(a) This agreement is between Commercially Pty Ltd, ACN 133 025 635 (“Commercially”) and the person accessing, using or registering an Account on the Website, and that person’s Associated Entities (“you” and “your”).
(b) This agreement comprises these Terms & Conditions, the Privacy Policy, and any other document specified in these Terms & Conditions (“Agreement”).
(c) This Agreement sets out the rights and obligations between Commercially and you, governing Commercially’s provision and your use of the Website.
(d) By accessing or using the Website or registering an Account with Commercially, you warrant and represent that that you have read, understood and agree to comply with the terms of this Agreement, including any changes Commercially makes from time to time in accordance with clause 14.
(e) You further warrant that you are at least 18 years of age or otherwise have received your parent or guardian’s consent to use this Website or create an Account.
(a) The Website is designed to connect purchasers and vendors (including agents of vendors) of commercial properties and facilitate the sale process, however the Website acts only as an intermediary facilitator. The property sale is governed by a separate contract between the parties to the sale contract. You acknowledge that Commercially does not act as agent, broker or insurer for any Website user, and does not guarantee the legality of any property sale, nor that any property will correspond to the information provided on the Website.
(b) You agree that you are solely responsible for deciding to enter into a property sale contract. You acknowledge that you are responsible for verifying and ensuring that the Website user who you intend on transacting with has all required approvals and legal authorities. Commercially is not liable for any financial expenses you incur in respect of a property sale contract.
In this Agreement:
(a) "Agent" means a Licensed real estate agent employed or contracted by you or an Associated Entity;
(b) "Agent Profile" means a profile page for an Agent with the features described on the website at www.agent.Commercially.com.au;
(c) "Associated Entities" means Agents, franchisees, individuals, companies, and/or data listing aggregators that have authorised you to provide Listing Content to third parties including Commercially;
(d) “Dispute Notice” is defined at clause 24 (Dispute Resolution);
(e) "Harmful Code" means computer code or routine that is harmful, destructive, disabling or that assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data;
(f) "Commercially" means Commercially Pty Ltd (ACN 133 025 635);
(g) “Force Majeure Event” is defined at clause 31;
(h) "Intellectual Property Rights" means all intellectual property rights, including the following rights:
(i) current and future registered and unregistered rights in respect of patents, copyright, circuit layouts, designs, trade and service marks (including goodwill in those marks), trade secrets, know-how, inventions, discoveries, domain names, trade names, any right to have confidential information kept confidential, and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967;
(ii) any application or right to apply for registration of any of the rights referred to in paragraph (i); and
(iii) all rights of a similar nature to any of the rights in paragraphs (i) and (ii) that may subsist anywhere in the world (including Australia).
(i) "Licensed" means licensed to practice as a real estate agent in Australia under the applicable state or territory legislation;
(j) "Listing Content" means information relating to properties you have listed for sale or rent, including images, video, text, data and/or other materials, uploaded to Commercially through property listing data feeds or by direct upload from the agent;
(k) "Premier Agent Account" means an Account with the additional features described on the website at http://premier.commercially.com.au;
(l) “Security Incident” is defined at paragraph 19.4 (No availability or functionality guarantee).
(m) "Third Party Website" means a website controlled by a person other than Commercially and which is linked to the Website; and
(n) "Website" means the Commercially websites at www.commercially.com.au, www.agent.commercially.com.au and http://premier.commercially.com.au.
This Agreement starts on the date that you first provide Listing Content to Commercially, and continues until the Agreement is terminated in accordance with clause 21 (Termination).
You agree:
(a) not to bring any claim against Commercially in relation to any act or omission occurring in relation to Listing Content or property advertised on the Website, except that the foregoing does not limit your ability to bring a claim against Commercially for its negligence or other breach of this Agreement;
(b) that any claims you have in relation to the sale of a property or to any Listing Content must be made against the relevant Website user and not against Commercially;
(c) to assume all liability for any risk arising from entering or facilitating a contract to purchase or sell property, or from your use of any information on the Website;
(d) that entering into, or facilitating as agent, a contract to purchase or sell property will not breach any agreements that you have entered into;
(e) that you are the cardholder of the credit or debit card used to pay the Website fees;
(f) to comply with any community guidelines published by Commercially on the Website;
(g) to compensate Commercially fully for any loss or damage that Commercially suffers as a result of any claims brought by a third party against Commercially due to your breach of this Agreement;
(h) to cooperate with Commercially in good faith, and to assist with any reasonable requests for the purposes of any investigation undertaken by Commercially or a legal authority regarding misuse of the Website;
(i) not to provide to Commercially any false, incomplete or misleading information, including information provided in your personal details, Listing Content or elsewhere on the Website;
(j) not to use language on the Website, including in Listing Content, that is inappropriate, profane, defamatory, infringing, obscene, indecent, unlawful, likely to offend, insult or humiliate others based on ethnicity, race, gender, sexuality, age or any disability or that otherwise vilifies any person or incites violence or hatred;
(k) not to defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others on the Website, including violating rights relating to privacy and publicity;
(l) not to send or publish material on the Website containing sexual acts, nudity, pornography or that is of a violent nature;
(m) not to use the Website to sell or advertise any goods or services;
(n) not to use the Website to send unsolicited commercial, or otherwise inappropriate, communications;
(o) not to engage in any other activity on the Website that Commercially decides, in its discretion, is not compatible with the Commercially community values, or which might affect the security of the Website or its users;
(p) not to solicit money, personal or payment information, or passwords from any other Website user; and
(q) not to carry out or encourage any unlawful activity on the Website.
4.1 All Listing Content must:
(a) be up-to-date, complete, accurately describe the applicable properties and not be misleading or deceptive in any manner;
(b) advertise commercial and industrial properties only (not residential properties);
(c) where the Listing Content displays generic or showroom photos, clearly label such photos as generic or showroom photos;
(d) comply with the Listing Content Guidelines applicable to the type of property or listing which is the subject of the Listing Content; and
(e) comply with all applicable laws and regulations including (without limitation) those relating to privacy, misleading and deceptive conduct, and defamation.
4.2 All Listing Content must not:
(a) infringe the rights (including Intellectual Property Rights) of any person;
(b) be offensive or likely to cause offence, or be otherwise inappropriate having regard to the purpose of the Website;
(c) include any photo, image or personal information of another person without their consent;
(d) be otherwise inappropriate, having regard to the commercial purposes of the Website;
(e) advertise more than one property; and
(f) contain financial, legal, medical or other professional advice.
4.3 All Listing Content must be provided to Commercially:
(a) in the data feed format advised by Commercially to you from time to time; and
(b) free from Harmful Code.
4.4 You must ensure that your Listing Content at all times accurately reflects the status of a property. Particularly, within 72 hours of a contract being entered into in respect of a property you must either update the Listing Content for that property to record the property's new status, or remove the applicable Listing Content from the Website.
4.5 You acknowledge that Commercially may, in its sole discretion and without liability to you:
(a) remove or modify your access to any Listing Content; and
(b) remove, modify, reformat any Listing Content.
4.6 You acknowledge that Listing Content is provided by third party users of the Website, and that Commercially does not monitor or approve Listing Content prior to its publication on the Website. You agree that Commercially is not responsible for the accuracy or otherwise of any Listing Content, and you agree that any views expressed are that of the third party only. You agree that you rely on information provided by Listing Content at your own risk.
4.7 Commercially reserves the right to determine the placement of Listing Content, and does not promise that certain property listings will appear in a certain position in the search results.
You acknowledge that the purpose of the Website is to display the Listing Content together with functionality and other information permitting users to search for properties. Accordingly, by providing your Listing Content to Commercially:
(a) you grant to Commercially a perpetual, irrevocable, non-exclusive, fully paid up, transferable and worldwide license to use, reproduce, publish, publicly perform, display, communicate, distribute, adapt, translate, modify, and create derivative works from your Listing Content, anywhere in the world in any existing or future form for any purpose; and
(b) you grant each user of the Website a non-exclusive licence, for their private and non-commercial use only, to access, use and reproduce (for example, to print and download) your Listing Content as permitted by the User Terms and Conditions.
6.1 In consideration of the licence granted in paragraph 5 (Licence) and subject to the terms of this Agreement, Commercially agrees to make your Listing Content available to users through the Website, in accordance with the terms of this Agreement and in the manner and form set out in the Listing Content Guidelines. To avoid doubt, you agree that the licence granted in paragraph 5(a) (Licence) permits Commercially to modify the Listing Content, in its sole discretion and for any reason, prior to displaying it on the Website. Without limiting the previous sentence, Commercially may modify your Listing Content to comply with the Listing Content Guidelines, to enable users to access it on mobile and tablet devices, for stylistic reasons, or for other reasons considered appropriate by Commercially.
6.2 Commercially may at any time, without liability to you or an Associated Entity, in its sole discretion and for any reason, remove, modify, or suspend access to any or all Listing Content, or decline to use any Listing Content, without notice. Without limiting the previous sentence, Commercially may remove, modify, or suspend access to, or decline to use, any or all Listing Content if it considers that the Listing Content does not comply with paragraph 4.1 (Listing Content), if it is required to do so by a regulatory body or any relevant authority, or for other reasons considered appropriate by Commercially.
7.1 You must not, at any time:
(a) alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose;
(b) adapt, translate, reverse engineer, dissemble or decompile the Website or any part of the Website;
(c) access, retrieve, scrape or index the Website or any part of the Website;
(d) directly or indirectly, introduce or permit the introduction of, any Harmful Code, or in any manner whatsoever corrupt, degrade or disrupt the Website;
(e) remove any copyright, trademark, electronic rights management information or other proprietary rights notices contained in or on the Website;
(f) use any robot, spider, site search/retrieval application, offline reader, or other device to retrieve or index any part of the Website;
(g) collect any information about users of the Website (including usernames and/or email addresses) for any purpose other than the purposes of the Website;
(h) reformat or frame any part of the web pages that are part of the Website;
(i) create or transmit unwanted electronic communications such as 'spam', whether commercial in nature or not, to other users of the Website or otherwise interfere with a user's enjoyment of the Website;
(j) use the Website to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that which is deemed threatening or obscene;
(k) act in a way that, in Commercially's sole opinion, imposes or may impose what Commercially deems, in its sole discretion, to be an unreasonable or disproportionately large load on Commercially's IT infrastructure;
(l) use the Website, intentionally or unintentionally, to violate any applicable local, state, national or international law or in any manner which Commercially deems, in its sole discretion, to not be reasonable or for the Website’s primary intended purpose; or
(m) collect or store personal data about other users in connection with the prohibited activities described in this paragraph 7.1.
7.2 Notwithstanding paragraph 7.1, Commercially permits public search engines to use spiders or other search and retrieval applications to copy materials from the Website for the sole purpose of creating publicly available search indices of the materials, but not caches or archives of materials from the Website.
8.1 You may register an Account by submitting the required information through the Website or, where the required information has been provided directly to Commercially, by logging into your Account for the first time. The required information may include your and each Associated Entity's name, ABN (if applicable), contact details, billing details, and any other information reasonably required by Commercially to verify the identity or qualifications of you or an Associated Entity. If any of your Account information changes you must promptly notify Commercially in writing of the changes.
8.2 You or an Associated Entity may register an Agent Profile for any Agent, where the Agent has given their approval for such registration. You may also permit an Agent to register their own Agent Profile. To avoid doubt, any Agent who is permitted to register an Agent Profile, or for whom an Agent Profile is registered, must be (and remain at all times while their Agent Profile is operational) duly Licensed.
8.3 You must ensure that all usernames and passwords provided by Commercially are kept confidential and secure at all times. You are responsible for all activity that occurs under or through your Account, including any activity of an Associated Entity or Agent. You agree to notify Commercially as soon as possible on becoming aware of any unauthorised use of your Account.
8.4 There is no charge for registering a standard Account or Agent Profile.
8.5 You may cancel your Account or any Agent Profile at any time by notifying Commercially in writing.
8.6 You must not register an Account several times.
8.7 You must not impersonate or create an Account for any person other than yourself.
8.8 You agree to provide verification of your identity on request by Commercially.
8.9 You are responsible for keeping your Account details up to date, and you acknowledge that Commercially will not be responsible for any incorrect or fraudulent details provided.
9.1 You can register for a Commercially 'Premier Agent Account' for you or any Associated Entities by submitting your information at http://premier.commercially.com.au. Information about the features of a Premier Agent Account is set out on the Website.
9.2 By registering a Premier Agent Account you agree to pay the applicable fees for a Premier Agent Account, as set out on the Website or as otherwise agreed in writing with Commercially.
9.3 A Premier Agent Account commences on the date that Commercially accepts your offer to register a Premier Agent Account and will continue until you cancel that Premier Agent Account (as set out in paragraph 9.4) or this Agreement is terminated.
9.4 You may cancel a Premier Agent Account (but still retain a standard Account) at any time by notifying Commercially in writing. Commercially will not refund any amounts prepaid for a Premier Agent Account.
10.1 All prices listed on the Website are in Australian Dollars and are exclusive of all applicable taxes including GST.
10.2 You must pay all amounts required under this Agreement within 30 days from receiving our invoice. If you do not pay all amounts required under this Agreement, in addition to any rights or remedies that Commercially may have under this Agreement or at law, Commercially may suspend or terminate your Account and any Agent Profiles, and remove any Listing Content from the Website.
10.3 Credit card numbers are NOT stored in Commercially’s database. We use third party payment processing services and payment gateway providers (PayPal and recurly.com) who encrypt and store your credit card details to perform monthly recurring invoicing. We have access only to the billing name, address and last 4 digits to verify the card that was used.
11.1 Words or expressions used in this paragraph 10 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this paragraph.
11.2 Any consideration payable or to be provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as 'GST inclusive', does not include any amount on account of GST. If GST is payable on any supply made under or in connection with this Agreement (not being a supply the consideration for which is specifically described in this Agreement as 'GST inclusive'), the recipient of the supply must pay to the supplier, an additional amount equal to the GST payable on the supply provided that the supplier gives the recipient a tax invoice for the supply.
11.3 If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST group that party is a member of (as the case may be), is entitled for that loss, cost or expense.
12.1 Nothing in this Agreement operates to assign or otherwise transfer any right, interest or title in or to any Intellectual Property Rights (including moral rights) of a party, except as expressly stated.
12.2 You (or your third party licensors including applicable Associated Entities) retain all rights, title and interests (including Intellectual Property Rights) in the Listing Content. You must ensure you have the lawful right, including all necessary licences, rights, consents and permissions, to authorise Commercially to display your Listing Content (whether provided by you or an Associated Entity) for the purposes set out in this Agreement, in accordance with the warranty in paragraph 14.1(a) (Warranties).
12.3 You grant Commercially a world-wide, royalty free, perpetual, irrevocable, transferrable and non-exclusive licence to:
(a) use, reproduce, modify, adapt, communicate, display, perform, store and distribute your Listing Content for the purposes of performing Commercially’s obligations under this Agreement and otherwise in connection with Commercially’s business purposes (including for marketing related purposes);
(b) create statistics, databases and compilations for use by Commercially and third parties;
(c) permit any person to assist Commercially to do any of the things referred to in this paragraph; and
(d) sub-licence any of the rights granted to Commercially under this paragraph to any person.
Without limiting the foregoing, you unconditionally consent to such use of your Listing Content by Commercially that would, but for your consent, constitute a breach of your moral rights.
12.4 You acknowledge that you are solely liable for any losses, damages, claims and expenses (including legal costs) resulting from any Listing Content that violates third party Intellectual Property Rights or moral rights.
12.5 Commercially (or its third party licensors) owns all rights, title and interests (including Intellectual Property Rights) in the Website (excluding the Listing Content). Nothing in this Agreement conveys to you any rights, title or interests in the Website.
12.6 You grant Commercially the right to use the name you submit with your Listing Content.
12.7 You acknowledge that the Website, including any part thereof, comprises part of Commercially’s Intellectual Property Rights. You agree to only download the Website for private and non-commercial use.
12.8 The Website may contain trademarks, logos, service names and trade names of Commercially and third parties which may be registered or otherwise protected by law. You are not permitted to use any trademarks, logos, service names or trade names appearing on the Website without the prior written permission of Commercially.
This Agreement is subject to the Commercially Privacy Policy. Commercially will only use and disclose personal information you submit via the Website in accordance with the Commercially Privacy Policy, located on the Website. You consent to Commercially’s collection, use and disclosure of your personal information in accordance with the Commercially Privacy Policy. You must have all necessary consents and approvals for any personal information that you provide to us.
14.1 You represent and warrant that:
(a) you will comply at all times with this Agreement, and any directions that Commercially may give you relating to your use of the Website at any time;
(b) you will comply with all laws applicable to the Listing Content;
(c) you have the authority and lawful right to provide the Listing Content to Commercially and to grant the licences set out in paragraph 5 (Licence), including that you have obtained and will maintain during the term all necessary licences, rights, consents, and permissions:
(i) permitting you to act as a Licensed real estate agent or agency (as applicable); and
(ii) from the owner of a property included as Listing Content;
(d) you will not submit any Listing Content that does not comply with paragraph 4.1 (Listing Content);
(e) Commercially’s use of the Listing Content as contemplated by this Agreement will not infringe the rights (including Intellectual Property Rights) of any person;
(f) your use of the Website will comply at all times with this Agreement and any directions published from time to time by Commercially on the Website; and
(g) you accept all liability for any unauthorised use of your Account except for unauthorised use resulting from any negligent act or omission legally attributable to Commercially.
14.2 To the extent that Commercially’s liability for breach of an implied warranty or condition cannot be excluded by law, Commercially’s liability will be limited, at Commercially’s option to:
(a) in the case of services supplied or offered by us, the re-supply of those services or the payment of the cost of having those services re-supplied; and
(b) in the case of goods supplied or offered by us, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of having the goods replaced or the payment of the cost of having the goods repaired.
14.3 You warrant that you have not relied on any representations or warranties by us in relation to this Agreement or the Services other than those in this Agreement.
15.1 Commercially may change the terms of this Agreement as follows:
(a) if Commercially reasonably considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the terms of this Agreement as amended on the Website; or
(b) if Commercially reasonably considers that the change is likely to have a significant detrimental impact on you, it will make the change 30 days after it has notified you of the change by displaying a notice on the homepage of the Website.
15.2 If you do not accept a change made by Commercially to the terms of this Agreement, your only remedy (except as set out elsewhere in this Agreement) is to immediately:
(a) cease providing Listing Content; and
(b) cancel your Account by notifying Commercially in writing.
15.3 If you continue to access or use the Website after Commercially changes the terms of this Agreement, then you are taken to have agreed to such amendments. You are responsible for checking all amendments from time to time.
Any information provided by Commercially on this Website is of a general informational nature only, and is provided solely for information purposes. Commercially does not guarantee the accuracy of any information provided, and such information does not constitute advice or recommendations, nor is intended to be the sole information resource guiding any purchase or sale decision. You are responsible for undertaking any research and analysis required before agreeing to a property purchase or sale.
You acknowledge that you may be able to access Third Party Websites from the Website. You agree with Commercially that:
(a) Commercially makes no representations, and has no liability, to you arising from or in connection with any use of any Third Party Website or any information or other content accessible to you from any Third Party Website; and
(b) your access to and use of any Third Party Website and information and other content available on it is entirely at your own risk, may be governed by terms imposed by the operator of the Third Party Website.
18.1 You are granted a limited, non-exclusive right to create a text hyperlink to the Website for non-commercial purposes, provided the link does not:
(a) portray Commercially or any of its products or services in a false, misleading, derogatory or otherwise defamatory manner; and
(b) link to a site that contains any adult or illegal material or any material that is offensive, harassing or otherwise objectionable including pornographic, hateful, racially or ethnically offensive material.
18.2 This limited right may be revoked at any time.
18.3 You may not use a Commercially logo or other proprietary graphic of Commercially to link to the Website without the express written permission of Commercially.
19.1 Commercially will provide the Website to you with due care and skill, and by suitably qualified personnel. However, Commercially does not make any representations or warranty about the availability or functionality of the Website or that the Listing Content will be displayed in a particular form, or at all.
19.2 Commercially does not warrant that the Website will be error-free, virus-free, suitable for you or compatible with your equipment. You acknowledge and agree that you use the Website entirely at your own risk.
19.3 The features and functionality available on the Website may vary depending on the device or application that is used to access it (e.g. mobile vs desktop).
19.4 Commercially does not take responsibility for any actions or omissions by other users of the Website, or for the accuracy or otherwise of any Listing Content.
19.5 Commercially does not represent or guarantee that the Website will be free from loss, corruption, interference, attack or other intrusion (“Security Incident”), and you release us from any liability relating to any such Security Incident.
19.6 To the maximum extent permitted by applicable law, Commercially excludes all liability to you, and each Associated Entity, whether in contract, tort (including negligence) or otherwise, including any guarantees, terms, warranties or representations arising from or in connection with:
(a) any unavailability, or failure in the functionality, of the Website;
(b) any third party website;
(c) the use (or lack of use) of the Listing Content by Commercially; or
(d) any circumstance beyond the reasonable control of Commercially
(e) the quality, completeness, accuracy or suitability of the Website;
(f) the fitness for purpose of the Website;
(g) any links to or from the Website;
(h) the properties advertised on the Website; and
the safety of Website users’ computer systems.
20.1 Subject to paragraph 20.2 and to the maximum extent permitted by law, Commercially excludes all warranties and liabilities or other terms implied or conferred by contract, tort (including negligence), or any other cause of action.
20.2 Commercially 's liability to you arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(a) Commercially will have no liability whatsoever for any loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of or damage to reputation, loss of capital, downtime costs, loss under or in relation to any other contract, loss of data, loss of use of data or any other economic, special, indirect or consequential loss (including legal fees) incurred by you or anyone else under or in connection with this Website ; and
(b) for any liability that is not otherwise excluded or limited by this Agreement, Commercially’s total aggregate liability to you under or in respect of this Agreement whether in contract (including under an indemnity), tort (including negligence), statute or any other cause of actions is otherwise limited to an amount not exceeding $100.00.
Notwithstanding any other provision of this Agreement, Commercially’s liability will be reduced to the extent the loss or damage is caused by you.
20.3 The Website comes with guarantees that cannot be excluded under the Australian Consumer Law. If you are acquiring the goods or services as a customer, Commercially’s liability for a failure to comply with a consumer guarantee is limited to:
(a) in the case of services supplied to you as part of the services under this Agreement, supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of goods supplied to you as part of the services under this Agreement, replacing the goods, or repairing the goods, or payment of the cost of replacing the goods or of acquiring equivalent goods.
You agree to indemnify and hold Commercially, its subsidiaries and affiliates (and the officers, agents, partners and employees of each of the forgoing) harmless against any and all loss, liability, claim or demand (including reasonable attorneys’ fees) arising out of, or in connection with:
(a) the Listing Content or Agent Profiles;
(b) the acts or omissions of you or any Associated Entity in connection with the Website or the subject matter of this Agreement; or
(c) any claim brought by an Associated Entity relating to the Website or the subject matter of this Agreement.
22.1 Either party may terminate this Agreement on 7 days’ written notice to the other party.
22.2 We may terminate your Account immediately, by giving you notice in writing, if:
(a) you commit a breach of this Agreement, and that breach is incapable of remedy;
(b) you commit a breach of this Agreement that is capable of remedy, and do not rectify that breach within seven days of Commercially issuing a notice of that breach to you;
(c) you regularly or habitually commit breaches of the same provision of this Agreement, whether or not they are remedied, or commit a significant number of breaches which are not remedied;
(d) you are located in a jurisdiction that is designated as a terrorist-supporting country by a relevant government, including Australia and the United States of America, or if you are listed on a government list of prohibited or restricted parties, including the governments of Australia and the United States of America; or
(e) where Commercially has an express right to do so under any provision of this Agreement.
22.3 On termination of this Agreement you must cease, and must procure that each Associated Entity ceases, providing Listing Content to Commercially.
22.4 On termination of the Agreement, any Listing Content published by you on the Website will be removed.
22.5 Commercially will not refund any amounts prepaid under this Agreement.
22.6 Termination of this Agreement does not affect any accrued rights or remedies of either party, or any obligation on you to pay any amounts payable under this Agreement to Commercially.
This Agreement does not create a relationship of employment, trust, agency or partnership between us. Neither party is authorised to represent itself as acting, or to incur any obligation, on behalf of the other party.
This Agreement is governed by and must be construed in accordance with the laws of the State of New South Wales, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance and subject matter.
You may notify Commercially of any issue or dispute with Commercially (“Dispute Notice”).
We both agree to try and resolve the dispute in such Dispute Notice in good faith, before either party commences any formal proceedings (other than for urgent interlocutory or other relief).
You may not assign any of your rights under this Agreement without the prior written consent of Commercially. Commercially may assign its rights under this Agreement in its sole discretion without your prior consent.
Commercially may perform all or any part of its obligation under this Agreement outside Australia.
This Agreement:
(a) constitutes the entire agreement between the parties as to its subject matter; and
(b) supersedes all prior representations and agreements in connection with that subject matter.
Unless expressly stated otherwise in this Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement must be in writing. Commercially may provide a notice by:
(a) posting the notice on the Website; or
(b) emailing the notice to the email address that you last provided to Commercially.
A term or part of a term in this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement continue in force.
Commercially does not waive a right, power or remedy under this Agreement if it fails to exercise or delays in exercising a right, power or remedy. A single or partial exercise of a right, power or remedy by Commercially does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy by Commercially must be in writing and signed on behalf of Commercially. A waiver of a breach of this Agreement does not waive any other breach.
If an event beyond a party’s reasonable control (Force Majeure Event) causes that party to be unable to perform or be delayed in performing an obligation under this Agreement (other than, in your case, an obligation to pay the fees), that obligation is suspended for so long as it is prevented or delayed by the Force Majeure Event.
Any indemnity or any obligation of confidence under this Agreement is independent of, and survives termination or expiry of, this Agreement. Any other term by its nature intended to survive termination or expiry of this Agreement survives termination of this Agreement.
Expiry or termination of the whole or any part of this Agreement does not prejudice any right or liability that accrued to a party before the date of such expiration or termination.
Clauses 1 (Definitions), 12 (Intellectual Property Rights), 21 (Termination), 20 (Exclusions and Limitations of Liability), and 24 (Dispute Resolution) continue to apply after expiry or termination of this Agreement, as does any other clause that, by its nature, is intended to survive such expiry or termination.
In this Agreement:
(a) a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(b) terms used that are defined in the GST Act have the meaning given in that Act, unless the context makes it clear that a different meaning is intended;
(c) a reference to a party includes a reference to the party’s executors, administrators, successors and assigns;
(d) the singular includes the plural, and vice versa;
(e) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation;
(f) a reference to a “person” includes a natural person, corporation, statutory corporation, partnership, the Crown, and any other organisation or legal entity, and their permitted novatees, permitted assignees, personal representatives and successors; and
(g) clause headings in this Agreement are inserted for convenience only, and do not affect the interpretation of this Agreement.
