FOLLOWIT WEBSITE USER TERMS AND CONDITIONS

AS OF 1 OCTOBER 2015

The following are the terms and conditions which govern a person’s use of this Website, including the Services. By registering to use or using the Website and Services, you accept and agree to abide by the terms of this Agreement. If you do not agree, you must not use the Website and Services.

This Website is operated by PushCom Residential (Australia) Pty LtdACN 602 103 097 trading as followit (‘followit”) on the world wide web.

The material on this Website is protected by intellectual property rightsand is used under licence by followitfrom PushCom Pty Limited ACN 168 619 074 (“PushCom”) and other intellectual property rights holders.

followitprovides this Website and the Services to you subject to the terms and conditions set out below, and as updated from time to time (“Agreement”). Any changes made by followit to this Agreement will not apply to any dispute of which followit had actual notice at the date the changes were made. By using, or continuing to use, this Website, you acknowledge and confirm that you have read and understood this Agreement, and agree to be bound by its terms and conditions from time to time.

You should immediately cease using this Website if you do not agree with the terms and conditions of this Agreement.

1. Definitions and interpretation
1.1 In this Agreement, including the recitals, unless the context otherwise requires, the following terms have the following meanings:
  • Business Day
  • Business Hours
  • Content
  • Force Majeure Event
  • Intellectual Property Rights
  • Moral Rights
  • Privacy Policy
  • Services
  • Third Party Rights
  • Unlawful or
    illegalt
  • Website
1.2 In this Agreement except to the extent that the context otherwise specifies:

(a) any term defined in the statement of the names and descriptions of the parties has the meaning there defined;

(b) reference to any legislation or any provision of any legislation includes any modification, amendment or re-enactment of the legislation or any legislative provision substituted for, and all legislation and statutory instruments and regulations issued under, the legislation;

(c) words denoting the singular include the plural and vice versa;

(d) words denoting individuals or persons include bodies corporate and trusts and vice versa;

(e) words denoting either gender include both genders;

(f) headings are for convenience only and do not affect interpretation;

(g) reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;

(h) reference to any document or agreement includes reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;

(i) where any word or phrase is given a definite meaning in this Agreement any part of speech or other grammatical form of that word or phrase has a corresponding meaning;

(j) reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

(k) reference to a time and date in connection with the performance of an obligation by a party is a reference to the time and date in Sydney, Australia, even if the obligation is to be performed elsewhere;

(l) a reference to a decision or determination includes an approval or consent;

(m) a reference to "includes" or "including" or words of a similar effect are not words of limitation; and

(n)a reference to a party to this or any other agreement includes that party's successor and permitted assignee.

2. Ownership of intellectual property & licence
2.1followit

(a)grants to you a limited revocable, non-exclusive non-transferable right to access and use the Website and the Services;

(b) has no ownership of any of your Content; and

(c)subject to sub-clause 2.2(d), may use your Content in connection with the Website and Services, or the promotion of any goods, services, use, purpose, or business whatsoever.

2.2You

(a)have no existing or future rights in the Website whatsoever (including any ownership, goodwill and Intellectual Property Rights), other than the personal rights of access and use of the Website and Services which are created and subject to termination pursuant to this Agreement;

(b)will use the Website and Services in accordance with these terms and conditions and in connection with intended purposesand use relating to Australian residential property listings, searches, followings and messaging;

(c)except for viewing, printing or accessing the Services, will not reproduce, adapt, edit, modify, reverse assemble, reverse compile, disassemble, combine in or incorporate into any other program, copy, transfer, distribute or store any of the contents, layout, computer software or code contained in any of the Services or Website in any way whatsoever or use any automated system or software to extract, crawl, scrape, cache or index data or content from the Website;

(d)by uploading any Content to the Website, you grant followit a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use the Content in any way, including, without limitation by:

(i)reproducing, changing, distributing, publishing, uploading, posting, transmitting, communicating, cropping, packaging, licensing or selling any part of the Content to any person;

(ii)marketing the sale of any goods, services, uses, business or purposes to any person whose details form part of the Content; and

(iii)permitting followit to authorise any other person to do anything referred to in sub-clauses (d)(i) or (ii) above;

(e)agree that links contained in the Website to other sites on the worldwide web, unless expressly stated otherwise:

(i)are owned and operated by third parties which are not under the control of followit;

(ii)are provided to other sites as a convenience to you only, and does not imply any endorsement by followit of the linked site; and

(iii)followit is not responsible for the material contained on those linked sites or for the data collection and use practices of the proprietors of such sites;

(f)consent to any act or omission which would otherwise constitute an infringement of your Moral Rights, and if you upload any Content to the Website in which any third party has Moral Rights, you will ensure that the third party also consents in the same manner;

(g)will not use the Services or Website in any manner which prejudices or is detrimental to:

(i)the goodwill or reputation of followit; or

(ii)rights of followit or any Licensor or other third party in the Services or Website;

(h)will be fully responsible for compliance with all laws, regulations, ordinances, mandatory and voluntary industry codes of conduct, practice, guidelines or standards, and similar instruments in relation to your use of the Services and the Website (whether on a private or business basis);

(i)will not use the Services or Website for any activity, or upload any Content, which would be considered unlawful, illegal, obscene, indecent, offensive, defamatory, pornographic, immoral, racial, encouraging of ethnic vilification or interference with another's privacy, infringing, harassing, or libellous in nature, or would be reasonably likely to bring any person or property reflected in the Content into disrepute;

(j)will refrain from uploading onto the Website any material, or use the Website in any way:

(i)which infringes the Intellectual Property Rights of any person; or

(ii)which is unlawful or violates any law;

(iii)which would transmit any software virus, worm, Trojan horse, or any other computer program designed to interfere with, destroy or disrupt the functionality of any hardware or software;

(iv)which would transmit Content in breach of the laws relating to the export or transmission of data from the country in which you reside; or

(v)which would interfere with, disrupt or attack the Website or any server connected to the Internet by any means;

(k)will not upload, post or transmit via the Website any Content which is false, misleading, deceptive or likely to mislead or deceive other users of the Website;

(l)will be responsible for all Content you upload or authorise the upload of to the Website;

(m)will not allow the Services to be:

(i)re-sold, assigned or re-distributed in any material form;

(ii)stored in any storage media; and/or

(iii)re-transmitted in any media;

(n)will be responsible for each and every access or use of the Website that occurs in connection with any username and password provided to or used by you, and followit is entitled to assume that such access is by you, or authorised by you, and you indemnify followit completely against any claim of loss or damage that results from wrongful, fraudulent or other access (using the correct account details or password) to your Website account.;

(o)will ensure the Services you have access to are protected at all times from unauthorised access, use or damage involving any person or matter in your control;

(p)are responsible for the security and integrity of your uploaded Content;

(q)will not attempt to gain unauthorized access to any other user’s account associated with the Website;

(r)will notify followit immediately on becoming aware of any unauthorised use or use of the Services or Website in a manner which would be a breach of the these terms and conditions;

(s)will keep any and all passwords, account names, tokens or log in identifications required to access the Services secure and confidential;

(t)will not share any username and password provided to you in connection with the Services with any other person;

(u)will refrain from:

(i)tampering with or hindering the operation of the Website;

(ii)introducing any virus to the Website;

(iii)changing any administration settings on any part of the Website;

(iv)using any automated device, software, process or means to access, retrieve, scrape, or index the Website or any Content on the Website;

(v)using any device, software, process or means to interfere or attempt to interfere with the proper working of the Website;

(vi)undertaking any action that imposes a burden which is, or makes excessive traffic demands on the Website which are, unreasonable;

(vii)using any Content on, or index,the Websites for a purpose of constructing or populating a searchable database of properties or messages or Content, or competing with followit in any manner; and/or

(viii)reproducing, republishing, retransmitting, modifying, adapting, distributing, translating, creating derivative works or adaptations of, publicly displaying, selling, trading, or in any way exploiting the Website or any Content, except as authorised by followit;

(v)will not use the Website to engage in, encourage, promote or provide instruction in relation to any illegal activity;

(w)will not use the Website to transmit any unsolicited bulk electronic messages or unsolicited commercial electronic messages (including "spam" messages);

(x)will not use the Website to impersonate any other person or otherwise misrepresent their identity;

(y)willnot make any reference to followit or the Website in any document or on any other website without the written consent of followit;

(z)consent to use of any personal information provided by you in accordance with the Privacy Policy;

(aa)will not allow any Content to be uploaded to the Website which:

(i)contains any disabling mechanism or protection feature designed to prevent its use or copying in any manner contemplated in this Agreement; or

(ii)includes any false, misleading or inapplicable metadata intended to or which has the effect of keyword "doping" or improperly altering search results;

(bb)will ensure all Content uploaded to the Website will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Website or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Website in any way; and

(cc)will not do anything to permit or authorise any other person to do any of the matters prohibited above in this clause.

2.3Further acts

followit and you agree to execute any further documents that are necessary to give full effect to the terms of this clause 2.

3. Copyright Act
3.1The provisions of clause 2.2 are subject to any rights arising pursuant to sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth).
4. Your Warranties
4.1You represent and warrant to followit that:

(a)you have the authority to enter and to perform your obligations under this Agreement; and

(b) once you accept the terms and conditions of this Agreement by using the Website, this Agreement constitutes your valid, binding and enforceable obligations in accordance with its terms.

4.2You represent and warrant to followit in relation to any Content you upload or authorise the upload of onto the Website that:

(a)you are the owner of that Content;

(b) the Content does not infringe any Intellectual Property Rights; and

(c)the Content does not infringe any applicable legislation or regulations of the Commonwealth of Australia or any State or Territory within Australia.

5. followit Not Liable
5.1followit does not warrant, guarantee or make any representation that:

(a)the Website, or the server that makes the site available on the world wide web, are free of software viruses;

(b)the functions contained in any software contained on the Website will operate uninterrupted or are error-free; and

(c)errors and defects in the Website will be corrected.

5.2followit may terminate access to any part or the whole of the Website at any time without giving any explanation or justification for the termination of access, and it will have no liability for any costs, losses or damages of any kind arising as a consequence of terminating access to the Website.
5.3You agree that Content posted on or uploaded to the Website represents the views and opinions of the user who posted that Content. followitmay monitor or review Content from time to time and reserves the right to:

(a)edit or remove any Content which violates this Agreement or any laws; and

(b)suspend or terminate the account of any user who breaches this Agreement,

at its sole discretion and without liability, however, followitis under no obligation to perform these activities and does not warrant that it will do so.

5.4You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of it accessing the Website.
5.5The Website and its entire contents, including the Services, are provided on an "as is" basis, and followitand its officers, employees, agents and contractors, to the fullest extent permitted by law:

(a)make no representation or warranty (either express or implied) as to the suitability or fitness of the Website (including any of the Services) for any purpose, merchantability, or the completeness, accuracy, reliability, security or availability of Website;

(b)do not accept any liability arising in any way for any errors in, or omissions from, the Website; and

(c)do not endorse and are not responsible nor liable for any Content.

5.6followitand its officers, employees, agents and contractors are not liable, to the fullest extent permitted by law, for any loss, damage, claim, expense, cost (including legal costs) or liability arising directly or indirectly from:

(a)the contents of, errors in or omissions from any Content;

(b)use or non-use (including inability to use) of the Website or Content; or

(c)reliance upon the Website, Content or other information contained in the Website;

(d)errors or omissions in the Website, or linked sites on the WWW;

(e)delays to, interruptions of or cessation of the services provided in the Website, or linked sites;

(f)defamatory, offensive or illegal conduct of any End User of the Website;

(g)the lack of completeness, accuracy, reliability or availability of any Content;

(h)you acting, or failing to act, on any Content or information contained on or referred to on the Website or any linked websites;

(i)you using or acquiring, or your inability to use or acquire, any service or product contained or referred to on the Website or any linked website; and

(j)you buying, selling, listing, or your inability to buy, sell or list or continue to do any of these things, in relation to any property,;

whether caused through negligence of followit, its employees or independent contractors, or through any other cause.

5.7The Website and the Services may contain a feature that will allow you to create work spaces to upload and save copies of Content made available by followit or by third parties. followit may access or disclose such Content to the extent necessary to comply with legal obligations including but not limited to an administrative or judicial proceeding. You are solely responsible for any uploaded Content and are prohibited from uploading Content that is defamatory, libellous, pornographic or obscene, unless such content is reasonably related to professional responsibilities. Access to such data may be subject to technical limitations such as storage limits, downtime for maintenance and third party service availability. followit is not responsible for backing up, or for any damage to or loss of, any Content uploaded by you.
6. Indemnities
6.1Your indemnity

You will at all times indemnify and keep indemnified followit, its officers, employees, agents and subcontractors (in this clause 6.1 referred to as "those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability (subject to clause 7) arose out of, in connection with, or in respect of:

(a)the occurrence of any event referred to in clause 8.1 in respect of you;

(b)uploading, publication of or distribution of any Content supplied by you;

(c)use of the Website by you of any part of the Website;

(d)any use or alleged use of the Website or upload of any Content under your username and password by any person (whether or not authorized); or

(e)any claim to the extent it is based upon a contention that any of the Content infringes Intellectual Property Rights of any third party.

7. No liability
7.1 You acknowledge and accept that, to the fullest extent permitted law, followit will be under no liability to you whatsoever, whether in:

(a)contract or tort (including, without limitation, negligence);

(b)breach of statute; or

(c)any other legal or equitable obligation,

in respect of any loss or damage (including, loss of profit, direct, indirect or consequential losses whatsoever) in respect of any of the matters referred to in clauses 5 or 6.1.

8. Breach and termination
8.1Termination by followit for cause

If:

(a)you are in breach of any of your obligations under this Agreement;

(b)a representation or warranty made by you is false, incorrect or misleading in a material respect when made (or deemed repeated);

(c)if you die or become bankrupt, insolvent (or similar event);

(d)the continued performance of the material obligations of a party under this Agreement contravening any applicable and relevant statute, ordinance, proclamation, rule, order, regulation, moratorium or decree of any governmental authority; or

(e)a Force Majeure Event occurs,

followit may immediately terminate this Agreement with notice to that effect.

8.2Termination for no cause

Either party may terminate this Agreement without cause at any time on 7 days notice to that effect.

8.3Obligation to inform

You shall notify followit as soon as practicable upon becoming aware, in relation to yourself, of the occurrence or continuation of an event listed in clause 8.1 above.

8.4Accrued rights

Termination of this Agreement will not affect any rights or remedies that may have accrued to the parties prior to termination or consequent upon termination.

8.5Consequences of termination

On termination of this Agreement:

(a)your rights to use of the Website (including all Services) under this Agreement are immediately terminated;

(b)any outstanding fees and charges which you are liable to pay in respect of this Agreement (such as indemnity amounts) shall become immediately due and payable together with interest on any overdue amounts;

(c)followit may remove all Content uploaded by you from the Website; and

(d)notwithstanding termination, followit shall have the right, subject to the licence in clause 2.2(d), to continue using the Content (whether or not it is removed from the Website).

9. Implied terms
9.1Subject to clause 9.2, any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
9.2Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, the liability of followit for any breach of such condition or warranty will be limited, at the option of followit, to one or more of the following:

(a)if the breach relates to goods:

(i)the replacement of the goods or the supply of equivalent goods;

(ii)the repair of such goods;

(iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)the payment of the cost of having the goods repaired; and

(b)if the breach relates to services:

(i)the supplying of the services again; or

(ii)the payment of the cost of having the services supplied again.

10. Modifications
10.1followit has the right to:

(a)(a) upgrade, amend, modify, restructure or discontinue any of the Services; and

(b)(b) amend, the terms and conditions of this Agreement,

and will provide you with details of such matters in the ordinary course of business. Your subsequent or continued use of the Website (including any Service) following the occurrence of the matters referred to in sub-clause (a) or (b) above shall constitute your acceptance and agreement in relation to these matters.

11. Assignment
11.1You may not assign, declare itself a trustee of, create any encumbrance in respect of or dispose of any of its rights and interests under this Agreement (each a “Prohibited Act”). Any attempt by you to undertake, execute, complete or perform a Prohibited Act shall be null, void, invalid, non-binding on and unenforceable against followit.
12. Force Majeure

followit is not liable for its inability to perform, or for any delay in performing, any of its obligations under this Agreement if that inability or delay is caused by a Force Majeure Event.

13. Relationship of the parties
13.1No partnership

This Agreement does not create any partnership, joint venture or agency relationship between you and followit.

13.2No representations of authority

You may not enter into any agreements or incur any liabilities on behalf of followit, and may not represent to any person that you have any authority to act on behalf of followit.

14. Non-merger
14.1None of the terms or conditions of this Agreement, or any act, matter or thing done under or by virtue of this Agreement or any other agreement, instrument or document, or judgment or order of any court or judicial proceeding, will operate as a merger of any of the rights and remedies of the parties under this Agreement, and those rights and remedies will at all times continue in force.
15. Waiver
15.1No waiver except by notice in writing

No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.

15.2No waiver of subsequent breaches

A waiver by one party under clause 15.1 does not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.

15.3No waiver by extension or forbearance

A party does not waive its rights under this Agreement because it grants an extension of time to the other party.

16. Severability
16.1Part or all of any clause of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
17. Notices
17.1Any notice given by followit under this Agreement must be in writing and addressed to the recipient at the email address nominated by you at registration.
17.2Any notice given by you under this Agreement must be in writing and addressed to followit at Level 6, 80 William Street East Sydney NSW 2011.
18. Consent
18.1Where this Agreement provides that any particular transaction or matter requires the consent, approval or agreement of any party, that consent, approval or agreement may be given subject to such terms and conditions as that party may impose. followit may withhold consent to any particular transaction or matter at its own discretion.
19. Choice of jurisdiction and law
19.1This Agreement will be governed by and construed in accordance with the law from time to time in force in New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that state.
20. Survival
20.1Each party agrees that the provisions of:

(a)clauses 2.1(c), 2.3, 5.6, 5.7, 6.1, 7.1, 8.4, 8.5 and 20; and

(b)sub-clauses 2.2(a), (c), (d), (f), (l) and (y),

will survive termination of this Agreement and will continue in force.

20.2This Agreement shall, subject to its other terms, be binding on and shall continue for the benefit of the successors, assigns, personal representatives and trustees (as the case may be) of each of the parties.

YOU ACKNOWLEDGE, CONFIRM AND AGREE THAT:

(A)YOU HAVE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS; AND

(B)THESE TERMS AND CONDITIONS OF THE AGREEMENT ARE THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN YOU AND FOLLOWIT WHICH SUPERSEDE ANY AND ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND FOLLOWIT RELATING TO THE MATTERS CONATINED IN THIS AGREEMENT.