Realtime Conveyancer – Master Service Terms (Service Terms)

Definitions:

All Outstanding Amounts means all and any of the Service Fee payable by You, any other amount due in relation to any Companion Product, and any other amount You owe Us under the Terms.

Business Day means a day which is not a Saturday, Sunday or public holiday in Perth, Western Australia. 

Client Form means Our form setting the commercial terms and other matters as to the supply of the Services which We provide to You in physical form by attaching them with these Service Terms or which We provide to You on online.

Commencement Date has the meaning given in Clause 2)a) of these Service Terms.

Companion Product means products and services offered by Us in addition to the Realtime Conveyancer Software.

Confidential Information in relation to a party (Disclosing Party) means any information disclosed by the Disclosing Party to the other party (Receiving Party) under these Terms that:

  1. Is by its nature confidential; 
  2. Is designated by the Disclosing Party as confidential; or 
  3. The Receiving Party knows or ought to know is confidential but does not include information that is:
    1. In the public domain otherwise than as a result of a breach of these Terms;
    2. Already known by the Receiving Party independently; or
    3. Independently developed or obtained by the Receiving Party without breach of these Terms.

Content means data and materials supplied by Us, contained within the Software, including but not limited to: matter types, and charges, automated forms, and online material provided on Our website as updated from time to time.

Continuous Use means use every other Business Day of the Services during the Initial Period, demonstrated by the number of matters and documents created by You and Your staff, in Our reasonable opinion.

Date of Access has the meaning given in clause 14)a) of these Service Terms.

Development Rates means the cost of the Software provided by Us.

Device means the hardware used by You and Users to access and use the Services.

Direct Debit means funds withdrawn from Your nominated bank account by Us in accordance with the Direct Debit Request included with the Client Form (Direct Debit Request).

Dispute means any dispute or disagreement arising out of or relating to these Terms, including any dispute arising out of or relating to the existence, formation, breach or termination of these Terms or any claim in tort, equity or pursuant to any legislation.

Eligible Data Breach has the same meaning as in the Privacy Act 1988 (Cth).

GST means:

  1. The same as in the GST Law; 
  2. Any other goods and services tax, or any tax applying to this agreement in a similar way; and
  3. Any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Information Security Policy means Our Information Security Policy as updated from time to time published at https://realtimeconveyancer.com.au/information-security-policy.  

Initial Licence Duration has the meaning given in Clause 13)a) of these Service Terms.

Initial Period means the first 90 days from the Date of Access.

Insolvency Event in relation to a party means the occurrence of any of the following:

  1. A party becomes a Chapter 5 body corporate or an insolvent under administration (both within the meaning of the Corporations Act 2001 (Cth));
  2. An application is made to a court or a resolution passed, or an order is made for the winding up or dissolution of that party;
  3. That party proposes or takes any steps to implement a scheme of arrangement or other compromise or arrangement with its creditors or any class of them; or
  4. That party is declared or taken under any applicable law to be insolvent or that party’s board of directors resolves that it is, or is likely to become at some future time, insolvent.

Intellectual Property Rights means all that industrial and intellectual property rights both in Australia and throughout the world, whether now known or devised in the future, and for the duration of the rights including any patents, copyright, registered or unregistered trademarks or service marks, registered designed and commercial names and designations, circuit layouts, database rights and rights in relation to confidential information and trade secrets, whether or not registered or registrable.  Intellectual Property Rights include the look and feel of the Service.

Internet Unavailability means Your inability to access, or Our inability to provide, the Service through the internet due to (a) causes outside of Our direct control, (b) failure or unavailability of internet access, or (c) bugs, errors, configuration problems or incompatibility of Your Devices, software, services or networks.  

ITC means information technology and communications infrastructure.

Land Titles Office means the relevant jurisdiction’s land information authority.

Laws mean (whether in Australia or any other relevant jurisdiction) all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industrial body, statutory and mandatory codes of conducts, writs, orders, injunctions, judgements, generally accepted Australian accounting principles and industry-wide non-statutory rules in force or as applicable from time to time.

Licence means the licence granted under Clause 3 of these Service Terms.

Licence Duration means the Initial Licence Duration and any Renewed Licence Duration or Renewed Licence Durations.

Notice has the meaning given by Clause 26) of these Service Terms.

On-boarding Fee means the one time, non-refundable on-boarding fee as specified in the Client Form.

Personal Information has the meaning given to it by the Privacy Laws.

Privacy Laws means the Privacy Act 1988 (Cth) and any other applicable legislation, principles, industry codes, guidelines, codes of conduct or ancillary regulation relating to privacy or the handling of Personal Information by either You or Us.

Realtime Conveyancer System Requirements or System Requirements means the Realtime System Reports published at https://realtimeconveyancer.com.au/system-requirements which are subject to change without Notice.

Realtime Conveyancer Pathway to Settlement or PTS App means the mobile software application of the same name operated by Us.

Renewed Licence Duration means any Licence Duration following the Initial Licence Duration.

Service or Services means and includes any software or service We provide as set out in a Realtime Conveyancer – Master Service Terms (Service Terms) Client From or agreed in writing with You from time to time, including but not limited to the Software provided via the internet as a service (including the executable computer programs, the source code and any related printed, electronic and online documentation and any other files that may accompany the product), the Content, any of Our websites, manuals, FAQs, support articles and all related collateral materials, logos, user interface, taglines including updated versions of the same released by Us from time to time.

Service Fee means the total amount payable by You to Us for recurring monthly periods as calculated initially as set out in the Client Form and then as adjusted under these Service Terms from time to time.

Service Level Agreement means any document of that name (if any), that We issue, amend or replace from time to time, which details any minimum Software availability targets and/or support We will provide to You.

Service Terms means this document titled Realtime Conveyancer – Master Service Terms.

Software means the Our TMS Platform, any automated forms, mobile applications or other online content as updated by Us from time to time.

Terms means these Service Terms and the Client Form and any other terms provided with the Client Form and any other forms or variations agreed by You and Us during the Licence Duration including amendments to any of the same.

Third Party Intellectual Property Claim means a demand, claim, action or proceeding that the Software or Services infringes any Australian patent, copyright or trademark right of any third party.

Transaction means the lodgement of legal documents for a party with the Land Titles Office in the relevant jurisdiction. For the purposes of these Terms (including the calculation of the Service Fee in clause 0a)i) of these Service Terms), where legal documents are lodged on behalf of the buyer and/or seller, the lodgement on behalf of the buyer and/or seller will each be considered a separate Transaction.

TMS Platform means Our Transaction Management System for use by conveyancing businesses as amended and updated from time to time.

Usage Data means data related to the use or operation of the Services, such as anonymous usage-related data and technical data collected in connection with the use of the Services.

User means a person that accesses or otherwise uses the Services for the Licence Duration as allowed under these Terms and authorised by You to do so.

User Security Policy means the Realtime Conveyancer User Security Policy published at https://realtimeconveyancer.com.au/user-security-policy which is subject to change without Notice.

We, Us, or Our means Realtime Conveyancer Pty Ltd (ACN 638 660 607), trading as Realtime Conveyancer Australia (ABN 23 638 660 607).

You or Your means the client detailed in the Client Form and, if more than one party, then each jointly and severally.

Your Data means data (including Personal Information) You or Your Users enter into the Software or Services.

Contract

  1. In return for You agreeing to pay the Service Fee We will provide the Services to You as set out in the Terms.  A contract is formed on You accepting Our Client Form (including by signing a physical Client Form or accepting a Client Form online) or on You commencing to use the Services (Commencement Date).  
  2. By using Our Services and Software, you acknowledge that You have read and understood the Terms. 

Licence

  1. Subject to these Terms and You paying Us the Service Fee, We grant You a non-exclusive, limited, non-transferable and revocable licence to access and use Our Service solely for Your internal business purposes.
  2. We or Our related companies retain all Intellectual Property Rights in the Services, Software and Content.  You assign to Us all Intellectual Property Rights in any suggestions, ideas, enhancement requests, feedback, recommendations or other information which You provide to Us relating to the Services or Software and We may use the same as We see fit.
  3. You may not reproduce, adapt, upload, link, frame, broadcast, distribute, sublicence or in any way transmit the Services or Content without Our written consent, other than to the extent provided for in these Terms.
  4. Our Trademarks and those of our related companies (whether registered or unregistered) and logos must not be used or modified by You in any way without Our prior written consent.
  5. The Services may be used only by the number of Users specified in the Client Form or as otherwise agreed by Us in writing.
  6. Your rights and obligations under these Terms are personal rights granted to You only. You may not transfer or assign any of the rights or obligations granted under these Terms to any other person or legal entity. You must not make available the Services for use by any third party without Our express prior written.
  7. You must not, and must procure that Users do not:
    1. modify, reverse-engineer, decompile, disassemble, decrypt or access the source or object code of the Software;
    2. reproduce, duplicate, copy, sell, resell, commercialise, adapt, exploit or otherwise use the Service in any way except as expressly permitted by these Terms;
    3. use the Service for any unlawful, offensive, threatening, infringing, defamatory, pornographic, obscene, or other purpose violating anyone’s rights;
    4. use the Service or any part of the same unless you have relevant licences and registrations required applicable Laws; 
    5. use the Services in a manner which would breach applicable Laws (including Privacy Laws) or which would infringe the Intellectual Property Rights of any person;
    6. use the Service in a manner that may damage Our reputation or Our goodwill;
    7. use the Service to send materials in breach of the Spam Act 2003 (Cth); and/or
    8. send, store, or upload any malicious code or virus of malicious or destructive nature or transmit illegal materials.
  8. Failure by You to comply with any of the terms under the 3) will be considered a material breach of these Terms and We may terminate the Terms immediately.

Services

  1. The Services comprising the Software will be provided to you online via the internet by a browser approved by Us from time to time.  You are solely responsible for obtaining and maintaining, at Your cost, all equipment needed to access the Services including but not limited to internet access and Devices.  In addition, certain functionality provided by the Services can only be utilised by You if You have applicable third party software or use rights (including, for example, Microsoft Word and access to PEXA). 
  2. We will use commercially reasonable efforts to make the Services generally available to You.  However, We are not liable to You for interruptions to the availability of Services as a result of (i) downtime for scheduled or emergency maintenance (ii) Internet Unavailability, (iii) Your acts or omissions or failure to comply with the Realtime Conveyancer System Requirements, or (iv) force majeure events under clause 21).  If at any time We issue a Service Level Agreement then the provisions as to minimum monthly Software availability targets in the same will apply to these Service Terms. 
  3. The maximum number of Users who will access the Services should not exceed the number of Users specified in the Client Form or as otherwise agreed by Us in writing.  Access by such Users will be subject to Your compliance with these Terms, commence on the Commencement Date and continue for the Licence Duration.
  4. You may permit the Users to access and use the Services subject to You ensuring each User who accesses or uses the Services complies with the applicable conditions and obligations of these Service Terms (especially those obligations relating to Your use of the Services, Our Intellectual Property Rights, the protection and use of User login details and compliance with Privacy Laws) and that the Services are not:
    1. Accessed by more than the number of Users specified in the Client Form or as agreed by Us in writing;
    2. Transferred from You to any other entity or the access rights to the Services otherwise shared or transferred between different individuals; and
    3. Used on no more than one Device per User at any one time, even though the Services may be accessed on multiple Devices at separate times by the same User.
  5. You may request to amend the Client Form to alter the Services we provide to You by giving one month’s written notice which We may accept or reject in our sole discretion.

Service Fee & Payments

  1. The Service Fee will be as specified in the Client Form and then as adjusted from time to time as allowed by these Service Terms.  The Service Fee include fees for:
    1. each Transaction settled during a particular calendar month via Your use of the TMS Platform; 
    2. each additional e-signing document envelopes if required; and 
    3. the first invitation You send to a user of the PTS App in respect of each Transaction. 
  2. We may adjust any part of the Service Fee or the method as to calculating and fixing the Service at any time by giving You 30 days’ prior notice of such change.  You may terminate the Terms within that 30 day period by notice to Us. 
  3. You shall pay the Service Fee In accordance with the billing frequency stated on the Client Form and if not so stated then monthly.  The Service Fee is non-refundable, except as provided for under the Australian Consumer Law.  
  4. You shall pay a one-time, non-refundable On-boarding Fee as specified in the Client Form, that includes one hour of personalised training, software installation, and setup of your letterhead and email signatures.
  5. We will provide You with monthly tax invoices for amounts You need to pay Us under this clause.
  1. You must pay Us, by electronic funds transfer, Direct Debit or such other manner that We nominate from time to time, the amount set out in the Client Form seven (7) days from the date of the monthly invoice.
  2. You agree to notify Us as soon as reasonably practicable if any of Your payment details change.
  3. If any amounts are due and payable by Direct Debit but not received by Us by the date such amounts fall due (as specified in the Client Form), then at Our sole discretion, without limiting Our other rights and remedies under these Terms:
    1. All Services may be suspended until such amounts are received in full;
    2. Such amounts may accrue interest at a rate of 10 percent per annum (calculated daily) from the date such amounts were due to the date You pay such amount in full to Us; and
    3. Such amounts may incur a dishonour fee for each failed Direct Debit withdrawal We attempt to make against the bank account details specified in the Client Form or notified in writing from You to Use, to a maximum of three (3) attempted Direct Debit withdrawals per Service Fee.
  4. If any amounts that are due and payable but not received by Us within thirty (30) days from the date on which amounts fall due (as specified in the Client Form), then, at Our sole discretion, We may:
    1. Terminate these Terms immediately at which time You are immediately liable for All Outstanding Amounts;
    2. Hand such amounts, including All  Outstanding Amounts, to a third party, and You will be liable to Us and/or the third party for any associated costs, including collection, legal and mercantile agents costs, until such time as such amounts are paid in full to such third party.

GST and Taxes

  1. Any consideration or amount noted and payable under these Terms (including any non-monetary consideration) (Consideration) is expressed exclusive of GST.  Our fees do not include any taxes, duties or charges imposed or levied
    in Australia or overseas (collectively Taxes) in connection with these Terms and their performance.
  2. If GST is or becomes payable on a Supply (as defined under the GST Law) made under or in connection with these Terms, an additional amount (Additional Amount) is payable by the party providing the Consideration for the Supply (Recipient) equal to the amount of GST payable on that Supply as calculated by the party making the Supply (in this case only, the Supplier) in accordance with GST Law.
  3. The Additional Amount payable under clause 6) b) is payable at the same time and in the same manner as the Consideration for the Supply.
  4. If for any reason the amount of GST payable on a Supply varies from the Additional Amount payable by the Recipient under clause 6) b):
    1. The Supplier must provide a refund or credit to the Recipient, or the Recipient must pay a further amount to the Supplier, as appropriate;
    2. The refund, credit or further amount (as the case may be) will be calculated by the Supplier in accordance with the GST Law; and

      The Supplier must notify the Recipient of the refund, credit or further amount within 10 Business Days after becoming aware of the variation to the amount of GST payable.  Any refund or credit must accompany such notification and the Recipient must pay any further amount within five Business Days after receiving such notification, as appropriate.  If there is an Adjustment Event (as defined in the GST Law) in relation to the Supply, the requirement for the Supplier to notify the Recipient will be satisfied by the Supplier issuing to the Recipient an Adjustment Notice within 10 Business Days after becoming aware of the occurrence of the Adjustment Event.
  5. Despite any other provision in these Terms:
    1. If an amount payable under or in connection with these Terms (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any Input Tax Credit (as defined in the GST Law) to which that party is entitled in respect of that Amount Incurred; and
    2. No Additional Amount is payable under clause 6)b) in respect of a Supply to which s 84-5 of the GST Law applies.
  6. Any reference in clause 6) to an Input Tax Credit to which a party is entitled includes an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of a GST Group of which the party is a member is entitled.
  7. If We have a legal obligation to pay or collect any Taxes on Your behalf or arising under clause 6), You agree that We can issue you an invoice or Direct Debit such amounts from the bank account details specified in the Direct Debit Request form, or notified in writing from You to Us in addition to the Service Fee at the next occurring Billing Period, unless You provide Us with an authorised tax exemption.

 Our Responsibilities

  1. Subject to these Terms, We will make the following Services available to You for the Licence Duration (including any Renewed Licence Duration):
    1. Provide You with access to the Services (including the Software and the Content);
    2. Provide updated versions of the Software comprising the Services as We develop and release the same from time to time;
    3. Hosting Your Data and documents on Our servers; and
    4. Provide You with invitations and offers to apply to use additional products and services as offered by Us or other third parties affiliated with Us.

Your Responsibilities

  1. You acknowledge that You are responsible for ensuring that Your ITC complies with the Realtime Conveyancer System Requirements for the Licence Duration.
  2. You acknowledge that:
    1. The Software may not operate properly (or at all) on third party hardware or platforms; and
    2. You must ensure that Your ITC is properly maintained, complies with the Realtime Conveyancer System Requirements and does not operate in a way which may adversely affect the operation of the Software or adversely affect Your use of the Services.
  3. You must ensure that a copy of Your Data and any other data supplied by You to Us is securely stored and hosted by You and/or the Users.
  4. You indemnify Us (and Our officers, contractors and employees) against any actions, liability, claim, loss, damage, proceeding, expense (including legal costs) arising from or in connection with, either directly or indirectly, You breaching Your obligations in these Terms.  You release and indemnity Us from any claim, loss or liability (including claims by third parties) which relate to any defect or error in, or as to the standard of, any Content or the Services.

Limitation of Liability

  1. You acknowledge that use of the Service is at Your own risk. We provide the Service as is, without any express, implied or statutory warranties, including but not limited to, implied warranties of merchantability and fitness for a particular purpose.  
  2. To the maximum extent permitted by applicable Laws, We exclude and shall not be liable to You for any indirect, incidental, consequential, special, exemplary, or punitive damages (including, without limitation, damages for loss of business profits, loss of goodwill, loss of business opportunity, loss of data, work stoppage, computer failure or malfunction, or other pecuniary loss) whether under a theory of contract, warranty, tort, or otherwise.
  3. Your sole and exclusive remedy for Our breach of any statutorily implied warranties, conditions or guarantees which cannot lawfully be excluded is, to the extent legally permitted, limited to, at Our option, either providing those Services again or paying the cost of providing those Services again in respect of which the breach occurred.
  4. To the maximum extent permitted by applicable Laws, Our liability arising under or in connection with these Terms which is not otherwise excluded or limited in clauses 9)a) to c), is limited, in aggregate, to the Service Fee paid or payable by You to Us under these Terms.

Warranties and Representations

  1. We warrant and represent that We own or have the appropriate licenses to the Intellectual Rights in the Services and that Your use of Services will not infringe the Intellectual Property Rights of any third party in Australia.
  2. Both parties warrant that they have the capacity, power and authority to enter into and perform these Terms and have obtained all necessary approvals, consents and authorisations to enable it to do so.
  3. You acknowledge that We:
    1. Do not provide any legal advice or legal services or accounting or bookkeeping advice by providing You and the Users access to the Services including the Content;
    2. Do not warrant or represent the accuracy, currency or quality of legal or accounting information, Your Data, practice guides, legal forms, precedents, letters or documents which are provided as examples only and on the basis that You and any Users are suitably qualified (or working under the direction of suitably qualified personnel) and will not rely on such documents;
    3. Do not warrant or represent that the Software can be accessed or operate without defects, data corruptions, software failures or performance degradation caused by viruses or by other software or components on Your, the Users’ or third-party hardware that may interfere with the Software; and
    4. Make no warranty as to any results that may be obtained from the use of the Services.

Third Party Intellectual Property Claims

  1. Where a Third Party Intellectual Property Claim is made against You, You must promptly notify Us and comply with Our reasonable directions in relation to the Third Party Intellectual Property Claim.  You must not settle such Third Party Intellectual Property Claim, make admissions or consent to any judgment being entered without Our prior written consent.
  2. Subject to Your compliance with clause 11)a), We will pay any judgment finally awarded by a court against You in respect of a Third Party Intellectual Property Claim or amount which is payable by You to settle a Third Party Intellectual Property Claim.  This payment will be Our sole and exclusive liability to You in connection with such Third Party Intellectual Property Claim.
  3. Our liability under clause 11)b) will be reduced to the extent the Third Party Intellectual Property Claim is based on:
    1. Use of a superseded or modified release of Software, if the Third Party Intellectual Property Claim could have been avoided by using a later or unmodified release of the Software; and
    2. The combination, operation or use of the Software with programs or data models not provided by Us; or
    3. any use of other software not made by or provided by Us either in conjunction within the Software or otherwise by You.
  4. In addition, in respect of any Third Party Intellectual Property Claim We may, in Our sole discretion:
    1. modify the Software to be non-infringing;
    2. obtain for You a licence to continue using the affected Software; or 
    3. if neither (i) nor (ii) above are practical, in Our sole judgment, terminate these Terms by notice to You.  

User Support

  1. You will be entitled to phone and email support available on usual business days in Western Australia from 9.00am to 5.00pm WST, at no additional cost, for the term of Your Licence Duration.  From time to time, we may detail the scope of such support in a Service Level Agreement and the same will form part of these Service Terms. 
  2. We may at any time during the Licence Duration discontinue, and/or substitute functionality comprised in the Software and Services (Changes).  We will notify You of any Changes that are material in nature.  To the extent Changes relate to any portion of the Software or tools which are installed on Your Devices and which are required for the provision of the Services You must install the Changes as and when required by Us.  Changes are provided at no cost, except for any third party costs, or such other reasonable costs incurred by Us in providing You with the Changes.  

Term

  1. These Terms will start on the Commencement Date and, subject to termination in accordance with clause 15), will continue in effect for twelve (12) months from the Commencement Date (Initial Licence Duration).
  2. We will notify You in writing prior to the expiration of the Initial Licence Duration or any then-current Renewed Licence Duration that such licence duration is due to end. These Terms shall automatically renew for successive twelve recurring (12) month periods unless we discontinue your service or You provide us with written Notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
  3. If You provide us with written Notice of non-renewal in accordance with clause 13)b) above, fees payable for the current Licence Duration  are non-refundable and You will continue to have access to the Services until the end of the Licence Duration.  You must uninstall, delete, and erase any and all copies of the Services from all of your systems, and extract any of your data within thirty (30) days of the end of the applicable Licence Duration and take any and all steps necessary to ensure that neither You nor anyone through You continues to have or use any part of the Services, and if requested, confirm in writing that this has been completed.

Access Date

  1. We will provide You with login details so You may access and commence use of the Services (Date of Access). 
  2. You will be deemed to have commenced use of the Services on the day following the Date of Access.

Termination and Suspension

  1. Either party may terminate these Terms for cause with immediate effect by providing written Notice to the other party if the other party:
    1. Commits a material breach of these Terms that is capable of remedy and fails to remedy that breach within twenty-eight (28) days after receiving written Notice identifying the breach and requiring the breach to be remedied;
    2. Commits a material breach of these Terms that is not capable of remedy; or
    3. Is the subject of an Insolvency Event.
  2. Where the Corporations Act 2001 (Cth) stays Our right to terminate under clause 15)a)iii) We may suspend the performance of Our obligations under these Terms (including suspending Your access to the Services) unless and until We are satisfied You are able to fully perform Your obligations (including payment obligations) under this Terms.
  3. Except under clause 15) You may at any time during the last thirty (30) days of the Initial Period after the Date of  Access terminate these Terms and in such circumstances no Service Fees or other amounts will be refunded or waived unless otherwise approved in Our sole discretion.  Your rights under this clause are subject to the following criteria being met:
    1. You have complied with clause 8) above;
    2. You and the Users have completed the recommended training in the use of the Services and have followed Our recommendations for implementing the Services; and
    3. You have made Continuous Use of the Service for the Initial Period.
  1. We may by notice to You suspend Your access to and use of the Services for any period You are in breach of Your obligations under these Terms including where You have not paid Us any Service Fee. 
  2. If these Terms are terminated or expire:
    1. Your right to access or use the Services ceases; and
    2. You must immediately pay All Outstanding Amounts due and payable under these Terms.
  3. If these Terms are terminated or expire and where You request in writing, We may grant You access to and use of the Software for a further thirty (30) days in order for You to migrate Your Data and any other data You have provided to Us in during the Licence Duration back to You to an alternative service provider.  You acknowledge that We are not obliged to provide You any such assistance or access unless You have paid all amount owing to Us under these Terms including the Service Fee.
  4. Any provision of these Terms which, by its nature, would reasonably be expected to be performed after the termination of these Terms, shall survive and be enforceable after such termination including clauses 1), 3)b), 5), 6), 8)e), 9), 11), 19), 23) and 24).  Termination of these Terms does not affect any of Your or Our accrued rights or remedies under these Terms.  Where We terminate these Terms for Your breach we will have the same rights and remedies as if You had at law repudiated these Terms and we had accepted that Repudiation. 
  5. If these Terms are terminated or expire We will retain any data provided by You to Us for at least seven (7) years pursuant to Our Information Security Policy.  

Access, Security and Information Security

  1. You will be responsible for the Users’ compliance with these Terms (including completing any applicable Client Forms) and ensuring that You and the Users’ use of the Service is in accordance with any applicable Laws.
  2. You shall be responsible for the access, actions, use, and data uploaded to the Service. You shall be responsible for ensuring that all Users comply with Our Security Policy, taking reasonable steps to protect the confidentiality of usernames and passwords to the Service, as well as maintaining the accuracy of the personal information provided to Us.  You are the administrator in respect of authorising Users.   Any act or omission of a User which would constitute a breach by You of these Terms will be deemed to be an act or omission by You under these Terms
  3. You shall be responsible for maintaining or implementing procedures and policies to prevent any unauthorised access or use of usernames and passwords and will notify Us in writing if a username or password has been lost, stolen, or compromised or if You become aware that there may have been an unauthorised use of the Services or any other security breach related to Your or a Users’ account. You agree to immediately notify Us in writing of any actual unauthorised access or use.
  4. Each User requires a unique user ID and password. Users are not permitted to share their unique user ID and password with another person. 
  5. You acknowledge that if a User breaches Our policies in Our sole discretion, We may suspend access to the Services for that User.
  6. We will use reasonable and appropriate measures designed to secure Your Data against accidental or unlawful loss, access or disclosure and we will backup Your Data as set out in Our Information Security Policy.  However, You acknowledge and agree that We (like any service provider) cannot guarantee there will be no loss, unlawful access or disclosure of Your Data or we will at all times have a full, complete and accurate backup of Your Data and, as such, the exclusions and limits of liability in Our favour in these Terms apply to any such matters, claims, liability or loss.   

Your Data and Integrations

  1. You retain all ownership of all data You upload, import, or generate.  This includes (but not limited to) documents, contacts, and other entries into the Software (but to avoid doubt, not in any of Our underlying document or templates).  You acknowledge and agree that We may need to access and view Your data to assist with your questions, technical support requests, training, billing, or other issues and also so the Software can provide You with the Services.
  2. Except for the reasons stated above, we will not access Your data without Your permission and will only access data that is reasonably necessary to address or complete Your requests or issues. 
  3. Certain third-party providers, some of which may be listed on Our website, offer products and services related to the Services, including implementation, configuration and other services and applications and software (both offline and online) that work in conjunction with or integrate with the Services, such as by exchanging data with the Service or by offering additional functionality.  We are not responsible for any exchange of data or other interaction or transaction between You and a third-party provider or the performance of any such applications, software or service.  

Confidentiality

  1. The Receiving Party may only use the Confidential Information of the Disclosing Party for the purposes of exercising its rights or performing its obligations under these Terms.
  2. The Receiving Party must keep confidential and not disclose the Confidential Information of the Disclosing Party, except as permitted under clause 18)d).
  3. This clause 18) extends to Confidential Information of a party provided to or obtained by the other party before the Commencement Date.
  4. The Receiving Party may disclose Confidential Information of the Disclosing Party:
    1. To those of its personnel or any third party that need to know for the purposes of the Receiving Party exercising its rights or performing its obligations under these Terms, provided that the Receiving Party uses its reasonable endeavours to ensure that such personnel or third parties keep the Confidential Information confidential in a matter consistent with the Receiving Party’s obligations under this clause;
    2. To those third parties that need to know for the purposes of monitoring and analysing the Disclosing Party’s usage of the Software and to assist with improving the Services provided under these Terms;
    3. To the extent that disclosure is required by Law provided that the Receiving Party provide the Disclosing Party reasonable Notice before any such disclosure and takes all reasonable steps to maintain that Confidential Information in confidence; or
    4. With the prior written consent of the Disclosing Party.
  5. We reserve the right to provide Your Data to third parties if required or compelled by law (court order or subpoena) and to comply with law enforcement authorities in an investigation of a criminal or civil matter. We shall provide You Notice of the legal process, to the extent allowed by law.

Privacy

  1. Each party must ensure that when it collects, uses, discloses, transfers or otherwise handles Personal Information in relation to its obligations under these Terms, it at all times complies with applicable Privacy Laws and cooperates with applicable regulatory bodies as required.
  2. Without limiting the obligations under clause 19) a), You must:
    1. procure that Users comply with applicable Privacy Laws; 
    2. ensure that all Personnel Information entered into, accessed or disclosed via the Services is in compliance with Privacy Laws (including to avoid doubt, You obtaining consent to disclose and use such Personal Information via Your use of the Services); and
    3. not do anything with in respect of Your use of the Services that will cause Us to breach Our obligations under Privacy Laws.
  3. You acknowledge that You have read Our Privacy Policy and that to the extent that Our Privacy Policy allows Us to use, release and store Personal Information provided by You to provide the Services You must obtain all necessary consents from individuals whose Personal Information You or Users enter into, store or disclose via the Services. 
  4. You agree to Us informing Trident Insurance Group in the event of an actual or suspected Eligible Data Breach.  You must promptly give Us Notice if You know of or suspect an Eligible Data Breach has occurred in respect of Your use of the Services.

 Usage Data

  1. We reserve the right to collect, aggregate, monitor, and use Usage Data to improve the functionality, performance, and aid in the further development of the Service.  Usage Data does not include any of Your data.

 Force Majeure

  1. We will be free of liability to You where We are prevented from executing Our obligations under these Terms in whole or in part due to force majeure.  Force majeure shall mean events not reasonably foreseeable or otherwise caused by or under the control of the party claiming force majeure, including acts of god, natural disasters (e.g. lightning, earthquakes, storms, floods) wars, riots, explosions, terrorism, vandalism, civil unrest, governmental acts, injunctions, failures of telecommunication providers or internet service providers; failure of third party suppliers, service providers, or vendors; and any other cause beyond the reasonable control of a party.

Severability

  1. If any provision of these Terms or a right or remedy of a party under these Terms is held to be invalid or unenforceable, the provision shall be modified and interpreted so as best to accomplish the objective of the original provision as permitted by law, and the remaining provisions shall remain in full force and effect.
  2. If there is any inconsistency between the documents incorporated in these Terms, then unless otherwise expressed, the documents will be given the following order of priority (with paragraph (i) being the first in the order of priority such that the conflicting provision in the document lower in the order of priority will be read down to the extent necessary to resolve the conflict (unless the Client Form expressly provides otherwise):
    1. Client Form;
    2. Service Terms; and
    3. Any other document executed by the parties.

 Governing Law

  1. Subject to clause 24), the parties submit to the jurisdiction of the courts of the State of Western Australia for the enforcement of these Terms or any arbitration award or decision arising from these Terms. The Terms will be enforced or construed according to the laws of the State of Western Australia.

Dispute

  1. For any Dispute between you and Us, You agree to first contact Us at hello@realtimeconveyancer.com.au and attempt to resolve the Dispute with Us informally.
  2. Within 14 days of you giving a notice under clause 24)a) if We and You have not resolved the Dispute either party may commence court proceeding in respect of that Dispute unless with 7 days of the end of the 14 period (Period) We issue You a notice that the Dispute must be resolved by arbitration (in which case the Resolution Institute Arbitration Rules 2020 will apply and the arbitration will take place in Perth, Western Australia). 
  3. To the extent permitted by applicable Laws, each party agrees to not commence any court proceedings until the Period expires and We have not elected to resolve the Dispute by arbitration.  This clause does not restrict a party from seeking urgent injunctive relief of equitable relief.

Miscellaneous

  1. These Terms do not create or imply any relationship in agency or partnership between Us and You.  
  2. We may subcontract the whole or any part of Our obligations under these Terms without obtaining Your prior written consent.  We may assign or novate these Terms by notice to you.  You must sign any document We reasonably required to novate these Terms.  You may not assign these Terms without Our prior written consent.  
  3. If You enter into these Terms as the trustee of a trust You must disclose the same and You warrant that the trust has sufficient assets to meet Your obligations under these Terms and, as trustee, you are entitled to be indemnified out of the assets of the trust (other than to the extent limited by applicable Laws).
  4. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting these Terms.
  5. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
  6. By purchasing the Services, You agree to be bound by the current version of our Service Terms (being initially as provided with the Client Form and thereafter any revised version that we provide You Notice of).  You acknowledge that if we publish a revised version of the Service Terms on Our website this will be sufficient Notice and if You continue to use Our Services You waive any other rights You may have under this or any previous version of these Service Terms, to the extent applicable at law.  If in Our reasonable opinion, the changes to the Service Terms are detrimental to You, We will provide You with written Notice of such change.  Where we change or amend the Service Terms, you may terminate these Terms by notice to Us within 30 days of the date of such change to Our Service Terms. 
  7. These Terms contain the entire agreement between the parties. All understandings have been included in the Terms. Representations which may have been made by any party to these Terms may in some way be inconsistent with these final written Terms. All such statements are declared to be of no value in these Terms. Only the written Terms of this agreement will bind the parties.
  8. These Terms apply to and are binding upon Our successors and assigns.

Notices

  1. A notice, demand, consent, approval or communication under this Licence (Notice) must be:
    1. in writing, in English and signed by a person duly authorised by the sender; and
    2. hand delivered or sent by prepaid post, courier or means of an Electronic Communication to the recipient’s address for Notices specified in the Client Form, as varied by any Notice given by the recipient to the sender.
  2. Notices may be delivered using a form of Electronic Communication or if a Party (the Notifying Party) gives a notice to the other party stating that Electronic Communications is no longer an accepted form of communication for Notices addressed to the Notifying Party.
  3. A Notice given in accordance with clause 26) takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
    1. if hand delivered, on delivery;
    2. if sent by prepaid post, on the second Business Day after the date of posting (or on the eighth Business Day after the date of posting if posted to or from a place outside Australia);
    3. if sent by courier, on the date of delivery (as stated in the consignment tracking advice obtained from the courier company);
    4. if sent by Electronic Communication, when the Electronic Communication becomes  capable of being retrieved by the addressee at the addressee’s Nominated Electronic Address,

but if the delivery, receipt, or transmission is not on a Business Day or is after 5.00pm (addressee’s time) on a Business Day, the Notice is taken to be received at 9.00am (addressee’s time) on the next Business Day.

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