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Welcome to this website or mobile applications owned and operated by Biownr Pty Ltd A.C.N. 612 344 537 (“Biownr”).
These Terms of Service apply to Biownr’s websites and mobile applications ("Digital Applications") and you should read them before using the Digital Applications.
Biownr provides property owners and buyers with an easy to use facility for bidding on or committing to purchase real property.
We are not a real estate agent or an auctioneer. The Digital Applications are provided for informational purposes. They are not intended as professional advice, or as a substitute for professional services or advice. Biownr does not act as an agent for any party; sell, buy, deal or negotiate with a party in relation to Property; or conduct the auction of the Property.
We provide an online service to enable users to promote, market and advertise Property for sale by private sale or by auction.
| 1. | DEFINITIONS |
| 1.1 | “You” and “your” refer to all users of the Digital Applications or Service, including Registered Users, and “we”, “us” and “our” refer to Biownr. References to users must be read as being also a reference to Registered Users. |
| 1.2 | “Service” means: |
| (a) the Digital Applications’ Content upload service for Registered Users | |
| (b) the Digital Applications’ Content download service for you; | |
| (c) the Digital Applications’ auction facility; and | |
| (d) the Digital Applications’ sale and purchase commitment facility, | |
| in all cases for use in accordance with these Terms of Service. In the case of Registered Users, references to the Digital Applications include a reference to the Service. | |
| 1.3 | “Property” means a property that is offered by a Registered User for auction on the Digital Applications. |
| 1.4 | “Registered User” means anyone who has signed up for the Service and has obtained a user ID to log into the Service. Registered Users may set a profile by giving us certain additional information, which we may refer to as your “account”. |
| 1.5 | “Vendor” means any Registered User who publishes on the Digital Applications any Property. |
| 1.6 | “Purchaser” means any Registered User who bids on the Digital Applications for any Vendor Property. |
| 1.7 | “Content” means: |
| (a) all digital files (whether courseware description content, images and text, photos, slides, videos, illustrations, gifs, animations, maps and graphics) and products provided on the Digital Applications; | |
| (b) associated metadata (including file author or creator, publisher, language, intellectual property notices, format, version, edition, date, ISSN and ISBN); and | |
| (c) other proprietary information, materials and products, and all copyright protected or otherwise legally protectable elements and functions of the Digital Applications or the Service including the selection, sequence, look and feel, layout and arrangement of items on the Digital Applications. | |
| 2. | LEGALLY BINDING CONTRACT |
| 2.1 | The terms of service in force at any time are published on the Digital Applications and you will be taken to have accepted them by accessing or using the Digital Applications. This is the case whether or not you become a Registered User and regardless of a Registered User’s class, level or status. |
| 2.2 | These Terms of Service constitute a binding legal contract between you and Biownr. You will be legally bound when you agree to accept the Service, click an "I agree," "I consent," or other similarly worded "button", check box or entry field on the Digital Applications with your mouse, finger, keystroke, or other data entry mechanism. Those actions are a legal equivalent of your handwritten signature. |
| 2.3 | The Digital Applications and these Terms of Service may change without notice, so do check them from time to time. A revision date appears at the beginning of the Terms of Service specifying the date of the last revision. |
| 2.4 | If Biownr develops revised terms of service, then on their publication on the Digital Applications they will supersede those they replace. If you subsequently access or use the Digital Applications or the Service you will be taken to have accepted the revised terms of service. If you do not agree with any change or revision of applicable terms of service at any time, do not access, use, upload, submit information to or download from the Digital Applications or use the Service. |
| 2.5 | Specific Digital Applications or Service functions, facilities, features, sections, areas, communities, discussion groups, modules, services, sections, menus, offerings and incentives may have provisions additional to these Terms of Service. Those additional provisions must be read with these Terms of Service. If there is an inconsistency between such provisions and these Terms of Service then the provisions of these Terms of Service will prevail to the extent of such inconsistency and the parties must take all necessary steps to remove that inconsistency. |
| 2.6 | You represent that you are either 18 years of age or older and are fully qualified and empowered to enter into these Terms of Service or you represent you are a minor over the age of 16 and warrant that you have obtained parental consent. |
| 3. | REGISTERED USER – OBLIGATIONS AND WARRANTIES |
| 3.1 | Registration and Use |
| (a) Only Registered Users are permitted to use the Service. | |
| (b) To become a Registered User, you must be 18 years of age or older and have the legal capacity to enter into property transactions. | |
| (c) A Registered User is permitted to have only one account. | |
| (d) A Registered User will have a unique user ID, that comprises the email address and the initial (or any subsequent) confidential password the user provides to become or remain a Registered User (or we may assign an initial password which the Registered User may change later). We may provide a Registered User with additional codes or passwords necessary to access and use specific functions, facilities and features of the Service or the Digital Applications. | |
| (e) Registered Users may be required to submit personal information such as full name, email address, postal address, postcode and additional information for territory and digital media rights management, security or identity verification purposes. We may also ask Registered Users to provide us with optional information about themselves, which will enable us to personalise and customise the Service. We will indicate what information is required and what information is optional. | |
| 3.2 | Registered User’s Obligations |
| (a) Each Registered User warrants that the Registered User’s details provided to Biownr are true and accurate, including full names, affiliations, phone number and email address. | |
| (b) Registered Users must ensure that the Content they upload is accurate. | |
| (c) Do not upload files, photos or software or post messages to the Digital Applications that contain material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own the rights to them or control the rights under all necessary authority, licenses, permissions, consents and approvals. | |
| (d) Each Registered User: | |
| (i) is responsible for the security and use of the Registered User’s user name and password and must take all reasonable steps to ensure they are kept confidential and secure; | |
| (ii) must not allow any third party or unauthorised person to access the Digital Applications using that user name or password; and | |
| (iii) must immediately notify Biownr of any unauthorised use of a user name or password or any other breach of security. | |
| (e) Each Registered User warrants that the Registered User’s details provided to Biownr are true and accurate, including personal names, affiliations, and email address. | |
| (f) Biownr is not liable for any loss or damage arising from a Registered User’s failure to comply with obligations in these Terms of Service. | |
| 3.3 | Vendor’s Obligations |
| (a) | (Listing Requirements Compliance) Registered Users must comply with all Property listing requirements set out in these Terms of Service or by reference on the Digital Applications. You must make correct and accurate Property listing descriptions and you must categorise listings appropriately. |
| (b) | (Irrevocable Offer) By uploading the Content and listing the Property, you are making an irrevocable offer to sell the Property at either the: |
| (i) (auction) highest bidding price made by any Purchaser; or | |
| (ii) (sale) price appearing linked to the Content description. | |
| (c) | (Required Documents) You must upload to the Digital Applications a proposed contract for sale of your Property (together with any document required by relevant laws) drafted by a solicitor or licensed conveyancer in the Property’s jurisdiction (“Required Documents”). You must authorise Biownr to make available to any Registered User interested in bidding on or purchasing your Property your supplied Required Documents on the Digital Applications. |
| (d) | (Listing Content) You must specify the following applicable information in the listing Content of your Property: |
| • an initial minimum price for an auction (“Reserve Price”) or a fixed price (“Sale Price”) or both; | |
| • an auction duration; | |
| • Property address; | |
| • Property features (including number of bedroom(s), bathroom(s), any parking space and any recreational facility such as gym and swimming pool); | |
| • Property description; | |
| • any defect in the Property; | |
| • Property inspection date and time; | |
| • payment method; and | |
| • any information that you are required to provide under any applicable laws and regulations. | |
| (e) | (Review Listing Content) You must review and update listing Content when there is a change in a Property’s status or condition. |
| (f) | (No Bidding Manipulation) You are prohibited from yourself bidding, or procuring others to bid, on any Property with the intent to artificially increase its price or desirability. |
| (g) | (No Duplicate Property) You must not upload separate listing Content onto the Digital Applications for identical Properties. |
| (h) | (Contract Exchange Notification) You must notify Biownr in writing that exchange of contracts for sale of your Property has taken place within seven (7) business days of the date of exchange. |
| (i) | (No Intellectual Property Breach) Do not upload files, photos or software or post messages to the Digital Applications that contain material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own the rights to them or control the rights under all necessary authority, licenses, permissions, consents and approvals. However, you may make links (ie hypertext links). |
| 3.4 | Purchaser’s Obligations |
| (a) | (Read Listing Content) You must read the Vendor’s listing Content before you bid or commit to purchase that Vendor’s Property. |
| (b) | (Genuine Interest) You must only bid on a Property if you intend to commit to purchase that Property. |
| (c) | (No Bid Retraction) Where a Vendor uses an auction-style format, allowing you to bid on a Property, and you win the auction, your winning bid is treated as a binding and irrevocable purchase commitment for the Property. You cannot retract a bid. |
| (d) | (No Purchase Cancellation) Where a Vendor uses a non-auction format, a purchase commitment facility may be available for some of the listed Properties on the Digital Applications. Such a facility allows you to click a “Commit now” or similarly labelled button in a listing for a binding, irrevocable commitment for purchase of the Property. |
| (e) | (Commitment Fee) You must make a consideration payment for any Property you commit to purchasing (“Commitment Fee”). The required sum of Commitment Fee is indicated on the relevant Digital Applications’ pricing page or screen. |
| (f) | (Search, Verification and Professional Advice) You must undertake any necessary search and verification and seek independent legal advice and any other appropriate additional professional advice to satisfy yourself of: |
| (i) the legal identity and capacity of any other party involved in any transaction facilitated by your use of the Digital Applications; and | |
| (ii) the suitability and particulars of, and encumbrances and interests on a Property that you bid on or commit to purchase. | |
| (g) | (No Feedback Abuse) You must not abuse any feedback or rating system on the Digital Applications. |
| (h) | (Report to Biownr) You may report to us if you have a concern about a Vendor’s behaviour for us to investigate. |
| 3.5 | Warranties |
| (a) Each Registered User warrants and represents that: the Registered User has full power and authority to enter into these Terms of Service and perform the Registered User’s obligations under these Terms of Service; the Registered User is the sole unencumbered owner of the copyright in the Content; the Content does not infringe any rights of any third party including rights of copyright nor does it contain any matter which is unlawful and/or defamatory; and the Registered User has all necessary licences, consents and permissions for material included in the Content. The Registered User indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Registered User of these warranties. | |
| (b) Each Vendor warrants and represents that: the Vendor has all necessary power and authority to sell any Property listed by the Vendor on the Digital Applications; the Vendor has obtained independent legal advice as regards any proposed sale or auction of the relevant Property; no claim, action, litigation, arbitration or administrative proceeding has been commenced or is pending or threatened before any court or other tribunal or governmental agency involving the Vendor with respect to the Property that the Vendor lists on the Digital Applications; all statements in the Content purporting to be facts are accurate; and all information and documents given by the Vendor or its representatives in the course of auction or sale of the Property are true and accurate in all respects. The Vendor indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Vendor of these warranties. | |
| (c) Each Purchaser warrants and represents that: the Purchaser has all necessary power and authority to bid on or commit to purchase any Property listed on the Digital Applications; the Purchaser has obtained independent legal advice as regards any proposed bid on or commit to purchase of a Property; and the Purchaser has complied in all respects with all legislation and regulations relating to the bidding or commitment for purchase of a Property in the relevant jurisdiction. The Purchaser indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Purchaser of these warranties. | |
| 4. | LICENCE, PERMITTED USE AND PROHIBITIONS |
| 4.1 | Your use of the Digital Applications must not breach these Terms of Service. |
| 4.2 | You may not: |
| (a) for commercial or unlawful purposes solicit personal information from anyone under 18 or solicit passwords or personally identifying information; | |
| (b) harvest or collect user information or email addresses from the Digital Applications for commercial or unlawful use or unsolicited communications; | |
| (c) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person, organisation or entity; or | |
| (d) use automated scripts to collect information from or otherwise interact with the Digital Applications or its users. | |
| 4.3 | You must act in good faith and state your views or opinions in good faith. Your stated personal views or opinions must be personal views or opinions you in fact hold. Strictly prohibited are statements for or on behalf of clients or third parties by lobbyists, public relations consultants, advocates or any of their respective employees, contractors, agents or representatives. Also strictly prohibited is any activity involving any form of payment in cash or in kind for any comment you make on the Digital Applications. |
| 5. | INTELLECTUAL PROPERTY |
| 5.1 | The Content and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications are the property of Biownr or their respective owners, unless noted otherwise. |
| 5.2 | The Digital Applications are protected by law including copyright in any layout, text, images, photographs, illustrations, animations, audio clips, video clips, programming and HTML code. No part of the Digital Applications may be used, copied, modified, changed, distributed, republished or transmitted, except for permitted uses. All rights not specifically and expressly granted in these Terms of Service or on the Digital Applications are reserved by Biownr or their respective owners. |
| 5.3 | For any written permissions, email Biownr (see email address on the Digital Applications) or the relevant copyright owner or controller. |
| 5.4 | All names, logos and signs on the Digital Applications are the trade marks of their respective owners. This is our trade mark: Biownr®. |
| 6. | LICENCE AND CONSENT |
| 6.1 | By posting any communication to the Digital Applications (eg comment, enquiry, rating, forum post or other message), you automatically grant to Biownr, its licensees and assigns an irrevocable, perpetual, non-exclusive, free of charge licence throughout the world for the purposes of using, publishing and displaying that communication. |
| 6.2 | You irrevocably consent to all Biownr’s acts or omissions (including as an author and publisher) as they may affect any moral rights you may have in that communication or uploaded Content. Specifically you consent to Biownr, or others authorised by Biownr, carrying out any change, re-arrangement, mixing, translation, reformat, adaptation, re-purposing, re-design, addition, deletion or editing of that communication or Content and combination of it with other material. |
| 6.3 | Biownr accepts no liability for such communication. It is the opinion, responsibility and legal liability of its maker or poster. |
| 6.4 | It is a condition of your access to the Digital Applications, that you must not post any such communication that in Biownr’s opinion is: |
| (a) in any way unlawful, threatening, intimidating, harassing, stalking, inflammatory, fraudulent, abusive, indecent or obscene, or would inhibit use and enjoyment of the Digital Applications by others; | |
| (b) involving you in contacting anyone who has asked not to be contacted; | |
| (c) defamatory or derogatory of other persons; | |
| (d) infringing the rights of third parties, including breach of privacy obligations, intellectual property rights of others, or their moral rights (as defined in the Copyright Act 1968 (Cth)); | |
| (e) untrue, misleading or deceptive; | |
| (f) discriminatory, offensive or capable of inciting violence or hatred; | |
| (g) in breach of any applicable laws or regulations; | |
| (h) commercial advertising; | |
| (i) using offensive language; | |
| (j) using a misleading email address or otherwise manipulates identifiers which disguise the origin of information communicated or transmitted through the Digital Applications; | |
| (k) an intentional post in an irrelevant category or thread or involving an off the topic comment, a repeated post with the same or similar information unless it is a recurring activity, or an otherwise unreasonable load on the Digital Applications; | |
| (l) an attempt to gain unauthorised access to Biownr’s computer systems or activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Digital Applications; or | |
| (m) a file or code containing a virus, trojan, worm or other malware. | |
| 6.5 | In Australia and other countries, feedback, ratings and comments may be defamatory. Biownr accepts no liability for any claim, demand, action, loss, damage, cost, charge, fine or expense that may arise from feedback, ratings or comments. You release forever and indemnify Biownr from any liability for any feedback, ratings or comments by you on the Digital Applications. |
| 6.6 | As regards your personal information, information relating to your IP address, or other data submitted or posted by you, Biownr may in certain cases be legally obligated to disclose such data to law enforcement agencies, intellectual property owners and others. Biownr may disclose such data as legally required or at its discretion following review by us. |
| 7. | COMMUNICATIONS WITH REGISTERED USERS |
| If you register as a Registered User of the Digital Applications, you agree that Biownr may from time to time send communication to you, such as alerts and enewsletters, regarding your interests, or confirmations regarding your use of the Digital Applications or Service. | |
| 8. | FACILITIES |
| 8.1 | Payment Authorisation |
| (a) The Registered User’s performance of each type of the Services may involve a fee payable to Biownr. | |
| (b) Prior to the performance of any Services, the Registered User must complete and submit to Biownr a payment authorisation form. You must enter your credit card details into the payment authorisation form. You must ensure that you have sufficient available credit on your credit card to allow any charges to be processed. You agree that if your payment is subsequently dishonoured or charged back to us, you are personally liable to us for the amount you owe us for any charges and any resulting charges or costs which we may incur. | |
| 8.2 | Property Listing |
| (a) On the Digital Applications, a Registered User may upload listing Content to create a listing for an auction or sale of a Property (“Ordinary Listing”). Biownr will not offer any assistance with the design and production of any listing Content of an Ordinary Listing. | |
| (b) A Registered User can purchase a Property listing package (“Vendor Package”) to receive assistance with advertising of a Property listing. | |
| (c) Also available to a Registered User for a fee are listing upgrade features (“Premium Concierge Upgrade”). | |
| (d) The applicable prices for publishing an Ordinary Listing on the Digital Applications, Vendor Package and Premium Concierge Upgrade are indicated on the relevant Digital Applications’ pricing page or screen. | |
| (e) Select carefully, as we do not offer refunds on any paid Ordinary Listing or Assisted Listing. | |
| 8.3 | Advertising on Third Party Affiliate Platforms |
| (a) As part of a Vendor Package or Premium Concierge Upgrade, Biownr may offer advertising services for a Registered User on a third party affiliate platform. If a Registered User selects such a Vendor Package or Premium Concierge, that Registered User must complete and submit any compliance and authorisation document supplied and requested by Biownr. | |
| (b) The personal information and contact details of a Vendor will not be disclosed to any third party affiliate platform. We will promptly forward to the relevant Vendor any enquiry generated from a third party affiliate platform listing relating to that Vendor’s property. | |
| 8.4 | Property Reports and Data |
| (a) On the Digital Applications, for a fee a Registered User can access reports and data related to a Property (“Purchaser’s Package”). The Digital Applications allow a Registered User to add or remove package inclusions to create a customised Purchaser’s Package. | |
| (b) Items offered in a Purchaser’s Package and the applicable prices for those items are available on the Digital Applications are indicated on the relevant Digital Applications’ pricing page or screen. | |
| (c) Select carefully, as we do not offer refunds on any paid Purchaser’s Package. | |
| 8.5 | Auction |
| (a) The minimum duration of an auction of any Property on the Digital Applications is twenty-four (24) hours from the time the Content of the Property is first listed on the Digital Applications. | |
| (b) The maximum duration of an auction of any Property on the Digital Applications is thirty one (31) calendar days from the date the Content of the Property is first published on the Digital Applications. | |
| (b) | (c) The first Registered User to make a bid in an auction must input a price equal to or higher than the Vendor’s listed Reserve Price. Any subsequent Registered User biding in that auction must input a price that is higher than the preceding participating Registered User’s bid. |
| (b) | (d) On request by a potential Purchaser, the Digital Applications will supply to that Purchaser the Required Documents for review. |
| (b) | (e) The participating Vendor can revise the Sale Price of the Property during the duration of an auction. |
| (b) | (f) An auction ends when: |
| (i) the duration for such auction set by the Vendor expires; or | |
| (ii) a Registered User makes a winning bid on the Property. | |
| (g) | No further bid can be made once an auction has ended. |
| (h) | Where one or more bids for a Property have been made during an auction, on expiry of such auction’s duration: |
| (i) by email or internal message on the Digital Applications, Biownr will provide the Vendor and the Purchaser who made the highest bid with their respective contact details; | |
| (ii) a Commitment Fee for that Property will be debited directly from the Purchaser’s nominated credit card; | |
| (iii) the relevant Vendor and Purchaser must contact each other to make transaction arrangements as soon as possible; and | |
| (iv) the relevant Vendor and Purchaser are both contractually bound by the result of such auction. | |
| (i) | The debited Commitment Fee will be refunded to the Purchaser’s credit after Biownr receives from the Vendor written notification that a contract for sale of that relevant Property has been exchanged. |
| (j) | If an exchange of contracts for sale of a Property does not take place within ten (10) business days of a Purchaser’s purchase commitment for or successful bid on that Property, the Purchaser will not receive any refund of the Commitment Fee debited. |
| (k) | Where no bid is made in an auction, on expiry of such auction’s duration, on the Digital Applications the Vendor may re-list Content of the Property and initiate a fresh auction. |
| 8.6 | Purchase Commitment |
| (a) As an alternative to auctioning a Property, the Vendor may specify a Sale Price for the Property in the listed Content. | |
| (b) On request by a potential Purchaser, the Digital Applications will supply the Required Documents to that Purchaser for review. | |
| (c) If such a Sale Price is available for a Property, a Purchaser may make a purchase commitment for that Property by clicking a “Commit now” or similarly labelled button. | |
| (d) Once a purchase commitment is made, by email and internal message on the Digital Applications, we will then provide the Vendor and the Purchaser with their respective contact details. | |
| (e) The relevant Vendor and Purchaser must contact each other to make transaction arrangements as soon as possible. | |
| (f) A Commitment Fee for that Property will be debited directly from the Purchaser’s nominated credit card. | |
| (g) The relevant Vendor and Purchaser are both contractually bound by such purchase commitment. | |
| (h) The debited Commitment Fee will be refunded to the Purchaser’s credit after Biownr receives from the Vendor written notification that a contract for sale of the relevant Property has been exchanged. | |
| (i) If an exchange of contracts for sale of a Property does not take place within ten (10) business days of a Purchaser’s purchase commitment for or successful bid on that Property, the Purchaser will not receive any refund of the Commitment Fee debited. | |
| 8.7 | Service Prices |
| All prices for Service on the Digital Applications are in Australian dollars and are inclusive of goods and service taxation (“GST”) or other value added tax. Prices for Service may change at any time. We will charge you the price that is displayed on the Digital Applications or communicated by us at the time you use the Service. | |
| 8.8 | Content Use Limitations and Prohibitions |
| (a) Content that you license from Digital Applications cannot be transferred or assigned by you to any other person. | |
| (b) You must not alter, delete, or conceal any copyright or other intellectual property or other notices on Content. | |
| (c) Digital rights management, intellectual property and security technology protection may be provided with or in the Content and you must not directly or indirectly circumvent, reverse engineer, decrypt, or otherwise alter, change, modify, restrict or interfere with such protection or any of the means by which we monitor and administer the protection. | |
| (d) We will use reasonable endeavours to supply the Service to you. However, despite our efforts, the Service may not be continuous, accessible or available at all times, or fault free, and we may at any time change or discontinue the Service. Also, events beyond our control might affect the Service, and you agree that we are not responsible for any effects of those events. | |
| (e) As regards the Service you are solely responsible for all Content that you upload or download. We are not responsible for any Content lost, damaged or deleted. We are not obliged to maintain a record of the Content you upload or download. | |
| (f) If we no longer have the right to make certain Content available, for any reason and at any time, you will no longer be able to obtain or use that Content from Biownr, even if you originally obtained it from us. | |
| 8.9 | Changes |
| Biownr may change or discontinue any Digital Applications or Service function, facility, feature, section, area, community, discussion group, module, service, section, menu, offering, incentive, password, or user. | |
| 8.10 | Feedback and Performance Rating System |
| (a) The feedback and performance rating system (if any) of the Digital Applications consists of comments left by other Registered Users and any composite feedback number compiled by us. The composite number (if any) without the comments does not convey that Registered User’s full user profile. | |
| (b) The overall performance rating determines a Registered User’s rating. A negative rating will decrease the rating by 1, a neutral rating will not affect the rating and a positive rating will increase the rating by 1. | |
| (c) Feedback and ratings must be honest and objective. | |
| (d) You must not include any contact details or personal information in your feedback. | |
| (e) You must not take any action which may undermine the integrity of the feedback and performance rating system. We reserve the right to automatically suspend any Registered User with feedback or ratings below an acceptable minimum determined at Biownr’s sole discretion from time to time. | |
| 8.11 | Payments Between Digital Applications Users |
| Any payment made outside of the Digital Applications is not under the control of Biownr. Biownr disclaims any and all liability with respect to such payments and will not recognise or refund, recompense or compensate for such transactions or payments. If you make a payment outside of the Digital Applications and believe you are entitled to a part or full refund, contact the relevant party directly. | |
| 9. | TAXATION |
| 9.1 | Biownr may issue tax invoices to Registered Users but has no responsibility for determining the necessity of or for issuing any invoice, or for determining, remitting, or withholding any tax or impost of any kind (including withholding tax, stamp duty, goods and services tax and any other type of value added tax) in connection with any use of the Digital Applications. |
| 9.2 | Where goods and services taxation (“GST”) applies, Biownr may deduct the GST it incurs from each user's payment and Biownr may issue the user with a tax invoice. |
| 9.3 | Each Registered User is solely responsible for determining its own obligations and compliance responsibilities (or that of any related entity) under applicable law. You and any related entity hereby jointly and separately indemnify Biownr with respect to all such obligations and responsibilities. |
| 10. | THIRD PARTY PRODUCTS AND SERVICES |
| No endorsement, recommendation or approval of any third party or its products, services, or websites is intended by any content, links or third party advertisements (including any banner ads containing embedded hyperlinks) on or to the Digital Applications or the Service. Links are provided only as a convenience. Some third party advertisements contain representations or offers by the third party advertiser which you can accept by linking to the advertiser's website and executing the relevant transaction. Such offers are not made by Biownr, and we are not responsible to you for any transactions you have with any third party. | |
| 11. | LINKS POLICY |
| You are welcome and encouraged to create links to the Digital Applications. If you are using frames, when they are activated you must ensure they do not continue to display your frames, or frames of others, around the Digital Applications pages. | |
| 12. | INDEMNITY |
| You indemnify Biownr from and against all demands, claims, actions, proceedings, settlements, liability, expenses, fines, damages, costs or losses (including but not limited to reasonable costs and disbursements on a solicitor and client basis) arising from or incurred due to your activities on or use of the Digital Applications, any breach by you of these Terms of Service, or any demand or complaint made by another user against you for any comment, submission, post or material made or added by you or authorised by you for the Digital Applications. | |
| 13. | DISCLAIMERS AND LIABILITY |
| 13.1 | The Competition and Consumer Act 2010 (Cth) and other legislation confers rights and remedies in relation to the provision of goods and services which cannot be excluded, restricted or modified. Despite anything to the contrary in these Terms of Service, the disclaimers and limitations specified in these Terms of Service only apply to the maximum extent permitted by such legislation and do not exclude, limit or modify remedies under such legislation. |
| 13.2 | All care and diligence is taken to ensure the accuracy and currency of information. However, your use of the Digital Applications is at your risk. The Digital Applications are provided “as is” and you accept and use them at your own risk. You have received no promise, guarantee, representation, warranty or undertaking regarding the profitability of or any other consequence or benefit to be obtained from use of the Digital Applications, except as expressly specified in these Terms of Service. |
| 13.3 | To the full extent it is lawful or possible to do so and except as may be expressly specified in these Terms of Service, all conditions, warranties, representations and liability, whether express or implied, are disclaimed and excluded as to the Digital Applications and their description, quality, performance or fitness for its purpose. In particular, we do not warrant that the operation or performance of the Digital Applications will be uninterrupted or error-free, except as may be expressly specified in these Terms of Service. |
| 13.4 | Biownr, its affiliates, related bodies corporate, directors, officers, agents, employees, contractors, editors, moderators, consultants, and authors with content on the Digital Applications, and the internet service provider hosting the Digital Applications make no representation and accept no responsibility or liability for: |
| (a) error, omission, service interruption, unreliability, lack of timeliness, inaccuracy, misleading information or anything done or not; | |
| (b) loss of data, theft, delays, non-deliveries, misdeliveries, or service interruptions caused by their negligence, errors or omissions; | |
| (c) demands, claims, actions, proceedings, settlements, liability, expenses, damages, costs or losses of any type which may be incurred (either actual or contingent) in the event of any loss, damage, destruction of tangible or intangible property (including equipment, computer programs and data or any loss of use of any of them), death, bodily injury, disability, sickness, disease, mental incapacity, insanity, accident or event whether relating to you or third parties, wilful, unlawful or negligent act or omission or breach of the law, violation of any statute, regulation, by-law or ordinance; or | |
| (d) special, incidental, indirect, consequential, exemplary, or punitive damages of any type (including damages for loss of profits, business interruption, or loss of reputation, data or computer programs); | |
| whether based on contract, equity, statutory law, tort, criminal law, property, bailment, trust, unjust enrichment or any other legal theory, arising out of the delivery, installation, training, use, performance or support of the Digital Applications or if you use, upload, download, or act in reliance on any representation, information or data contained, linked or distributed through the Digital Applications. | |
| 13.5 | The disclaimers limitations of liability, exclusions of liability, and recommendations in the preceding paragraphs apply to all content on the Digital Applications and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications. |
| 14. | TERMINATION |
| Without limitation to other provisions in these Terms of Service, Biownr may at its discretion refuse to provide the Service, suspend or terminate any access or account you may seek or have for the Digital Applications. Biownr may do so, for example but without limitation, if it believes you will breach or have breached these Terms of Service or have submitted false, inaccurate, untrue, unauthorised or incomplete information or Content; if a request is made by law enforcement or other government or regulatory authorities; or due to technical difficulties. This includes any access right you may have as a Registered User. Further, these Terms of Service are revocable at any time without notice and with or without cause. | |
| 15. | CONSTRUCTION |
| In these Terms of Service, unless the context otherwise requires: | |
| (a) a reference to any legislation, regulation, proclamation, ordinance, by-law, industrial award or other statutory instrument or rules includes a reference to all legislation, regulations, proclamations, ordinances, by-laws, industrial award and statutory instruments or rules amending, consolidating or replacing it or made or issued under it; | |
| (b) a reference to these Terms of Service is a reference to these Terms of Service as may be varied, supplemented, novated, or replaced from time to time; | |
| (c) words in the singular number include the plural and vice versa; | |
| (d) headings, underlines, indexes and lists of contents are for convenience only and have no effect on interpretation; | |
| (e) "including" and like terms mean "including but not limited to"; | |
| (f) a failure to comply, observe or perform an obligation constitutes a breach of an obligation; and | |
| (g) no rules of construction apply to the disadvantage of one party on the basis that it offered or drafted these Terms of Service or part of it. | |
| 16. | PRIVACY POLICY |
| By using the Digital Applications, you acknowledge that you have read our privacy policy statement and consent to it. | |
| 17. | GENERAL |
| 17.1 | Relationship of Parties |
| Nothing in these Terms of Service is to be taken to create a fiduciary relationship or a relationship of partnership, agency, employment, trust or joint venture between any of the parties. | |
| 17.2 | Limitation |
| Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Digital Applications will be barred if it is not filed within one (1) year of the cause of action arising. | |
| 17.3 | Composition |
| These Terms of Service are subject to any mandatory statutory or common law to the contrary applicable in the state of New South Wales, Australia. These Terms of Service constitute the entire agreement of the parties about its subject matter. | |
| 17.4 | Variation |
| These Terms of Service or any part of them may be varied, modified, amended, added to or substituted only by a document in writing executed by the parties. | |
| 17.5 | Waiver |
| No provision of these Terms of Service is to be taken to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision. | |
| 17.6 | Severability |
| If a provision, or part of it, of these Terms of Service is held invalid, unenforceable or illegal by a judicial authority for any reason, then that provision or part must be read down if possible but if that cannot be done then it must be severed and the balance of these Terms of Service will otherwise remain in full force | |
| 17.7 | Governing Law and Jurisdiction |
| These Terms of Service must be interpreted and governed by the law of the State of Victoria and the Commonwealth of Australia as applicable. If a dispute arises in relation to them it must be subject to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia. | |
| Copyright © Biownr 2017. All rights reserved. |
Welcome to this website or mobile applications owned and operated by Biownr Pty Ltd A.C.N. 612 344 537 (“Biownr”).
These Terms of Service apply to Biownr’s websites and mobile applications ("Digital Applications") and you should read them before using the Digital Applications.
Biownr provides property owners and buyers with an easy to use facility for bidding on or committing to purchase real property.
We are not a real estate agent or an auctioneer. The Digital Applications are provided for informational purposes. They are not intended as professional advice, or as a substitute for professional services or advice. Biownr does not act as an agent for any party; sell, buy, deal or negotiate with a party in relation to Property; or conduct the auction of the Property.
We provide an online service to enable users to promote, market and advertise Property for sale by private sale or by auction.
| 1. | DEFINITIONS |
| 1.1 | “You” and “your” refer to all users of the Digital Applications or Service, including Registered Users, and “we”, “us” and “our” refer to Biownr. References to users must be read as being also a reference to Registered Users. |
| 1.2 | “Service” means: |
| (a) the Digital Applications’ Content upload service for Registered Users | |
| (b) the Digital Applications’ Content download service for you; | |
| (c) the Digital Applications’ auction facility; and | |
| (d) the Digital Applications’ sale and purchase commitment facility, | |
| in all cases for use in accordance with these Terms of Service. In the case of Registered Users, references to the Digital Applications include a reference to the Service. | |
| 1.3 | “Property” means a property that is offered by a Registered User for auction on the Digital Applications. |
| 1.4 | “Registered User” means anyone who has signed up for the Service and has obtained a user ID to log into the Service. Registered Users may set a profile by giving us certain additional information, which we may refer to as your “account”. |
| 1.5 | “Vendor” means any Registered User who publishes on the Digital Applications any Property. |
| 1.6 | “Purchaser” means any Registered User who bids on the Digital Applications for any Vendor Property. |
| 1.7 | “Content” means: |
| (a) all digital files (whether courseware description content, images and text, photos, slides, videos, illustrations, gifs, animations, maps and graphics) and products provided on the Digital Applications; | |
| (b) associated metadata (including file author or creator, publisher, language, intellectual property notices, format, version, edition, date, ISSN and ISBN); and | |
| (c) other proprietary information, materials and products, and all copyright protected or otherwise legally protectable elements and functions of the Digital Applications or the Service including the selection, sequence, look and feel, layout and arrangement of items on the Digital Applications. | |
| 2. | LEGALLY BINDING CONTRACT |
| 2.1 | The terms of service in force at any time are published on the Digital Applications and you will be taken to have accepted them by accessing or using the Digital Applications. This is the case whether or not you become a Registered User and regardless of a Registered User’s class, level or status. |
| 2.2 | These Terms of Service constitute a binding legal contract between you and Biownr. You will be legally bound when you agree to accept the Service, click an "I agree," "I consent," or other similarly worded "button", check box or entry field on the Digital Applications with your mouse, finger, keystroke, or other data entry mechanism. Those actions are a legal equivalent of your handwritten signature. |
| 2.3 | The Digital Applications and these Terms of Service may change without notice, so do check them from time to time. A revision date appears at the beginning of the Terms of Service specifying the date of the last revision. |
| 2.4 | If Biownr develops revised terms of service, then on their publication on the Digital Applications they will supersede those they replace. If you subsequently access or use the Digital Applications or the Service you will be taken to have accepted the revised terms of service. If you do not agree with any change or revision of applicable terms of service at any time, do not access, use, upload, submit information to or download from the Digital Applications or use the Service. |
| 2.5 | Specific Digital Applications or Service functions, facilities, features, sections, areas, communities, discussion groups, modules, services, sections, menus, offerings and incentives may have provisions additional to these Terms of Service. Those additional provisions must be read with these Terms of Service. If there is an inconsistency between such provisions and these Terms of Service then the provisions of these Terms of Service will prevail to the extent of such inconsistency and the parties must take all necessary steps to remove that inconsistency. |
| 2.6 | You represent that you are either 18 years of age or older and are fully qualified and empowered to enter into these Terms of Service or you represent you are a minor over the age of 16 and warrant that you have obtained parental consent. |
| 3. | REGISTERED USER – OBLIGATIONS AND WARRANTIES |
| 3.1 | Registration and Use |
| (a) Only Registered Users are permitted to use the Service. | |
| (b) To become a Registered User, you must be 18 years of age or older and have the legal capacity to enter into property transactions. | |
| (c) A Registered User is permitted to have only one account. | |
| (d) A Registered User will have a unique user ID, that comprises the email address and the initial (or any subsequent) confidential password the user provides to become or remain a Registered User (or we may assign an initial password which the Registered User may change later). We may provide a Registered User with additional codes or passwords necessary to access and use specific functions, facilities and features of the Service or the Digital Applications. | |
| (e) Registered Users may be required to submit personal information such as full name, email address, postal address, postcode and additional information for territory and digital media rights management, security or identity verification purposes. We may also ask Registered Users to provide us with optional information about themselves, which will enable us to personalise and customise the Service. We will indicate what information is required and what information is optional. | |
| 3.2 | Registered User’s Obligations |
| (a) Each Registered User warrants that the Registered User’s details provided to Biownr are true and accurate, including full names, affiliations, phone number and email address. | |
| (b) Registered Users must ensure that the Content they upload is accurate. | |
| (c) Do not upload files, photos or software or post messages to the Digital Applications that contain material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own the rights to them or control the rights under all necessary authority, licenses, permissions, consents and approvals. | |
| (d) Each Registered User: | |
| (i) is responsible for the security and use of the Registered User’s user name and password and must take all reasonable steps to ensure they are kept confidential and secure; | |
| (ii) must not allow any third party or unauthorised person to access the Digital Applications using that user name or password; and | |
| (iii) must immediately notify Biownr of any unauthorised use of a user name or password or any other breach of security. | |
| (e) Each Registered User warrants that the Registered User’s details provided to Biownr are true and accurate, including personal names, affiliations, and email address. | |
| (f) Biownr is not liable for any loss or damage arising from a Registered User’s failure to comply with obligations in these Terms of Service. | |
| 3.3 | Vendor’s Obligations |
| (a) | (Listing Requirements Compliance) Registered Users must comply with all Property listing requirements set out in these Terms of Service or by reference on the Digital Applications. You must make correct and accurate Property listing descriptions and you must categorise listings appropriately. |
| (b) | (Irrevocable Offer) By uploading the Content and listing the Property, you are making an irrevocable offer to sell the Property at either the: |
| (i) (auction) highest bidding price made by any Purchaser; or | |
| (ii) (sale) price appearing linked to the Content description. | |
| (c) | (Required Documents) You must upload to the Digital Applications a proposed contract for sale of your Property (together with any document required by relevant laws) drafted by a solicitor or licensed conveyancer in the Property’s jurisdiction (“Required Documents”). You must authorise Biownr to make available to any Registered User interested in bidding on or purchasing your Property your supplied Required Documents on the Digital Applications. |
| (d) | (Listing Content) You must specify the following applicable information in the listing Content of your Property: |
| • an initial minimum price for an auction (“Reserve Price”) or a fixed price (“Sale Price”) or both; | |
| • an auction duration; | |
| • Property address; | |
| • Property features (including number of bedroom(s), bathroom(s), any parking space and any recreational facility such as gym and swimming pool); | |
| • Property description; | |
| • any defect in the Property; | |
| • Property inspection date and time; | |
| • payment method; and | |
| • any information that you are required to provide under any applicable laws and regulations. | |
| (e) | (Review Listing Content) You must review and update listing Content when there is a change in a Property’s status or condition. |
| (f) | (No Bidding Manipulation) You are prohibited from yourself bidding, or procuring others to bid, on any Property with the intent to artificially increase its price or desirability. |
| (g) | (No Duplicate Property) You must not upload separate listing Content onto the Digital Applications for identical Properties. |
| (h) | (Contract Exchange Notification) You must notify Biownr in writing that exchange of contracts for sale of your Property has taken place within seven (7) business days of the date of exchange. |
| (i) | (No Intellectual Property Breach) Do not upload files, photos or software or post messages to the Digital Applications that contain material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own the rights to them or control the rights under all necessary authority, licenses, permissions, consents and approvals. However, you may make links (ie hypertext links). |
| 3.4 | Purchaser’s Obligations |
| (a) | (Read Listing Content) You must read the Vendor’s listing Content before you bid or commit to purchase that Vendor’s Property. |
| (b) | (Genuine Interest) You must only bid on a Property if you intend to commit to purchase that Property. |
| (c) | (No Bid Retraction) Where a Vendor uses an auction-style format, allowing you to bid on a Property, and you win the auction, your winning bid is treated as a binding and irrevocable purchase commitment for the Property. You cannot retract a bid. |
| (d) | (No Purchase Cancellation) Where a Vendor uses a non-auction format, a purchase commitment facility may be available for some of the listed Properties on the Digital Applications. Such a facility allows you to click a “Commit now” or similarly labelled button in a listing for a binding, irrevocable commitment for purchase of the Property. |
| (e) | (Commitment Fee) You must make a consideration payment for any Property you commit to purchasing (“Commitment Fee”). The required sum of Commitment Fee is indicated on the relevant Digital Applications’ pricing page or screen. |
| (f) | (Search, Verification and Professional Advice) You must undertake any necessary search and verification and seek independent legal advice and any other appropriate additional professional advice to satisfy yourself of: |
| (i) the legal identity and capacity of any other party involved in any transaction facilitated by your use of the Digital Applications; and | |
| (ii) the suitability and particulars of, and encumbrances and interests on a Property that you bid on or commit to purchase. | |
| (g) | (No Feedback Abuse) You must not abuse any feedback or rating system on the Digital Applications. |
| (h) | (Report to Biownr) You may report to us if you have a concern about a Vendor’s behaviour for us to investigate. |
| 3.5 | Warranties |
| (a) Each Registered User warrants and represents that: the Registered User has full power and authority to enter into these Terms of Service and perform the Registered User’s obligations under these Terms of Service; the Registered User is the sole unencumbered owner of the copyright in the Content; the Content does not infringe any rights of any third party including rights of copyright nor does it contain any matter which is unlawful and/or defamatory; and the Registered User has all necessary licences, consents and permissions for material included in the Content. The Registered User indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Registered User of these warranties. | |
| (b) Each Vendor warrants and represents that: the Vendor has all necessary power and authority to sell any Property listed by the Vendor on the Digital Applications; the Vendor has obtained independent legal advice as regards any proposed sale or auction of the relevant Property; no claim, action, litigation, arbitration or administrative proceeding has been commenced or is pending or threatened before any court or other tribunal or governmental agency involving the Vendor with respect to the Property that the Vendor lists on the Digital Applications; all statements in the Content purporting to be facts are accurate; and all information and documents given by the Vendor or its representatives in the course of auction or sale of the Property are true and accurate in all respects. The Vendor indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Vendor of these warranties. | |
| (c) Each Purchaser warrants and represents that: the Purchaser has all necessary power and authority to bid on or commit to purchase any Property listed on the Digital Applications; the Purchaser has obtained independent legal advice as regards any proposed bid on or commit to purchase of a Property; and the Purchaser has complied in all respects with all legislation and regulations relating to the bidding or commitment for purchase of a Property in the relevant jurisdiction. The Purchaser indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Purchaser of these warranties. | |
| 4. | LICENCE, PERMITTED USE AND PROHIBITIONS |
| 4.1 | Your use of the Digital Applications must not breach these Terms of Service. |
| 4.2 | You may not: |
| (a) for commercial or unlawful purposes solicit personal information from anyone under 18 or solicit passwords or personally identifying information; | |
| (b) harvest or collect user information or email addresses from the Digital Applications for commercial or unlawful use or unsolicited communications; | |
| (c) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person, organisation or entity; or | |
| (d) use automated scripts to collect information from or otherwise interact with the Digital Applications or its users. | |
| 4.3 | You must act in good faith and state your views or opinions in good faith. Your stated personal views or opinions must be personal views or opinions you in fact hold. Strictly prohibited are statements for or on behalf of clients or third parties by lobbyists, public relations consultants, advocates or any of their respective employees, contractors, agents or representatives. Also strictly prohibited is any activity involving any form of payment in cash or in kind for any comment you make on the Digital Applications. |
| 5. | INTELLECTUAL PROPERTY |
| 5.1 | The Content and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications are the property of Biownr or their respective owners, unless noted otherwise. |
| 5.2 | The Digital Applications are protected by law including copyright in any layout, text, images, photographs, illustrations, animations, audio clips, video clips, programming and HTML code. No part of the Digital Applications may be used, copied, modified, changed, distributed, republished or transmitted, except for permitted uses. All rights not specifically and expressly granted in these Terms of Service or on the Digital Applications are reserved by Biownr or their respective owners. |
| 5.3 | For any written permissions, email Biownr (see email address on the Digital Applications) or the relevant copyright owner or controller. |
| 5.4 | All names, logos and signs on the Digital Applications are the trade marks of their respective owners. This is our trade mark: Biownr®. |
| 6. | LICENCE AND CONSENT |
| 6.1 | By posting any communication to the Digital Applications (eg comment, enquiry, rating, forum post or other message), you automatically grant to Biownr, its licensees and assigns an irrevocable, perpetual, non-exclusive, free of charge licence throughout the world for the purposes of using, publishing and displaying that communication. |
| 6.2 | You irrevocably consent to all Biownr’s acts or omissions (including as an author and publisher) as they may affect any moral rights you may have in that communication or uploaded Content. Specifically you consent to Biownr, or others authorised by Biownr, carrying out any change, re-arrangement, mixing, translation, reformat, adaptation, re-purposing, re-design, addition, deletion or editing of that communication or Content and combination of it with other material. |
| 6.3 | Biownr accepts no liability for such communication. It is the opinion, responsibility and legal liability of its maker or poster. |
| 6.4 | It is a condition of your access to the Digital Applications, that you must not post any such communication that in Biownr’s opinion is: |
| (a) in any way unlawful, threatening, intimidating, harassing, stalking, inflammatory, fraudulent, abusive, indecent or obscene, or would inhibit use and enjoyment of the Digital Applications by others; | |
| (b) involving you in contacting anyone who has asked not to be contacted; | |
| (c) defamatory or derogatory of other persons; | |
| (d) infringing the rights of third parties, including breach of privacy obligations, intellectual property rights of others, or their moral rights (as defined in the Copyright Act 1968 (Cth)); | |
| (e) untrue, misleading or deceptive; | |
| (f) discriminatory, offensive or capable of inciting violence or hatred; | |
| (g) in breach of any applicable laws or regulations; | |
| (h) commercial advertising; | |
| (i) using offensive language; | |
| (j) using a misleading email address or otherwise manipulates identifiers which disguise the origin of information communicated or transmitted through the Digital Applications; | |
| (k) an intentional post in an irrelevant category or thread or involving an off the topic comment, a repeated post with the same or similar information unless it is a recurring activity, or an otherwise unreasonable load on the Digital Applications; | |
| (l) an attempt to gain unauthorised access to Biownr’s computer systems or activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Digital Applications; or | |
| (m) a file or code containing a virus, trojan, worm or other malware. | |
| 6.5 | In Australia and other countries, feedback, ratings and comments may be defamatory. Biownr accepts no liability for any claim, demand, action, loss, damage, cost, charge, fine or expense that may arise from feedback, ratings or comments. You release forever and indemnify Biownr from any liability for any feedback, ratings or comments by you on the Digital Applications. |
| 6.6 | As regards your personal information, information relating to your IP address, or other data submitted or posted by you, Biownr may in certain cases be legally obligated to disclose such data to law enforcement agencies, intellectual property owners and others. Biownr may disclose such data as legally required or at its discretion following review by us. |
| 7. | COMMUNICATIONS WITH REGISTERED USERS |
| If you register as a Registered User of the Digital Applications, you agree that Biownr may from time to time send communication to you, such as alerts and enewsletters, regarding your interests, or confirmations regarding your use of the Digital Applications or Service. | |
| 8. | FACILITIES |
| 8.1 | Payment Authorisation |
| (a) The Registered User’s performance of each type of the Services may involve a fee payable to Biownr. | |
| (b) Prior to the performance of any Services, the Registered User must complete and submit to Biownr a payment authorisation form. You must enter your credit card details into the payment authorisation form. You must ensure that you have sufficient available credit on your credit card to allow any charges to be processed. You agree that if your payment is subsequently dishonoured or charged back to us, you are personally liable to us for the amount you owe us for any charges and any resulting charges or costs which we may incur. | |
| 8.2 | Property Listing |
| (a) On the Digital Applications, a Registered User may upload listing Content to create a listing for an auction or sale of a Property (“Ordinary Listing”). Biownr will not offer any assistance with the design and production of any listing Content of an Ordinary Listing. | |
| (b) A Registered User can purchase a Property listing package (“Vendor Package”) to receive assistance with advertising of a Property listing. | |
| (c) Also available to a Registered User for a fee are listing upgrade features (“Premium Concierge Upgrade”). | |
| (d) The applicable prices for publishing an Ordinary Listing on the Digital Applications, Vendor Package and Premium Concierge Upgrade are indicated on the relevant Digital Applications’ pricing page or screen. | |
| (e) Select carefully, as we do not offer refunds on any paid Ordinary Listing or Assisted Listing. | |
| 8.3 | Advertising on Third Party Affiliate Platforms |
| (a) As part of a Vendor Package or Premium Concierge Upgrade, Biownr may offer advertising services for a Registered User on a third party affiliate platform. If a Registered User selects such a Vendor Package or Premium Concierge, that Registered User must complete and submit any compliance and authorisation document supplied and requested by Biownr. | |
| (b) The personal information and contact details of a Vendor will not be disclosed to any third party affiliate platform. We will promptly forward to the relevant Vendor any enquiry generated from a third party affiliate platform listing relating to that Vendor’s property. | |
| 8.4 | Property Reports and Data |
| (a) On the Digital Applications, for a fee a Registered User can access reports and data related to a Property (“Purchaser’s Package”). The Digital Applications allow a Registered User to add or remove package inclusions to create a customised Purchaser’s Package. | |
| (b) Items offered in a Purchaser’s Package and the applicable prices for those items are available on the Digital Applications are indicated on the relevant Digital Applications’ pricing page or screen. | |
| (c) Select carefully, as we do not offer refunds on any paid Purchaser’s Package. | |
| 8.5 | Auction |
| (a) The minimum duration of an auction of any Property on the Digital Applications is twenty-four (24) hours from the time the Content of the Property is first listed on the Digital Applications. | |
| (b) The maximum duration of an auction of any Property on the Digital Applications is thirty one (31) calendar days from the date the Content of the Property is first published on the Digital Applications. | |
| (b) | (c) The first Registered User to make a bid in an auction must input a price equal to or higher than the Vendor’s listed Reserve Price. Any subsequent Registered User biding in that auction must input a price that is higher than the preceding participating Registered User’s bid. |
| (b) | (d) On request by a potential Purchaser, the Digital Applications will supply to that Purchaser the Required Documents for review. |
| (b) | (e) The participating Vendor can revise the Sale Price of the Property during the duration of an auction. |
| (b) | (f) An auction ends when: |
| (i) the duration for such auction set by the Vendor expires; or | |
| (ii) a Registered User makes a winning bid on the Property. | |
| (g) | No further bid can be made once an auction has ended. |
| (h) | Where one or more bids for a Property have been made during an auction, on expiry of such auction’s duration: |
| (i) by email or internal message on the Digital Applications, Biownr will provide the Vendor and the Purchaser who made the highest bid with their respective contact details; | |
| (ii) a Commitment Fee for that Property will be debited directly from the Purchaser’s nominated credit card; | |
| (iii) the relevant Vendor and Purchaser must contact each other to make transaction arrangements as soon as possible; and | |
| (iv) the relevant Vendor and Purchaser are both contractually bound by the result of such auction. | |
| (i) | The debited Commitment Fee will be refunded to the Purchaser’s credit after Biownr receives from the Vendor written notification that a contract for sale of that relevant Property has been exchanged. |
| (j) | If an exchange of contracts for sale of a Property does not take place within ten (10) business days of a Purchaser’s purchase commitment for or successful bid on that Property, the Purchaser will not receive any refund of the Commitment Fee debited. |
| (k) | Where no bid is made in an auction, on expiry of such auction’s duration, on the Digital Applications the Vendor may re-list Content of the Property and initiate a fresh auction. |
| 8.6 | Purchase Commitment |
| (a) As an alternative to auctioning a Property, the Vendor may specify a Sale Price for the Property in the listed Content. | |
| (b) On request by a potential Purchaser, the Digital Applications will supply the Required Documents to that Purchaser for review. | |
| (c) If such a Sale Price is available for a Property, a Purchaser may make a purchase commitment for that Property by clicking a “Commit now” or similarly labelled button. | |
| (d) Once a purchase commitment is made, by email and internal message on the Digital Applications, we will then provide the Vendor and the Purchaser with their respective contact details. | |
| (e) The relevant Vendor and Purchaser must contact each other to make transaction arrangements as soon as possible. | |
| (f) A Commitment Fee for that Property will be debited directly from the Purchaser’s nominated credit card. | |
| (g) The relevant Vendor and Purchaser are both contractually bound by such purchase commitment. | |
| (h) The debited Commitment Fee will be refunded to the Purchaser’s credit after Biownr receives from the Vendor written notification that a contract for sale of the relevant Property has been exchanged. | |
| (i) If an exchange of contracts for sale of a Property does not take place within ten (10) business days of a Purchaser’s purchase commitment for or successful bid on that Property, the Purchaser will not receive any refund of the Commitment Fee debited. | |
| 8.7 | Service Prices |
| All prices for Service on the Digital Applications are in Australian dollars and are inclusive of goods and service taxation (“GST”) or other value added tax. Prices for Service may change at any time. We will charge you the price that is displayed on the Digital Applications or communicated by us at the time you use the Service. | |
| 8.8 | Content Use Limitations and Prohibitions |
| (a) Content that you license from Digital Applications cannot be transferred or assigned by you to any other person. | |
| (b) You must not alter, delete, or conceal any copyright or other intellectual property or other notices on Content. | |
| (c) Digital rights management, intellectual property and security technology protection may be provided with or in the Content and you must not directly or indirectly circumvent, reverse engineer, decrypt, or otherwise alter, change, modify, restrict or interfere with such protection or any of the means by which we monitor and administer the protection. | |
| (d) We will use reasonable endeavours to supply the Service to you. However, despite our efforts, the Service may not be continuous, accessible or available at all times, or fault free, and we may at any time change or discontinue the Service. Also, events beyond our control might affect the Service, and you agree that we are not responsible for any effects of those events. | |
| (e) As regards the Service you are solely responsible for all Content that you upload or download. We are not responsible for any Content lost, damaged or deleted. We are not obliged to maintain a record of the Content you upload or download. | |
| (f) If we no longer have the right to make certain Content available, for any reason and at any time, you will no longer be able to obtain or use that Content from Biownr, even if you originally obtained it from us. | |
| 8.9 | Changes |
| Biownr may change or discontinue any Digital Applications or Service function, facility, feature, section, area, community, discussion group, module, service, section, menu, offering, incentive, password, or user. | |
| 8.10 | Feedback and Performance Rating System |
| (a) The feedback and performance rating system (if any) of the Digital Applications consists of comments left by other Registered Users and any composite feedback number compiled by us. The composite number (if any) without the comments does not convey that Registered User’s full user profile. | |
| (b) The overall performance rating determines a Registered User’s rating. A negative rating will decrease the rating by 1, a neutral rating will not affect the rating and a positive rating will increase the rating by 1. | |
| (c) Feedback and ratings must be honest and objective. | |
| (d) You must not include any contact details or personal information in your feedback. | |
| (e) You must not take any action which may undermine the integrity of the feedback and performance rating system. We reserve the right to automatically suspend any Registered User with feedback or ratings below an acceptable minimum determined at Biownr’s sole discretion from time to time. | |
| 8.11 | Payments Between Digital Applications Users |
| Any payment made outside of the Digital Applications is not under the control of Biownr. Biownr disclaims any and all liability with respect to such payments and will not recognise or refund, recompense or compensate for such transactions or payments. If you make a payment outside of the Digital Applications and believe you are entitled to a part or full refund, contact the relevant party directly. | |
| 9. | TAXATION |
| 9.1 | Biownr may issue tax invoices to Registered Users but has no responsibility for determining the necessity of or for issuing any invoice, or for determining, remitting, or withholding any tax or impost of any kind (including withholding tax, stamp duty, goods and services tax and any other type of value added tax) in connection with any use of the Digital Applications. |
| 9.2 | Where goods and services taxation (“GST”) applies, Biownr may deduct the GST it incurs from each user's payment and Biownr may issue the user with a tax invoice. |
| 9.3 | Each Registered User is solely responsible for determining its own obligations and compliance responsibilities (or that of any related entity) under applicable law. You and any related entity hereby jointly and separately indemnify Biownr with respect to all such obligations and responsibilities. |
| 10. | THIRD PARTY PRODUCTS AND SERVICES |
| No endorsement, recommendation or approval of any third party or its products, services, or websites is intended by any content, links or third party advertisements (including any banner ads containing embedded hyperlinks) on or to the Digital Applications or the Service. Links are provided only as a convenience. Some third party advertisements contain representations or offers by the third party advertiser which you can accept by linking to the advertiser's website and executing the relevant transaction. Such offers are not made by Biownr, and we are not responsible to you for any transactions you have with any third party. | |
| 11. | LINKS POLICY |
| You are welcome and encouraged to create links to the Digital Applications. If you are using frames, when they are activated you must ensure they do not continue to display your frames, or frames of others, around the Digital Applications pages. | |
| 12. | INDEMNITY |
| You indemnify Biownr from and against all demands, claims, actions, proceedings, settlements, liability, expenses, fines, damages, costs or losses (including but not limited to reasonable costs and disbursements on a solicitor and client basis) arising from or incurred due to your activities on or use of the Digital Applications, any breach by you of these Terms of Service, or any demand or complaint made by another user against you for any comment, submission, post or material made or added by you or authorised by you for the Digital Applications. | |
| 13. | DISCLAIMERS AND LIABILITY |
| 13.1 | The Competition and Consumer Act 2010 (Cth) and other legislation confers rights and remedies in relation to the provision of goods and services which cannot be excluded, restricted or modified. Despite anything to the contrary in these Terms of Service, the disclaimers and limitations specified in these Terms of Service only apply to the maximum extent permitted by such legislation and do not exclude, limit or modify remedies under such legislation. |
| 13.2 | All care and diligence is taken to ensure the accuracy and currency of information. However, your use of the Digital Applications is at your risk. The Digital Applications are provided “as is” and you accept and use them at your own risk. You have received no promise, guarantee, representation, warranty or undertaking regarding the profitability of or any other consequence or benefit to be obtained from use of the Digital Applications, except as expressly specified in these Terms of Service. |
| 13.3 | To the full extent it is lawful or possible to do so and except as may be expressly specified in these Terms of Service, all conditions, warranties, representations and liability, whether express or implied, are disclaimed and excluded as to the Digital Applications and their description, quality, performance or fitness for its purpose. In particular, we do not warrant that the operation or performance of the Digital Applications will be uninterrupted or error-free, except as may be expressly specified in these Terms of Service. |
| 13.4 | Biownr, its affiliates, related bodies corporate, directors, officers, agents, employees, contractors, editors, moderators, consultants, and authors with content on the Digital Applications, and the internet service provider hosting the Digital Applications make no representation and accept no responsibility or liability for: |
| (a) error, omission, service interruption, unreliability, lack of timeliness, inaccuracy, misleading information or anything done or not; | |
| (b) loss of data, theft, delays, non-deliveries, misdeliveries, or service interruptions caused by their negligence, errors or omissions; | |
| (c) demands, claims, actions, proceedings, settlements, liability, expenses, damages, costs or losses of any type which may be incurred (either actual or contingent) in the event of any loss, damage, destruction of tangible or intangible property (including equipment, computer programs and data or any loss of use of any of them), death, bodily injury, disability, sickness, disease, mental incapacity, insanity, accident or event whether relating to you or third parties, wilful, unlawful or negligent act or omission or breach of the law, violation of any statute, regulation, by-law or ordinance; or | |
| (d) special, incidental, indirect, consequential, exemplary, or punitive damages of any type (including damages for loss of profits, business interruption, or loss of reputation, data or computer programs); | |
| whether based on contract, equity, statutory law, tort, criminal law, property, bailment, trust, unjust enrichment or any other legal theory, arising out of the delivery, installation, training, use, performance or support of the Digital Applications or if you use, upload, download, or act in reliance on any representation, information or data contained, linked or distributed through the Digital Applications. | |
| 13.5 | The disclaimers limitations of liability, exclusions of liability, and recommendations in the preceding paragraphs apply to all content on the Digital Applications and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications. |
| 14. | TERMINATION |
| Without limitation to other provisions in these Terms of Service, Biownr may at its discretion refuse to provide the Service, suspend or terminate any access or account you may seek or have for the Digital Applications. Biownr may do so, for example but without limitation, if it believes you will breach or have breached these Terms of Service or have submitted false, inaccurate, untrue, unauthorised or incomplete information or Content; if a request is made by law enforcement or other government or regulatory authorities; or due to technical difficulties. This includes any access right you may have as a Registered User. Further, these Terms of Service are revocable at any time without notice and with or without cause. | |
| 15. | CONSTRUCTION |
| In these Terms of Service, unless the context otherwise requires: | |
| (a) a reference to any legislation, regulation, proclamation, ordinance, by-law, industrial award or other statutory instrument or rules includes a reference to all legislation, regulations, proclamations, ordinances, by-laws, industrial award and statutory instruments or rules amending, consolidating or replacing it or made or issued under it; | |
| (b) a reference to these Terms of Service is a reference to these Terms of Service as may be varied, supplemented, novated, or replaced from time to time; | |
| (c) words in the singular number include the plural and vice versa; | |
| (d) headings, underlines, indexes and lists of contents are for convenience only and have no effect on interpretation; | |
| (e) "including" and like terms mean "including but not limited to"; | |
| (f) a failure to comply, observe or perform an obligation constitutes a breach of an obligation; and | |
| (g) no rules of construction apply to the disadvantage of one party on the basis that it offered or drafted these Terms of Service or part of it. | |
| 16. | PRIVACY POLICY |
| By using the Digital Applications, you acknowledge that you have read our privacy policy statement and consent to it. | |
| 17. | GENERAL |
| 17.1 | Relationship of Parties |
| Nothing in these Terms of Service is to be taken to create a fiduciary relationship or a relationship of partnership, agency, employment, trust or joint venture between any of the parties. | |
| 17.2 | Limitation |
| Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Digital Applications will be barred if it is not filed within one (1) year of the cause of action arising. | |
| 17.3 | Composition |
| These Terms of Service are subject to any mandatory statutory or common law to the contrary applicable in the state of New South Wales, Australia. These Terms of Service constitute the entire agreement of the parties about its subject matter. | |
| 17.4 | Variation |
| These Terms of Service or any part of them may be varied, modified, amended, added to or substituted only by a document in writing executed by the parties. | |
| 17.5 | Waiver |
| No provision of these Terms of Service is to be taken to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision. | |
| 17.6 | Severability |
| If a provision, or part of it, of these Terms of Service is held invalid, unenforceable or illegal by a judicial authority for any reason, then that provision or part must be read down if possible but if that cannot be done then it must be severed and the balance of these Terms of Service will otherwise remain in full force | |
| 17.7 | Governing Law and Jurisdiction |
| These Terms of Service must be interpreted and governed by the law of the State of Victoria and the Commonwealth of Australia as applicable. If a dispute arises in relation to them it must be subject to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia. | |
| Copyright © Biownr 2017. All rights reserved. |
