performing the required technical steps to provide the Services to users, may:
- transmit or distribute your content and Information over various public networks and in various media; and
- make such changes to your content and Information as are necessary or desirable to conform and adapt that content and Information to the technical requirements of connecting networks, devices, services or media.
Content in the Services
- You should be aware that content and Information presented to you as part of the Services may be protected by intellectual property rights which are owned by third parties. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this content or Information (either in whole or in part) unless you have been specifically told in writing that you may do so by Homes or by the owners of that content or Information.
- You agree that you are solely responsible for, and that Homes has no responsibility to you or to any third party for, any content or Information that you create, provide, transmit or display while using the Services and for the consequences of your actions (including without limitation, any and every direct and indirect loss or damage, including consequential damage, which Homes may suffer) by doing so.
- You acknowledge and agree that Homes (and/or any person from whom, and/or any entity from which, Homes derives its rights) owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
- You have no right to use any of Homes’ trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
- You agree that you are responsible for protecting and enforcing rights in relation to any content and Information that you submit, provide, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that content and Information (whether those rights happen to be registered or not, and wherever in the world those rights may exist) and that Homes has no obligation to do so on your behalf.
- You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
- You agree that you will not use any trade mark, service mark, trade name, logo of any company or organisation in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos./li>
Language of the Terms
- The language of the Terms is English. Where Homes has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language version of the Terms will govern your relationship with Homes.
- If there is any contradiction between the English language version of the Terms and what a translation says, then the English language version shall take precedence.
Ending your relationship with Homes
- If you want to terminate your legal agreement with Homes, you may do so by:
- notifying Homes at any time; and
- closing your accounts for all of the Services which you use, where Homes has made this option available to you.
Your notice should be sent, in writing, to Homes at [email protected] or such other address as Homes designates for the purpose of such notification.
- Homes may at any time, terminate its legal agreement with you if:
- you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms);
- you have breached the spirit of the Terms
- you have created risk or possible legal exposure for Homes;
- Homes is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful);
- any person who or entity which provides a right to Homes which is relevant to Homes offering a Service or providing a Service to you, has terminated its relationship with Homes;
- Homes is no longer providing the Services to users in the country in which you are resident or from which you use the service; or
- the provision of the Services to you by Homes is, in Homes’ opinion, no longer commercially viable.
Homes may so terminate its legal agreement with you at any time after an event referred to in this clause has occurred.
- If Homes considers that any of the Terms have or may have been breached, or that there has been fraudulent, unlawful or abusive activity, or that it is necessary in order to prevent or stop any harm or damage to Homes, or to any Service, to other users or the general public, Homes at any time thereafter may stop any one or more Services and/or other things which it thinks are or may be connected, directly or indirectly, with the offender.
- If Homes limits your access to a Service (or all of the Services) or denies you access to a Service (or all of the Services) you are still bound by the Terms.
- To assist in preventing or remedying breach or potential breach of any of the Terms or any harm or potential harm or damage or potential damage to Homes, to any Service or to other users or the general public, Homes may and you consent to Homes automatically or manually monitoring, censoring (including rejection or removal of any content) and/or recording public or private chat or other activities in relation to any Service.
- When these Terms are terminated or otherwise come to an end all of the legal rights, obligations and liabilities that you and Homes have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this termination or cessation.
EXCLUSION OF WARRANTIES
- NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT HOMES’ WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND THE LIABILITY OF HOMES WILL BE LIMITED TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HOMES EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HOMES DOES NOT GUARANTEE THAT A SERVICE WILL BE SAFE OR SECURE. HOMES IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE HOMES, ITS DIRECTORS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, CONSULTANTS AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. You will not seek to enforce a claim in relation to something that you have released pursuant to this clause.
- HOMES WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR A SERVICE, EVEN IF HOMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOMES’ AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR A SERVICE WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS (AUD$100) OR THE AMOUNT YOU HAVE PAID HOMES IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, HOMES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW.
- IN PARTICULAR, HOMES, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
- INFORMATION WHICH YOU TRANSMIT WILL BE OR REMAIN SECURE;
- YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
- YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
- ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE OR WILL GIVE YOU THE OUTCOME EXPRESSED IN THE INFORMATION; AND
- THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOMES OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
LIMITATION OF LIABILITY
- SUBJECT TO CLAUSE 17.1, YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOMES, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA, CONTENT OR INFORMATION SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
- ANY CHANGES WHICH HOMES MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
- THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
- YOUR FAILURE TO PROVIDE HOMES WITH ACCURATE ACCOUNT INFORMATION;
- YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
- THE LIMITATIONS ON HOMES’ LIABILITY TO YOU IN CLAUSE 18.1 ABOVE SHALL APPLY WHETHER OR NOT HOMES HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
- To the extent that HOMES and ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS are able to limit the remedies available under the Terms, and subject to Clause 17 and the other provisions of Clause 18, HOMES and ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS expressly limit their liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Homes’ sole discretion):
- in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- in the case of services:
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
However, if you are considered a consumer under an Australian consumer protection law that applies to Homes, and you use any of the Services for personal, domestic or household use, this Clause 18.3 will not apply to you. For more information on Australian consumer protection laws, please visit www.accc.gov.au or the website of the fair trading agency in your state or territory in Australia, or consult with a legal practitioner.
- If you are a New Zealand resident and the New Zealand Consumer Guarantees Act 1993 would otherwise apply to you, you agree that the provisions of the Consumer Guarantees Act 1993 will not apply to the supply of the Services or to the Terms.
- You agree that application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to the Terms (by virtue of any law relevant to the Terms) is expressly excluded to the extent not prohibited by law.
No claims against third party payment associates
- You agree and understand that even if you have a right against a third party under law in relation to the method by which you seek to make or make a payment to in relation to the provision of a Service or in relation to the Service (or its failure, in whole or in part) you will not make any such claim, you hereby waive all your rights to make such a claim and you will only seek to make your claim to Homes. You will not seek to enforce a claim in relation to something that you have waived pursuant to this clause. The provisions of this clause contain to apply despite Terms being terminated or otherwise coming to an end.
- We respect local laws that apply to you.
- You consent to having your personal data transferred to and processed in any country of which Homes or one of its Subsidiaries or Affiliates is located.
- If you are located in a country embargoed by any country of which Homes or one of its Subsidiaries or Affiliates is located, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in any commercial activities on Homes.
- Homes will not provide the Services to you if you are a person barred from receiving the Services under the laws of Australia, the United States, the European Union or other countries including the country in which you are resident or the country from which you use the Services.
Indemnity by you
- If anyone brings a claim against Homes related to your actions, content or Information, you will indemnify, keep indemnified and hold Homes harmless from and against all damages, losses, and expenses of any kind (including legal fees and costs) related to such claim.
- Some of the Services may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of Information stored on the Services, queries made through the Services or other Information.
- The manner, mode and extent of advertising by Homes on the Services are subject to change without specific notice to you.
- In consideration for Homes granting you access to and use of the Services, you agree that Homes may place such advertising on the Services.
- The Services may include hyperlinks to other web sites or content or resources. Homes may have no control over any web sites or resources which are provided by persons, companies or entities other than Homes.
- You acknowledge and agree that Homes is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other content, Information or materials on or available from such web sites or resources.
- You acknowledge and agree that Homes is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
Changes to the Terms
- Homes may make changes to the General Terms or Additional Terms from time to time. When these changes are made, Homes will make a new copy of the General Terms available at http://www.homes.com.au/terms-conditions/ and any new Additional Terms will be made available to you from within, or through, the affected Services.
- You understand and agree that if you use the Services after the date on which the General Terms or Additional Terms have changed, you agree that your use is acceptance of the updated General Terms or Additional Terms.
Homes may assign
- Each and every right of Homes under and/or in relation to the Terms is freely assignable by it at any time and from time to time without your consent.
General legal terms
- Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person, company or entity. Your use of these other services, software or goods may be subject to separate terms between you and the person, entity or company concerned. If so, the Terms do not affect your legal relationship with these other persons, companies or entities, subject to clause 19 of these Terms.
- We appreciate your feedback and other suggestions about Homes. You agree and accept that we may use your suggestions without any obligation to compensate you for them.
- The Terms constitute the whole legal agreement between you and Homes and govern your use of the Services (but excluding any services which Homes may provide to you under a separate written agreement), and completely replace any prior agreements between you and Homes in relation to the Services.
- You agree that Homes may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
- You agree that if Homes does not exercise or enforce any legal right or remedy which is contained in or arises by reason of the Terms (or which Homes has the benefit of under any applicable law), this will not be taken to be a formal waiver of Homes’ rights and that those rights or remedies will still be available to Homes.
- If at any time, any provision (or part of a provision) of the Terms is or becomes illegal, invalid or unenforceable, in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions (and parts of a provision(s)), nor the legality, validity or enforceability of such provision (or such part of the relevant provision) under the law of any other jurisdiction, will in any way be affected or impaired, and only in that firstmentioned jurisdiction that provision (or part of the relevant provision) will be read down to the extent necessary to enable that provision (or part of the relevant provision) to be valid without affecting the rest of the Terms in respect of that jurisdiction though if not capable of being so read down then in that jurisdiction only shall be removed from the Terms without affecting the rest of the Terms in respect of that jurisdiction. The remaining provisions of the Terms in respect of that jurisdiction will continue to be valid and enforceable.
- You acknowledge and agree that each member of the group of companies of which Homes is the direct or indirect parent or is a direct or indirect subsidiary and each third party referred to in clause 19 shall be third party beneficiaries to the Terms and that each such member and each such third party shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them.
- The Terms, and your relationship with Homes under the Terms, shall be governed by the laws of the State of New South Wales, Australia without regard to its conflict of laws provisions. You and Homes agree to submit to the exclusive jurisdiction of the courts located within the State of New South Wales, Australia to resolve any legal matter arising from the Terms. Despite this, you agree that Homes shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.