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TERMS & CONDITIONS

Terms and Conditions for DIYBA Aus Pty Ltd ACN 650 136 771

(Effective from 23rd February 2023)

 

It is agreed:

  1. Definitions and Interpretation
    • Definitions

Unless the context otherwise requires, the following definitions apply in these terms and conditions (T&Cs) and any other document forming part of this Agreement:

Account means an account created through our App and/or Website allowing you to use and access our Services, through the App and/or the Website.

Additional Charges means any fees or charges for additional items or services provided at your request (including in respect of additional initiatives undertaken by us at your express request) or reasonably required as a result of your breach of this Agreement.

Agreement is defined in clause 1.2.

App means a software application (including the web-based software) made available by us from time to time for use on an electronic device (such as computer or other device) which provides you with access to our Services, among other things.

Business Day means a day which is not a Sunday, Saturday, public holiday or bank holiday in Sydney.

Electronic Direct Marketing (EDM) means electronic direct marketing initiatives that we undertake from time to time, which may include email, in-App or other electronic send-outs to you.

GST means any tax imposed by or through the GST Law on a supply (without regard to any input tax credit) including, where relevant, any related interest, penalties, fines or other charges to the extent they relate to a supply under this Agreement.

GST Law has the same meaning as ‘GST Law’ in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (and any related tax imposition act).

Immediately Available Funds means an electronic transfer of cleared funds into the bank account nominated by us, without set-off, counterclaim or deduction. 

Intellectual Property Rights means all present and future intellectual property rights of any nature, anywhere in the world, including those in relation to:

  • any patents, designs, trade marks (whether registered or common law trade marks), copyright or trade secrets; and
  • any invention, discovery, trade secret, secret process, know how, computer software or confidential, scientific, technical or product information,

and any right to use (or otherwise exploit), or to grant the use of, or to be the registered owner or user of, any of them.

Managed Purchase means where we or another third-party act as a buyer’s agent in relation to the purchase of a property on your behalf (or on behalf of your related entity) that is facilitated via the App.

Managed Purchase Fee means the fees payable by you to us in respect of a Managed Purchase or similar arrangement, as determined in accordance with this Agreement.

Our Policies means our standard practices that apply to the use of the App and our services, as amended from time to time.

Paid Services means the provision of and access to Property Data, Property Guides, the option to initiate a Managed Purchase via the App and such other services or functionality of the App (including the additional functionality of your Account) that we designate or that the App indicates is a ‘Paid Service’ or requires you to pay a Subscription Fee from time to time.

Payment Provider means a network participating in our App for the purposes or processing payments (including charging you the Subscription Fee), which may include Stripe Payments Pty Ltd ACN 160 180 343, Visa, MasterCard and American Express.

Property Criteria means the information and criteria you specify via the App in respect of the properties (including markets) that you may be interested in purchasing, as updated from time to time via the App and its search functionality. 

Property Guides means any checklists, documents and guides (such as suburb profiles, market statistics, demographic and property statistics, neighbourhood information) that we may provide to you to assist in buying a property.

Property Data means information in respect of properties or markets that may be available for purchase and are intended to match your Property Criteria, which may be displayed via the ‘Search’ function in the App and includes any related functionality of the App.  

Property Portfolio is a functionality via the App where you may be able to record, store and manage information and documents relating to your properties such as addresses, purchase dates, lists of assets purchased and sold, mortgage documents, insurance policies, income and expenses and the like.

Services means the provision of information in respect of properties and other services and functionalities provided via the App, which may include Paid Services.

Subscription Fee means the fee payable by you to us in accordance with these T&Cs.

Subscription Term means the relevant period that you have subscribed to Paid Services, as determined in accordance with this Agreement.

Third Party means any third party (such as property managers, conveyancers, building and pest inspectors, property data providers, service providers or other suppliers) whose information (including data relevant to properties, markets, listings or sales) or products may be advertised or displayed in the App from time to time (whether in their original form or varied form), which may include property agents who are advertising properties for sale.

Third Party Information means any reports goods, services, information, data or anything else that is provided by a Third Party from time to time, including pricing, tends and other information in respect of properties or markets displayed in the App.

Third Party Terms means any terms, conditions or requirements imposed on us or you (including those that we are required to impose on you) by any Third Party in connection with the App, this Agreement or any Third Party Information, including those prescribed by a Third Party or by us in relation to data or information made available via the App and any additional covenants or terms imposed by any Payment Provider, which may notified to you or displayed on the Website and/ or the App from time to time.

You and your means the relevant individual that has an Account with us and includes, the individual we are contracting with under this Agreement if that is a different person.

We, us and our means DIYBA Aus Pty Ltd ACN 650 136 771 as trustee for the DIYBA Unit Trust.

Website means www.diyba.com.au or such other website hosted by us for the purposes of these T&Cs.

  • Documents comprising this Agreement

This Agreement consists of these Terms and Conditions, Our Policies and any additional terms (such as terms of use) that are specified in the App or on our Website and any Third Party Terms.  To the extent the law permits, these T&Cs will prevail of any inconsistency with any other documents forming part of this Agreement and no other terms or conditions (including those contained in any document submitted by you) will form part of this Agreement nor create any enforceable rights against us.

  1. CONDITIONS PRECEDENT
    • Conditions Precedent
      • We are not required to provide (and you are not entitled to) any Services or access to our App or systems unless you have satisfied the following conditions (Conditions Precedent) and we have confirmed you have done so in writing:
        • you have completed our onboarding process, including creating an Account via the App and providing us with all necessary information as required by the App (such as your personal details including full name, postcode, email, phone number, and the like); and
        • we have approved you for inclusion in the App in writing.
      • If you have not satisfied the Conditions Precedent within 14 days of the date an Account is registered, then we may immediately terminate this Agreement by notice in writing. If we provide you with access to our App and you have not satisfied the Conditions Precedent, then we can still terminate this Agreement under this clause.
    • Term
      • Subject to satisfaction or waiver of the Conditions Precedent, this Agreement will continue until terminated.
      • Your access to Paid Services will only apply if you pay the Subscription Fee. If you have subscribed for our Paid Services, your access to those Paid Services will continue for the Subscription Term unless terminated earlier in accordance with this Agreement.
      • Unless this Agreement is terminated in accordance with these T&Cs, your subscription for Paid Services will automatically renew for a further Subscription Term commencing immediately after the current Subscription Term or any subsequent term (as the case may be). Either party may elect not to renew this Agreement by giving the other party not less than 7 days’ notice prior to the end of any Subscription Term.
      • You will be able to access your Account and change the length of the Subscription Term, and subject to payment of the relevant Subscription Fee, the new Subscription Term will commence immediately after the end of the current Subscription Term.
      • Despite your subscription for Paid Services expiring, you will be able to continue accessing the App in respect of your Property Portfolio until your Account or this Agreement is terminated.
  1. Our Services
    • Access to our App

Once the Conditions Precedent have been satisfied and as consideration for you duly and punctually complying with your obligations under this Agreement, you will have access to the App (and our Services via the App) in accordance with these T&Cs.   

  • Property Criteria, Property Data and Property Portfolio
    • As part of our Services, you may provide information and criteria in respect of properties that you may be interested in purchasing (such as your budget, locations of properties, whether you are looking for properties for capital growth or cash flow and other matters), which are referred to as the ‘Property Criteria’ and this will be done via the process in the App (which at the date of these T&Cs is via the ‘Search’ tab).
    • We will use the Property Criteria specified via the App to assist in generating Property Data. However, you will need to sign up to (and have a current subscription for) our Paid Services to access the Property Data and to retrieve any results via the search functionality in our App.
    • Any information displayed in the App (including in respect of potential properties, any growth in value of properties in a location, estimates of potential future growth, information regarding affordability or lending factors that may be relevant to a financier) is based on information obtained from third parties (including Third Party Information) and we do not indecently verify that information to ensure that it matches your Property Criteria. For example, properties displayed in the App may be based on the listed sale price advertised by a real estate agent and if that price matches your price and other Property Criteria then the property may be displayed in the App, even if the actual sale price that the owner is willing to accept may exceed the price specified in your Property Criteria or the Third Party Information we have been provided with is incorrect or out of date.
    • As part of our basic Services, you may be granted access to the Property Portfolio You may not need to subscribe to our Paid Services to access the Property Portfolio and other functionality of the App that is not a Paid Service at the relevant time. However, certain functions or features of the Property Portfolio or other parts of the App or our Services may not be available to you unless you have access to our Paid Services.  If we are required to limit your access to certain features of the Property Portfolio or ay of the other features of the App (including due to the retirements of any Third Party Terms), then we may do so at any time. The Property Portfolio does not have any export function, so you will be solely responsible for keeping original or back-up copies of any documents you store in the Property Portfolio and to the maximum extent permitted by law we exclude any liability for any loss, damages or costs incurred by you or your affiliates in relation to the Property Portfolio or use thereof.
  • Paid Services

You acknowledge and agree that:

  • as part of our Paid Services, you will have access to Property Data and Property Guides, however your access to these services may be removed if you do not pay the relevant Subscription Fee or your subscription to our Paid Services is otherwise cancelled or terminated for whatever reason or where we are required to restrict access to these functions under any Third Party Terms; and
  • as part of our Paid Services, you may be entitled to initiate a Managed Purchase where we or another third party will act as your buyer’s agent to purchase the property you have selected via the functionality in the App (such as by selecting the ‘Buy by DIYBA’ option).
  • App permissions

To use the App, you may grant certain permissions to us for your device and/or Accounts. Most electronic devices (such as mobile phones) provide additional information regarding these permissions and how, if possible, to changes your permission settings. By downloading, installing, or using our App, you agree to receive automatic software updates (as applicable).

  • EDMs
    • By creating an Account, you agree that we (or our affiliates) may send you EDMs as part of the normal business operation of your use of the App.
    • You agree that neither us nor our affiliates are required to include an unsubscribe message/option in such EDMs. You also agree that you cannot opt-out from receiving EMDs via the App (although you can opt-out of our email messages). These communications are important for your experience.  If we allow you to opt-out of any EMDs or other notification, you acknowledge that opting out of may impact your use of the App.
  1. Our Fees
    • Subscription Fee and Subscription Term
      • Our obligation to provide any Services (including any Paid Services) is conditional upon you duly and punctually complying with your obligations under this Agreement, including paying the Subscription Fee (if applicable) and any other monies required to be paid to us under this Agreement (including any applicable Managed Purchase Fee).
      • You may, at any time once you have an Account, apply for access to our Paid Services. During the onboarding process for Paid Services, you must select the Subscription Term that you wish to subscribe to our Paid Services for, which may be in periods of 1, 3 or 12 months (or such other term specified in the App). Unless we expressly agree otherwise in writing, any Subscription Fee payable by you to us will be dependent on the length of the Subscription Term, with monthly Subscription Terms being more expensive than annual Subscription Terms (when calculated on a per month basis).
      • The initial Subscription Term will be fixed for the period commencing on the date that we have received payment of the Subscription Price and ending on the last day of the Subscription Term that you have selected (or at your discretion on the last day in the calendar month on which the Subscription Term ends), and each subsequent Subscription Term will commence immediately after the conclusion of the preceding Subscription Term.
      • The initial Subscription Fee for the initial Subscription Term will be displayed in the App either as part of the onboarding process for Paid Services or periodically from time to time (such as when you go to renew or reactivate your Subscription).
      • The initial Subscription Term may (in our discretion) be adjusted so that the last day of the Subscription Term ends on a particular day (such as the end of a month), in which case the Subscription Fee will also be adjusted on a pro-rata basis where any part of the Subscription Term is less than one calendar month.
      • The Subscription Fee is subject to change at any time (at our discretion and by notice to you of the new Subscription Fee, including via the App). Any change to the Subscription Fee will apply from the date of renewal of the Subscription Term. If you do not agree to the new Subscription Fee, you may terminate this Agreement by giving us not less than 7 days’ notice prior to the end of any Subscription Term. We are authorised to debit your credit card or account nominated in the App for the Subscription Fee (including any varied Subscription Fee).
      • We may apply a Subscription Fee (or similar fee) for access to our Services (including those services or functionality of the App that are not Paid Services at the time you created an Account), at any time by providing you with not less than 3 months’ notice ( including via the App). If we do so, then any Services that we so designate in the notice will become a Paid Service for the purposes of this Agreement and the relevant Subscription Fee notified to you (or displayed in the App) will apply to those Paid Services.  If a Subscription Fee becomes payable in order to access our Services and you do not agree to pay the Subscription Fee, this agreement will automatically terminate at the end of the notice period and you may lose access to our Services..   
  1. PAYMENTS
    • General payment terms
      • You must pay us the Subscription Fee, any Additional Charges and all other monies payable pursuant to this Agreement within the time provided for in this Agreement in Immediately Available Funds.
      • We will arrange for you to be issued invoices from time to time in respect of the Subscription Fees and any Additional Charges by sending them to the email address nominated in your Account (or such other address we notify you of from time to time). You are required to pay us all amounts stated on an invoice issued under this Agreement, including any amounts in respect of the Subscription Fee and any Additional Charges, upon receipt of the invoice. Where you have set up a direct debit arrangement with us, then we will debit your nominated card or account at the start of each Subscription Term.
      • Where this Agreement entitles us to impose an Additional Charge (including where you breach this Agreement), then the Additional Charge will be the amount that represents our full costs and expenses (with any time of staff to be charged at $100 per hour) incurred in connection with the matter that gave rise to the Additional Charge, unless we agreed in writing on the amount of the Additional Charge.
      • If you do not pay any monies owing to us when due, then you will pay us interest on the overdue monies at the rate of 8% per annum, calculated on daily balances and compounding monthly until paid. Interest is payable at the end of the month in which the interest accrued or earlier on demand.
      • If you have provided us (or our payment provider) with a direct debit service agreement, direct debit request or similar document that authorises monies to be debited from your bank account, card or other payment method (together a DDR), then any invoiced amount will be debited from your bank account, card or other payment method specified in the DDR on the due date of the invoice. You must not cancel a DDR without our prior written consent unless the law allows you to do so without our consent. If we incur any payment or credit card surcharge for in respect of any payments you are required to make to us, then we may recover that surcharge from you (including by debiting your card or account pursuant to any DDR). 
      • We reserve the right, in our discretion, to seek reimbursement from you if we discover a payment processing error and we may do so by invoicing you separately for that amount, debiting your card/account/payment method on file or pursuant to any DDR or any other lawful means.
    • GST
      • In these T&Cs references to ‘GST’ also include references to any other indirect transaction taxes or consumption taxes, including any value added tax, goods and services tax, sales tax or similar tax, wherever imposed. Terms used in this clause have the same meanings given to them in the GST Law, unless the context indicates otherwise. 
      • If a party makes a supply to another party under, or in connection with, this Agreement, then (unless the consideration is expressly stated to be inclusive of GST) the consideration for that supply is GST exclusive. The Subscription Fee and the Additional Charges (and any component of them) are exclusive of GST, unless we agree otherwise in writing. 
      • In addition to paying consideration for a supply (unless the consideration is GST exclusive) the person making the payment must:
        • pay to the supplier an amount equal to any GST for which the supplier is liable on that supply, without deduction or set-off of any other amount; and
        • make that payment as and when the consideration must be paid or provided.
      • The recipient need not pay GST unless the recipient has received a tax invoice (or an adjustment note) for that supply.
      • If a party provides payment for a claim or a right to claim under or in connection with this Agreement (for example, for a breach of any warranty or for reimbursement of any expense) that gives rise to a liability for GST, the provider must pay, and indemnify the claimant against, the amount of that GST (except any amount for GST for which that party is entitled to an input tax credit).
  1. MANAGED PURCHASE
    • Process for a Managed Purchase

Where you have access to our Paid Services and initiate a Managed Purchase via the functionality in the App (such as by selecting the ‘Buy by DIYBA’ option), then we will generally adopt the following process:

  • we may display a video or other communication via the App explaining the Managed Purchase arrangements;
  • once that has been done, you will need to indicate that you want to proceed with the Managed Purchase, and we will then arrange for our staff or the Agent (as defined below) to call you to answer any queries you have in respect of the Managed Purchase; and
  • if you confirm you want to proceed with the Managed Purchase, then you will be required to agree to the Agent’s terms of engagement and pay the Upfront
    Fee (as defined below) before us or the Agent will commence negotiations to purchase the relevant property.   
  • Managed Purchase and the Agent
    • If you initiate a Managed Purchase, then you expressly consent to us passing on your personal details to any third party (which may include The Investors Agency Pty Ltd ABN 58 633 337 854 (TIA)) so that they may contact you and act on your behalf in relation to the Managed Purchase.   
    • The person who acts as your buyer’s agent in relation to the Managed Purchase is referred to as the Agent in this clause 6. Where you initiate a Managed Purchase and we are not the Agent, all payments (including Managed Purchase Fees) are payable to us (unless we or the agent direct you otherwise in writing), we will promptly notify you of who the Agent is, any references to us in the remainder of this clause 6 include a reference to the Agent. 
    • Where you confirm you want to proceed with the Managed Purchase. you will be taken to have engaged the Agent directly on the terms of this Agreement (as well as any other terms notified by the Agent to you in writing or by us via the App) and you authorise us (and each of our directors) to sign the Agent’s agency agreement (on the terms provided by the Agent) on your behalf (despite any conflict of interest). The Agent may serve the signed agency agreement to your email address linked to your Account. We may still exercise the rights of the Agent despite you engaging them directly.
    • Where TIA is acting as the Agent and you do not personally sign a separate written agency agreement with TIA, then TIA’s standard form services agreement for TIA’s engagement for a Managed Purchase will apply , which is currently available at https://theinvestorsagency.com.au/tia-services-agreement-for-diyba/ or otherwise on request.
    • Once you elect to proceed with a Managed Purchase, you appoint the Agent as your exclusive buyer’s agent to act on your behalf in respect of the relevant property (including authorising the Agent to undertake the usual activities of a buyer’s agent, such as negotiating a price for the property, inspecting the property, and assisting with property manager selection). However, the appointment of the Agent will be limited to acting for you in respect of the particular property the subject of the Managed Purchase, and the Agent will not be sourcing different properties for you to purchase unless that is separately agreed with the Agent in writing and you pay the relevant fees for such services. The Agent’s appointment will continue for the maximum period permitted by law for an exclusive agency, unless the Agent’s appointment is terminated earlier in accordance with this Agreement.
  • Managed Purchase Fees
    • The ‘Managed Purchase Fees’ will be notified to you via the App from time to time (and will include any other fees agreed by you and us in writing). The Managed Purchase Fees will include the following unless we agree otherwise in writing:
      • an upfront fee (Upfront Fee) that you will pay to us once you confirm you want to proceed with the Managed Purchase; and
      • a success fee (Balance Payment) that you will pay us no later than 7 days from settlement of the relevant property or properties covered by the Managed Purchase.
    • To the extent the law allows, the Upfront Fee is non-refundable. However, if you or the Agent cannot successfully negotiate an agreement for you to purchase the property the subject of the Managed Purchase or where the contract to purchase the property does not complete (for example, due to non-satisfaction of a building and pest inspection), then:
      • the Upfront Fee will not be refunded to you but instead we will not charge you another Upfront Fee in respect of any further Managed Purchase, provided you confirm our engagement in respect of the further Managed Purchase within 6 months of the date we received the initial Upfront Fee; and
      • if you do not confirm our engagement to proceed with a further Managed Purchase within the period in paragraph (i) above or if you elect to terminate the Managed Purchase (other than due to our breach of this Agreement), then we will retain the Upfront Fee.

By way of example, if you confirm you want to proceed with a Managed Purchase of a property and pay the Upfront Fee on 1 January 2023 but your offer to purchase the property is not accepted (or the contract is terminated due to non-satisfaction of a condition), then we will hold onto the Upfront Fee.  If you confirm you want to proceed with a Managed Purchase of another property on or before 1 July 2023, then you will not be required to pay another Upfront Fee for that other property (but you would still be liable for the Balance Payment if that purchase settles).  However, if you do not confirm you want to proceed with another Managed Purchase on or before 1 July 2023, then we will retain the Upfront Fee, and if you initiate another Managed Purchase after 1 July 2023 then you will be required to pay another Upfront Fee of the amount notified to you at the time of that further Managed Purchase.      

  • The Balance Payment is payable no later than 7 days from the date of settlement of a property covered by the Managed Purchase (including any other property that you appoint the Agent’s to act on, if any), including where you or anyone on your behalf acquires the property (Property). The Balance Payment is also payable if you (or anyone on you behalf) acquires an interest in a Property within 12 months of the expiry of the Agent’s appointment, where the Property was introduced to you by us or the Agent, and upon that occurring the you will pay the full Managed Purchase Fees.
  • If there are other Managed Purchase Fees that are notified to you via the App or agreed by you in writing (including via the App), then those fees are payable on demand, unless we have agreed that the fees are payable at later time (in which case they will be payable at the agreed time).
  • Conditions for Managed Purchase
    • As a condition of a Managed Purchase, you agree to maintain a subscription for Paid Services from the time of initiating the Managed Purchase until settlement of the relevant property purchase, as access to the Paid Services functions of the App are required in order to communicate and liaise with you in relation to the Managed Purchase. If you cease to maintain your subscription to Paid Services, then we may cease to act for you in respect of the Managed Purchase and may retain the Upfront Fee. 
    • You agree to provide all cooperation requested by the Agent promptly sign such further documents as may be required by the Agent in order to give effect to the appointment of the Agent or the parties rights or obligations in respect of a Managed Purchase. The Agent is under no obligation to act for you until these documents are signed.   Without limiting the other provisions in this Agreement, where the agency agreement is provided to you and you pay the Upfront Fee, you acknowledge that amounts to acceptance of the agency agreement and confirmation of our authority to sign the agency agreement on your behalf. 
    • Where we are not the Agent in respect of the Managed Purchase, we will not be liable for the Agent’s acts or omissions in respect of the Managed Purchase, rather your sole rights will be against the relevant Agent.
    • You must not initiate a Managed Purchase unless you are pre-approved for finance for at least the listing price of the relevant property. If you initiate a Managed Purchase and any agreement to purchase the relevant property is terminate due to you not satisfying any finance condition, then we reserve the right to retain the Upfront Fee.
    • You may only initiate one Managed Purchase at a time, unless we expressly agree otherwise in writing. You will promptly notify us if you are unsuccessful in purchasing a property the subject of a Managed Purchase.  Where multiple Managed Purchases are in effect at any particular time, the Managed Purchase Fees will apply in respect of each Managed Purchase. 
    • Either you or us may terminate the appointment of the Agent for the Managed Purchase by giving not less than 14 days’ notice in writing. If we terminate the appointment, then the Upfront Fee will be refunded to you.  However, any such termination will not terminate this Agreement, rather this Agreement will continue to apply until it is terminated in accordance with its terms. 
  1. ACKNOWLEDGEMENTS AND OTHER OBLIGATIONS
    • General obligations
      • You must pay us the Subscription Fee, any Additional Charges and all other monies payable pursuant to this Agreement within the time provided for in this Agreement.
      • You must ensure that all information you have provided to us is complete, accurate, up to date and not misleading (including by way of omission) and promptly notify us if any such information is inaccurate, incomplete, out of date or misleading. We rely on you in this regard.
      • You are responsible for safeguarding the password that you use to access our Services (including any Paid Services) through the App and for any activities or actions under your password, whether your password is with our Service or a third-party).
    • Warranties

To the extent permitted by law, you represent and warrant to us, throughout the term of this Agreement (including during any onboarding or Account creation process), that:

  • you have full power and authority to enter into this Agreement and perform all your obligations under it;
  • all information provided to us in connection with this Agreement (including all information inputted into the App) is true and correct;
  • you are duly authorised to provide us with the details of any accounts, debit or credit cards used for the purposes of making payment to us, those accounts or cards held by you personally (and are not of another person) and the accounts and cards are current and valid; and
  • you are not relying on our Services (including any Paid Services) or any information displayed in the App when making a decision to purchase or invest in a property displayed in the App, rather you will make your own independent enquiries in that regard and will verify all Third Party Information independently.
  • Your Account

You acknowledge and agree at all times that:

  • in order to use the App or use our Services (including any Paid Services), you must register for and maintain an active user Account;
  • you must be a natural person who is at least 18 years of age to create an Account or to use the App and you may only possess one Account (unless we agree otherwise in writing);
  • upon creating an Account, you agree to be bound by this Agreement and you expressly consent to us handling your personal information in accordance with our privacy policy and applicable laws; and
  • you are responsible for all activity that occurs under your Account and you agree to maintain the security and secrecy of your Account username and password at all times.
  • General acknowledgments

To the extent permitted by law, you acknowledge and agree at all times during the term of this Agreement (including during any onboarding process for the App) that:

  • any data, information or advice provided by us (including the Property Guides) under, or in connection with this Agreement and any properties (Market Data) is of a general nature only and is not tailored to your specific needs or investment circumstances (despite you including any information regarding your desired investments or properties in the App or any other matter, such as by specifying your Property Criteria);
  • we are not acting as a real estate agent, buyer’s agent or any other form of agent that requires any licences or approvals in connection with our Services (including any Paid Services) or the App, rather we are providing general information only – that is unless we personally act for you as the Agent in respect of a Managed Purchase;
  • further terms or conditions may apply to certain features of the App or any of our other services or products (or any part of them), such as policies for a particular promotion, requirements for specifying your Property Criteria, and such further terms and conditions are in addition to (and form part of) these T&Cs for the relevant purpose and will prevail over any inconsistent provisions in these T&Cs unless specified otherwise;
  • we do not have a financial services licence (and we are not authorised to provide financial services or advice to you) and the provision of such Market Data does not constitute financial or investment advice nor should it be relied upon as such;
  • any information displayed in the App or otherwise communicated to you in connection with our Services or this Agreement is of a general nature only, information in relation to projected growth, returns or other financial matters in respect of properties is based on historical Third Party Information that may not reflect future performance (as historical performance is not an indication of future performance) and that we do not provide any guarantees or assurances in respect of any potential investment decision or property;
  • the App and our Services (including any Paid Services) are provided ‘as is’ and ‘as available’ and we provide no assurances that your access to the App will be uninterrupted or error free or available on all devices;
  • you must act in good faith in respect of the use of the App and your dealings with us and you will cooperate with us (including providing all information and documents we reasonably require) in order to ensure you are doing so;
  • you acknowledge that any breach of the Third Party Terms may cause us significant loss and you will at all times comply with (and will ensure any persons who access the App on your behalf, whether in breach of this Agreement or not, will comply with) all Third Party Terms;
  • you will routinely review our Website or other notifications in the App in respect of any Third Party Terms, will promptly notify us of any breach by you of any Third Party Terms and acknowledge that any Third Party Information is subject to any disclaimers, limitations of liability and other acknowledgements contained in any Third Party Terms (which are enforceable by us and any Third Party);
  • the App (or any other material made available to you by us) may be made available or accessed in connection with a Third Party and content (including Third Party Information) that we do not control, different terms or policies (including the Third Party Terms) may apply to your use of such third party services and content and we do not endorse (nor are we liable for) any such third party services or content;
  • you will comply with Our Policies in effect from time to time and this Agreement, and we may update Our Policies by displaying the changes on our Website, by notice to you or via the App;
  • you are responsible for obtaining access to the App and all networking and hardware matters relating to such access, that you may be liable for fees or charges from your service provider if you access the App from a wireless or network device and that we do not guarantee that the App will be accessible on all hardware;
  • under these T&Cs, we can issue formal updates and notices via the App;
  • unless we are engaged as the Agent in respect of any Managed Purchase, we are not liable for any acts or omissions of the person or business that acts as a buyer’s agent in respect of the Managed Purchase;
  • information and data displayed in the Property Portfolio is based on information you have provided to us and Third Party Information (for example, in respect of trends and average property values in the relevant market), so any information or data displayed may not be accurate, complete or up to date (for example, any yields shown on the Property Portfolio may not accurately reflect the yield on your property);
  • you will need to continue your subscription to Paid Services until settlement of any Managed Purchase, otherwise we (or any third party Agent who acts for you on the Managed Purchase) may not be able to communicate with you;
  • any fees, commissions or other sums quoted to you in respect of a Managed Purchase are calculated on the basis that you have selected the property that you want to purchase and that property is available for sale, so if the property you have selected is not available for sale then the Managed Purchase may end (unless we or the third party Agent who is managing the Managed Purchase agrees otherwise in writing) and if you request our assistance (or the assistance of a third party) to find a suitable property for you to purchase then further fees, commissions or other sums may be payable;
  • we may receive a commission, referral fee or another kind of payment or benefit from Third Parties in connection with any promotion (including a ‘Promotion’ as defined below) or display of their products in the App, any referrals of you to them via the App, this Agreement or otherwise;
  • we may restrict your access to the App or any of our other services or products (or any part of them) immediately and without notice, including where we suspect that you have (or are likely to) breach these T&Cs or Our Policies, where we need to do so in order to prevent harm that may arise from such access or where it is necessary to do so in order for us to comply with any Third Party agreement or applicable law;
  • functions and other matters relating to the App may change from time to time in our discretion (including changing any services or functionality to Paid Services and removing any functionality in relation to your Property Portfolio), and it is your responsibility to ensure that you update any information contained in the App (including your Property Criteria) in response to such changes;
  • we may remove access to the App or any information made available via the App in various circumstances (including upon termination of this Agreement, if the Subscription Fee is not paid or earlier if our suppliers cease to provide us with access to the platform upon which the App is hosted or based), so you must ensure that any information, reports or other information made available via the App (including any documents or information you have included in the App) is adequately stored independently of us or the App,

and you are not entitled to withhold any payments to, or make any claim against us, in connection with the above matters, to the extent the law allows.

  • Promotions
    • We may display short-term offers, promotion or advertisements to you (whether via the App or otherwise) in respect of a Third Party (Promotions). Where we display Promotions to you, the Third Party to whom the Promotion relates is solely responsible for the fulfilment and the defining of any Promotions offered to you.  We are not liable for any offers or other matters relating to a Promotion. 
    • You acknowledge and agree that at the time these T&Cs are adopted, the App has limited functionality and therefore any Promotions displayed in the App may not function as displayed or intended. The Third Party is solely responsible for the fulfillment and defining of the Promotions.
    • Where unclear, you must seek the Third Party’s written confirmation that it will honour any discounts or offers displayed in the App prior to making any purchase with them, as we do not guarantee that any discounts will be honoured by the Third Party.
    • We may create promotional codes that may be redeemed for features or benefits related to the App and/or a Third Party’s products, subject to any additional terms that are established on a per promotional code basis (Promo Codes). You agree that Promo Codes:
      • must be used for the intended audience and purpose, and in a lawful manner;
      • are not valid for cash, may expire prior to your use and may be disabled by us at any time for any reason without liability;
      • may not be duplicated, sold or transferred in any manner, or made available to the general public;
      • are only valid for redemption with the relevant Third Party to which they relate and are always subject to any additional conditions imposed by the relevant Third Party to which they relate; and
      • may only be used pursuant to the specific terms that we or the relevant Third Party establish for such Promo Code.
    • We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that we reasonably determine or believe that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these T&Cs.
  • Commissions

We may receive commissions, incentives or referral fees in connection with our business and any Managed Purchase.  Those commissions may be in the nature of payments for referring you to a property manager, building and pest inspector or other businesses that is involved in the buying, selling or management of real estate (including commissions or incentives from the Agent (including TIA) in respect of a Managed Purchase).  While TIA is not owned by DIYBA, the owners of TIA and DIYBA are related.

  1. CONFIDENTIALITY, PRIVACY AND INTELLECTUAL PROPERTY
    • Confidentiality

In respect to our confidential or proprietary information, you must:

  • only use the confidential information for the purposes of giving effect to this Agreement and the arrangements contemplated by it;
  • ensure that the confidential information is protected from unauthorised access or disclosure and that any person receiving the confidential information from you ensure the confidentiality of the confidential information;
  • not disclose our confidential information, except to the extent the disclosure is required by law, court order or rules of a stock exchange, is made to your legal or professional advisers who are bound by obligations of confidence or is consented to in writing by us; and
  • upon our request, return or destroy the confidential information and all copies of it, except where you need to retain the information for the purposes of complying with (or enforcing) its obligations under this Agreement or at law.
  • Privacy
    • You must not do anything which could cause us to breach any obligations we may owe under the Privacy Act 1988 (Cth) (Privacy Act) or any other laws.
    • We may share your contact and other information (and those of your officers, employees and agents) with third parties as reasonably necessary for the purposes of giving effect to this Agreement and your access to the App.
  • Intellectual property

You acknowledge and agree at all times that:

  • the App, Our Policies, Property Guides, any materials provided to you in connection with our Services (including any Paid Services), as well as all related materials and data, will be considered our confidential information and we will retain any Intellectual Property Rights in them;
  • by complying with these T&Cs and in accordance with these T&Cs you receive a limited, non-exclusive, non-sublicensable, non-transferrable and revocable licence to access and use the App on your personal device solely for the purposes contemplated by these T&Cs (and any other rights are expressly reserved by us);
  • you will ensure that you and your employees, agents and contractors will not copy, modify, distribute, sell or otherwise deal with any of our confidential information or Intellectual Property Rights, nor will you reverse engineer (or attempt to extract the source code or any similar material) from our App or any other materials that contain our confidential information or Intellectual Property Rights, and that you must not try to register, use or claim ownership or any rights in our Intellectual Property Rights;
  • any use of the App by you or persons on your behalf must be strictly for non-commercial use, unless we have agreed otherwise in a separate written agreement;
  • you may not use any Intellectual Property Rights displayed in the App (including any trade mark of any Third Party) nor may you remove any notices relating to Intellectual Property Rights displayed in the App;
  • you must not seek to reproduce, reverse engineer, decompile, modify, prepare derivate works based upon, distribute, licence, sell, transfer, publicly display or perform or otherwise broadcast any part of the App or any of our other products or services (including any materials displayed therein); and
  • you must not cause or launch any programs or scripts for the purposes of scraping, indexing, surveying, data mining or any similar matters in respect of the App or any of our services, nor may you attempt to gain unauthorised access to or impair any aspect of the App or its related systems or networks.
  1. Termination
    • Method for termination
      • Either party may terminate this Agreement:
        • for any reason by providing the other party with 30 days’ written notice;
        • if the other party is in breach of this Agreement and such breach is incapable of remedy or is not remedied within 14 days of receipt of written notice requiring the breach to be remedied.
      • If you are in breach of this Agreement, we may restrict or suspend your access to the App and our systems. We may also do so where required under any appliable law or pursuant to any obligations imposed on us by any Third Party (including pursuant to the Third Party Terms).
      • For the avoidance of doubt, deletion of the App or your Account does not amount to termination of this Agreement.
    • Consequences of termination
      • The termination of this Agreement does not prejudice any of your obligations or our rights that expressly or impliedly survive termination of this Agreement (including our rights in respect of Intellectual Property Rights) or any liability of you arising in respect of any past breach.
      • If this Agreement is terminated, then your right to access the App immediately creases.
      • Upon termination of this Agreement other than due to our breach, all monies owing by you under this Agreement (whether due for payment or not) will be immediately due and payable (including any balance of the Subscription Fee not paid at the time of termination, which will be discounted to the present value at a rate of 4% per annum), you will not receive a refund of any Subscription Fee for the balance of the then current Subscription Term and your access to the App and our Services may be immediately disconnected.
      • If you terminate this Agreement due to our breach or if we terminate this Agreement for convenience, then your access to the App and our Services (including any Paid Services) may be immediately disconnected however we will refund to you any Subscription Fee paid for the current Subscription Term on a pro-rata basis.
  1. Other General Terms
    • Disputes and complaints

If a dispute arises between the parties, the parties will endeavour to resolve the dispute in good faith.  

  • Allocation of risk
    • The Australian Consumer Law may give you certain guarantees. Where such guarantees apply to our products and services and liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to the supply of goods, to the replacement or repair of the goods or the costs of resupply or replacement of the goods or with respect to supply of services again or cost of re-supplying the services again.
    • To the extent the law permits, you indemnify, hold harmless and defend (at our option) us, any Payment Provider and our officers, employees, contractors and agents from and against any and all claims, liabilities, losses, costs, charges or expenses (including legal fees on an indemnity basis) that may be incurred or otherwise arise in connection with your breach of this Agreement (including any warranties), your breach of any applicable laws or your negligence.
    • To the extent that the law permits, in no event will we be liable for any Third Party Information that may be provided to you via the App or otherwise in connection with this Agreement nor will we be liable to you for any breach of any Third Party Terms.
    • To the extent that the law permits, in no event will any Third Party be liable to you for any errors, omissions, delays, damages, claims, liabilities, or losses, regardless of cause, in or arising from the use of any Third Party Information.
    • To the extent the law permits, in no event will we or any Payment Provider be liable for any claim for any indirect, exemplary, special or consequential damages or for any loss of business, data, profits (including any damages for loss of business, loss of investment opportunity), nor will we be liable for any investment decisions you make (whether those are based on our Services, information displayed in the App or otherwise), even if we have been notified of the possibility of same.
    • To the extent the law permits, you agree not to raise any claims against us or any Payment Provider, nor seek to make us or any Payment Provider liable in connection with any dispute that you have with a Third Party in respect of any purchase you have made with them. You release any Payment Provider from any liability in connection with the transactions contemplated by this Agreement,.
  • Notices

Any notice, demand, termination procedure or other communication relating to this Agreement must be either sent by facsimile, email, ordinary post or personally served or left at the relevant party’s address for service. We may provide notices via those methods or via the App or any portal on our Website. Any reference in this Agreement to you providing ‘notice’ means a written notice.

 

  • Trust provisions

If you are the trustee of any trust (whether or not the trustee is listed in the Account or this Agreement), you:

  • warrant that you have been properly appointed as the sole trustee of the trust, have not been replaced as the trustee and have properly exercised a power under the relevant trust deed to enter into this Agreement;
  • enter into this Agreement and undertake all obligations in your personal capacity and in your capacity as trustee of any trust;
  • warrant that you have the right to be indemnified out of the trust assets, in priority to the beneficiaries, for all liabilities that you may incur under this Agreement and undertake not to do anything that may result in the loss of its right of indemnity from the trust assets; and
  • undertake to ensure that any new trustee (if one is appointed despite the provisions above) is bound by this Agreement or any variation of this Agreement.
  • Force majeure

If the performance of these T&Cs (except for any obligation to pay) are prevented, restricted, interfered with or materially prejudiced by reason of circumstances beyond the reasonable control of the party obliged to perform it (including any Act of God, act of any governmental or competent authority, the imposition of any new taxes, excise fees, tariffs or other mandatory charges or an increase in same, default of any kind under any contract to which we are a party or seizure or stoppage of Products and Services from you), the party so affected (upon giving prompt notice to the other parties) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use its best endeavours to avoid or remove the causes of non-performance and shall continue performance under these T&Cs with the utmost despatch whenever such causes are removed or diminished.  If such causes are not reasonably able to be overcome, then the parties will negotiate in good faith alternative arrangements for the performance of this Agreement.

  • Assignment

You must not assign any of your rights or obligations under this Agreement without our prior written consent. We may assign or otherwise deal with any of our rights or obligations under this Agreement without your consent.

  • Counterparts

Any documents forming part of this Agreement may be executed (including by electronic means, such as by confirming you have accepted these T&Cs via the App) and exchanged in any number of counterparts, all of which taken together constitute one and the same document. 

  • Variation and waivers
    • Any variation of or to this Agreement will not have any effect whatsoever unless such variation is reduced to writing and signed off by us. However we may update these T&Cs by providing not less than 30 days’ notice in writing to you and the updated T&Cs will deemed to apply from the expiry of such notice period. If you do not agree to the updated T&Cs, you may terminate this Agreement during that 30-day period and the termination will take effect on and from the expiry of that 30-day period.  
    • We may also update these T&Cs or any Third Party Terms at any time where we are required to do so under an agreement we have in place with a Third Party.
    • Any failure by us to exercise any or all of our rights or powers under this Agreement at any time and for any period of time shall not constitute a waiver of any of our rights or powers arising pursuant to this Agreement. Any consent or approval required from us in connection with this Agreement must be in writing in order to be valid.
  • Entire agreement

To the extent the law permits, this Agreement represents the entire agreement between the parties in respect of the matters contemplated by this Agreement, and you acknowledge that you have not entered into this Agreement in reliance on, or as a result of, any promise, representation, statement, conduct or inducement of any kind relating to any matter in connection with this Agreement from us or our agents.  Despite you having to comply with any Third Party Terms, the Third Party Terms are not binding on us (unless we elect otherwise or as required by law)

  • Third parties

Your obligations under this Agreement may confer rights for the benefit of third parties (including any Payment Provider, TIA and any party who assists you with a Managed Purchase such as an Agent, any Third Party if required by the Third Party Terms, and their respective officers, employees and agents) and you will be deemed to have received notice of acceptance of the rights conferred on them (and will be prevented from denying same) when we start providing the Services to you in connection with this Agreement (and again when you confirm to proceed with a Managed Purchase).  We may, in our discretion, hold those rights on trust for those persons.

  • Severance

If any provision of this Agreement in favour of us exceeds what is permitted by law (Void Term), then the following provisions will apply:

  • the Void Term shall be read down only to the extent required to ensure it is enforceable; and, if the unenforceability of the Void Term is not rectified by this provision;
  • if the Void Term is unenforceable due to it imposing liability on you, then you shall only be liable to the extent that you caused or contributed to the liability;
  • if the Void Term is unenforceable due to it releasing us from an obligation, we will still be liable to perform that obligation to the extent we either caused or contributed to the event giving rise to the obligation or breach of this Agreement or the terms implied by law that cannot legally be excluded; and

if the foregoing does not cure the invalidity or unenforceability, this Agreement will not include the Void Term and the remainder of this Agreement shall continue in full force.

  • No merger

Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that we may have against you, another party or any other person at any time.

  • Governing law

This Agreement is governed by the laws of New South Wales and each party Irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales.

  • Interpretation

In these T&Cs:

  • headings used in these T&Cs are for convenience only and do not affect interpretation of these T&Cs;
  • the provisions of this Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for proposing or preparing this Agreement or the inclusion of the provision in it or because that party relies on a provision of the provision to protect itself;
  • a reference to a ‘claim’ or ‘claims’ includes all claims, actions, demands, liabilities, suits, proceedings, costs, expenses or liabilities, whether present or future, fixed or ascertained and however arising; and
  • the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) are not to be construed as words of limitation and do not limit what else might be included nor does the incorporation of more than one obligation in a provision limit any other obligation contained in that provision,

and unless the context otherwise requires:

  • where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
  • the singular includes the plural and vice versa and words importing a gender include every other gender;
  • a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;
  • a reference to a person includes a corporation, trust, partnership, unincorporated body, government agency, or other entity whether or not it comprises a separate legal entity;
  • a reference to a party includes a reference to the party’s executors, administrators, successors, permitted substitutes, permitted assigns and, in the case of a trustee, includes any substituted or additional trustee;
  • a reference to a document includes any agreement or other legally enforceable arrangement created by it (whether the document is in the form of an agreement, deed or otherwise) and includes a reference to any variation, replacement or novation of it; and
  • a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.