TouchbaseOnline

The relationship between the Application Provider and you in connection with the Licensed Application and any other related services shall be governed by:

1. these Special Conditions; and
2. where the Licensed Application is provided to you through the Apple iTunesstore, or another means of electronic communication conducted through Apple or another provider, the Licensed Application End User License Agreement ("General Conditions"),

(collectively this "Agreement").

To the extent that any of these Special Conditions are inconsistent with the General Conditions (if applicable), these Special Conditions shall prevail.

Your use of the Licensed Application will constitute and evidence your unqualified acceptance of this Agreement.

Where you use the Licensed Application other than on an iPad or iPhone the following provisions of this Agreement do not apply: clause 2, clause 4.2, clause 10.6, clause 11.5, clause 14.3, clause 15, and clause 18.9.

Subject to clause 4.2 and the other provisions of this Agreement, the Application Provider grants you a revocable, personal, non-exclusive and non-transferable licence and right to use the Licensed Application.

Where you use the Licensed Application on any iPhone or iPad, then your licence to use the Application on any iPhone or iPad that you own or control is limited to a revocable, personal, non-exclusive and non-transferable licence and right to use the Licensed Application and as permitted by the Usage Rules set forth in the App Store Terms of Service.

Once you have downloaded the Licensed Application you will be required to enter a registration code and provide your personal details to the Application Provider. You must provide accurate, complete and up-to-date information as requested. It is your responsibility to inform the Application Provider of any changes to your registration information.

The Application Provider may grant you a number of user names and passwords (as specified in the Schedule) under this Agreement.

Subject to the terms and conditions of this Agreement, the Application Provider may also provide you with SMS services for time to time.

The provision of SMS services will be subject to the same conditions, warranties and representation made by the Application Provider in respect of the Licensed Application in this Agreement.

You acknowledge that where the Application Provider provides you with SMS services that the Application Provider cannot guarantee that an SMS will always be received by the intended recipient.

You may only use the Licensed Application for the purpose of providing estate agent services.

You must at all times comply with the terms and conditions of this Agreement.

You must not directly or indirectly:

1. copy, alter, modify, reverse engineer, translate, disassemble or de-compile any part of the Licensed Application;
2. encumber any of the rights granted under this Agreement;
3. grant any party a sub-licence to access or use the Licensed Application for any purpose;
4. distribute or resell access to or use of the Licensed Application to any person;
5. adapt, create derivative works of, or otherwise modify any part of the Licensed Application;
6. circumvent the operation of any part of the Licensed Application in any way;
7. use the Licensed Application in any way that:
   1. may result in a breach of a person's privacy or a misuse of third party confidential information;
   2. represents the Application Provider endorses, has reviewed or in any way agrees with the material communicated by you;
   3. is misleading or deceptive; or
   4. may affect the availability of the Licensed Application or causes interference to the normal operation of the Licensed Application; or
8. nor will you encourage, assist, or grant the right or ability to any other party to engage in conduct similar to that in this clause 6.3.

From time to time, the Application Provider may alter the Licensed Application. These alterations may, among other things have the effect of:

1. providing a means of using enhanced or added functionality; or
2. removing access to functionality that had previously been available.

You acknowledge that the Licensed Application is the subject of copyright and other intellectual property rights and that the Application Provider or its licensors are the owners of such intellectual property rights.

You must not at any time do or permit any act to be done that infringes those intellectual property rights.

The Application Provider warrants to you that it has the right to grant the licence(s) under this Agreement.

On becoming aware of an allegation that the Licensed Application infringes a third party's intellectual property rights, the Application Provider will:

1. take reasonable steps to obtain for you a right to continue using the Licensed Application; or
2. if proven modify the Licensed Application in order to avoid continuing infringement; or
3. if the solutions in either of the preceding paragraphs cannot be achieved using reasonable commercial efforts, the Application Provider may terminate this Agreement (or the relevant part of it) by written notice to that effect.

The parties acknowledge that, in the event of any third party claim that the Licensed Application or your possession and use of that Licensed Application infringes that third party's intellectual property rights, the Application Provider or its licensors, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.

Where you request the Application Provider to vary, amend or improve the Licensed Application any intellectual property subsisting in any variation, amendment or improvement to the Licensed Application shall be owned by the Application Provider, and the Application Provider may, at its discretion, grant you a non-exclusive irrevocable licence to use that variation, amendment or improvement.

This clause sets out to the Application Provider's and its licensors' entire obligations, and your only remedies in respect of any claim that your authorised use of the Licensed Application infringes the intellectual property rights of any party.

This clause 10 survives termination of this Agreement for any reason.

During the Term, the Application Provider will:

1. take reasonable steps to ensure the availability of the Licensed Application during the hours of operation specified in the user manual; and
2. provide you with telephone, e-mail or internet-based assistance with respect to the Licensed Application, through the Help Desk facility to which clause 11.2 refers.

The Application Provider will make available a Help Desk facility during the hours of operation specified in the user manual, the functions of which are as set out in the user manual, but include:

1. telephone or e-mail assistance in relation to functions and features of the Licensed Application;
2. guidance in the operation of the Licensed Application, and in the installation of any updates as they are made available; and
3. a means for you to report, and be provided with answers to inquiries by you about, problems or issues affecting the Licensed Application.

When reporting a problem or issue to the Application Provider, you will comply with the procedures and provide the information described in the user manual, and if the problem or issue is attributable to the Licensed Application or the Application Providers' systems, the Application Provider will use commercially reasonable efforts to rectify that problem or manage its effects.

The Application Provider is not required to provide support in relation to problems arising as a result of:

1. your failure to implement a current update;
2. you not using the Licensed Application in accordance with the user manual;
3. changes to your information technology systems or environment;
4. a failure by you to provide qualified and trained staff for the operation of your information technology systems and their use with the Licensed Application; or
5. accident, error, negligence, or misuse,

but if the Application Provider agrees to provide such support on your request, the Application Provider will be entitled to charge Support Fees for the provision of that support.

The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services in connection with the Licensed Application.

The Application Provider may invoice you, and you will pay the Application Provider:

1. Licence Fees;
2. SMS Fees; and
3. Support Fees.

If the Application Provider is required to attend your premises for any reason pursuant to this Agreement, you will reimburse Application Provider for reasonable transport and/or accommodation expenses.

Licence Fees and Support Fees may be invoiced monthly in advance. SMS Fees will be invoiced monthly in arrears.

SMS Fees are payable by credit card or direct debit to the Application Provider's nominated bank account, and, if required by the Application Provider, you will execute a direct debit authority in favour of the Application Provider and do anything else reasonably required to establish and maintain the credit card facility or direct debit facility during the term for the payment of the Fees owing from time to time to the Application Provider. The Application Provider's invoices are otherwise payable within the normal trading terms of the Application Provider, as conveyed to you, from time to time.

The Licence Fees applicable to the first 12 months of the Term are specified in the Schedule. Thereafter, the Application Provider may charge you for your use of the Licensed Application such amounts as published on the Website from time to time.

All amounts payable under this Agreement do not include any applicable GST, which may be charged in addition to those fees and charges where applicable. In that event, the Application Provider will render a tax invoice that complies with the law relating to GST. All monetary amounts specified in this Agreement are in Australian dollars and all payments are to be made in Australian dollars unless otherwise agreed.

If you fail to pay any invoice by the due date for payment, then without prejudice to Application Provider's rights under this Agreement or otherwise:

1. interest is also payable on the outstanding amount at 2% above the rate under section 2 of the Penalty Interest Rates Act 1983 (Vic) (which you must pay at the same time as the outstanding amount); and
2. by written notice to you, the Application Provider may suspend the provision of any services and/or your access to the Licensed Application until you pay the outstanding invoice and interest in full; and
3. you must also pay any dishonour fee or other expense incurred by the Application Provider as a result of any breach of this Agreement by you.

You acknowledge the confidentiality and the proprietary nature of the Application Provider's Confidential Information and that no right, entitlement or interest in that Confidential Information is extended to or conveyed to you, other than for the purposes contemplated by this Agreement. You undertake and agree that you will:

1. keep all of the Application Provider's Confidential Information confidential;
2. only use the Application Provider's Confidential Information for the purposes contemplated by this Agreement.

Clause 13.1 will not apply to Confidential Information of or relating to a party, to the extent that:

1. you are legally compelled to disclose that Confidential Information or the Confidential Information is required by a regulatory body;
2. the disclosure is only to those of its employees who have a need to know (and only to the extent that each has a need to know) and who have been directed to keep confidential that Confidential Information; or
3. the Confidential Information is publicly available (except due to breach of confidentiality).

You acknowledge that a breach of this clause 13 may cause the Application Provider irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, the Application Provider may seek and obtain injunctive relief against such a breach or threatened breach. In addition you will indemnify the Application Provider and keep the Application Provider indemnified from and against any loss arising as the consequence of a breach by you, your servants or agents, of this clause 13.

The obligations under this clause 13 survive termination of this Agreement for any reason.

You acknowledge that:

1. the Application Provider makes no warranty or representation that your use of the Licensed Application will comply with any applicable laws in respect of estate agency services;
2. the Licensed Application, will not be uninterrupted or error-free;
3. the performance of the Licensed Application (including response times) will depend on factors outside the parties' control including the design and performance of your Information technology systems, and the state of the relevant telecommunications networks and their interconnections and network congestion;
4. although the Application Provider will implement reasonable security procedures, it cannot warrant that unauthorised access to information and data cannot occur;
5. you have relied on your own independent assessment and judgment in determining whether the Licensed Application meets your technical and business requirements;
6. you are solely responsible for the accuracy, quality, integrity and legality of, and the method of collection of, any data submitted to the Licensed Application by you or your agents.

Except for the warranties expressly set out in this Agreement, to the extent permitted by the law, the Application Provider and its licensors expressly exclude all conditions and warranties whether express or implied, statutory or otherwise.

To the maximum extent permitted by any applicable law, Apple will have no warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Application Providers.

Except for undertakings to indemnify, in no event will the Application Provider be liable to you or any other party for any indirect, punitive, special, incidental or consequential loss in connection with or arising out of this Agreement or your access to or use of the Licensed Application (including for loss of profits, use, data, or other economic advantage), regardless of how it arises, whether for breach of this Agreement or on any other basis, and even if it has been previously advised of the possibility of such damage.

The Application Provider's liability arising out of or in connection with this Agreement or your access to or use of the Licensed Application (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which you or any other party contributed to the loss.

The cumulative liability of the Application Provider and its licensors for any breach of any conditions or warranties in this Agreement, and your sole and exclusive remedy in relation to such breaches will be limited to:

1. in the case of any goods supplied by or on behalf of the Application Provider in connection with the provision of the Licensed Application, at its option:

   1. replacing or repairing the goods, or supplying equivalent goods; or
   2. paying the cost of replacing or repairing the goods or acquiring equivalent software or goods; and/or

2. in the case of the Licensed Application, at the Application Provider's option:

   1. supplying the Licensed Application again; or
   2. paying the cost of having the Licensed Applications supplied again.

Subject to clause 14.6, in no event will the Application Provider and its licensors' total aggregate liability in respect of all claims arising under or pursuant to this Agreement (regardless of whether those claims arise out of a single event or a number of different events) exceed the amount paid to the Application Provider by you under this Agreement.

To the extent permitted by law, you will indemnify the Application Provider and its licensors, and their respective employees, agents and contractors (each an Indemnified Party) against any loss, damage or liability which any of them suffers or incurs as a result of:

1. a breach of this Agreement;
2. negligence, error or fraud by you or your employee(s), contractor(s) or agent(s); or
3. your relationship with any end user or customer; provided that your obligation to indemnify an Indemnified Party will be reduced to the extent that the loss, damage or liability suffered is caused by, or materially contributed to by, any unlawful act of the Indemnified Party.

This clause 14 survives termination of this Agreement for any reason.

This Agreement may be terminated by the Application Provider at its sole discretion by written notice to you or automatically without notice from the Application Provider if you fail to comply with any terms of this Agreement.

You may terminate this Agreement by uninstalling and deleting all copies of the Licensed Application provided to you pursuant to this Agreement.

On termination of this Agreement for any reason:

1. the Application Provider may invoice you for all services provided but not yet invoiced, and all unpaid moneys will immediately become due and payable;
2. the Application Provider may terminate your access to the Licensed Application; and
3. you will cease use of the Licensed Application and destroy all copies of the Licensed Application.

Termination of this Agreement is without prejudice to any other rights or remedies that a party may have under this Agreement or at law, and will not affect any accrued rights or liabilities of either party.

Contact details

The Application Provider, being propertydataonline Pty Ltd (A.C.N. 147 410 231 of 335 Camberwell Road Camberwell Vic 3124, may be contacted in regard to any questions or complaints using either: (a) Telephone Number 1300 303 383 or (b) email touchbase@reiv.com.au.

Amendments

The Application Provider reserves the right to amend the terms and conditions of this Agreement from time to time. Amendments will be effective immediately upon notification on this Website. Your continued use of the Licensed Application following such notification will represent an agreement by you to be bound by the terms and conditions as amended.

Assignment & Subcontracting

You must not transfer any right or liability under this Agreement without the Application Provider's prior written consent, except where this Agreement provides otherwise. The Application Provider may subcontract the provision of any services under this Agreement.

Waiver & Amendment

Failure, delay or neglect by a party to enforce a term of this Agreement is not to be construed as a waiver of that term or the party's rights, or a consent to, waiver of, or excuse for any other different, continuing, or subsequent breach. Any amendment to this Agreement has no force or effect, unless effected by a document signed by the parties.

Audit rights

The Application Provider may, by itself or an authorised representative, audit your records to confirm your compliance with the terms and conditions of this Agreement. The Application Provider and its authorised representatives will treat as confidential any confidential information that is contained in the records or other information provided by you during such audit, and only use such information for the purposes of ensuring your compliance with this Agreement, and enforcing the conditions of this Agreement.

Governing law

This Agreement and the licence granted under it, will be governed and construed in accordance with the laws of Victoria, Australia, regardless of the principles of conflict of laws thereof, and the parties submit to the exclusive jurisdiction of the Victorian courts over all disputes arising in connection with this Agreement.

Party acting for Related Corporations

1. If you enter into this Agreement on behalf of yourself and your other Related Corporations (such Related Corporations to be specified in writing in the Schedule, or otherwise agreed in writing by the Application Provider from time to time):
   1. you may use and access the Licensed Application, and may permit those nominated Related Corporations to do so, in accordance with this Agreement;
   2. in that event, you:
      1. enter into this Agreement on your own behalf and on behalf of those nominated Related Corporations, and you and those Related Corporations will be jointly and severally liable under this Agreement; and
      2. indemnify the Application Provider against any claims, actions, damages, losses, liabilities, costs (including legal costs on a full indemnity basis), expenses or payments that the Application Provider suffers, incurs or is liable for, whether or not contemplated by the parties, caused by any act or omission of the Related Corporation; and
   3. nothing releases you from any liability in your personal capacity.
2. You warrant that at the date of this Agreement that you have the full power and authority of your nominated Related Corporations to enter into this Agreement both on your own behalf, and for those nominated Related Corporations.

Severability

Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

Third Party Beneficiaries

The parties acknowledge and agree that Apple is a third party beneficiary of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.