Staging Server Instance: Auctions Live Dev 2 | 27e9de6a2eb54eba81f378c59cec521a-0431156822

Subscriber Terms

  • Subscriber Terms

  1. Definitions

    1. In this Agreement, except to the extent expressly provided otherwise:

      2. "Account" means an account enabling the Company to access and use the Auctions Live Service;

      "Agreement" means this Agreement and any amendments, annexures or derivatives thereof;

      "Auction" means an auction relating to but not limited to, the sale of agriculture, aircraft, antiques, art, artwork, bric-a-brac, business assets, chattels, collectibles, service and/or supply contracts, domain names, jewellery, livestock, property, real estate, technology, vehicles, watercraft and general goods or a similar item;

      "Authorised Officer" means a natural person who has express, implied or legislated authority to bind the Company to this Agreement;

      "Business Day" means any weekday other than a bank or public holiday in Australia and a public holiday in the jurisdiction of the Company;

      "Business Hours" means the hours of 8:30 A.M to 5:00 P.M AEST on a Business Day;

      "Charges" means the amounts specified in the Pricing Schedule in Schedule 4;

      "Company" means the company subscribed to the RE Software services;

      "Company Confidential Information" means any information disclosed by the Company to the Provider including, without limitation, Company Data and Company Personal Information;

      "Company Data" means all data, works and materials: uploaded to or stored on the Platform by the Company; transmitted by the Platform at the instigation of the Company; supplied by the Company to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Auctions Live Service by the Company but excluding analytics data relating to the use of the Platform and server log files;

      "Company Personal Information" means any Personal Information including Personal Information relating to third parties or customers, employees, agents, or contractors of the Company that is collected, processed, held or used by the Provider on behalf of the Company and/or under this Agreement;

      "Documentation" means the documentation for the Auctions Live Service produced by the Provider and delivered or made available by the Provider to the Company;

      "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, pandemics, government action, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

      "GST" means goods and services tax as defined by the relevant Act and any reference to GST includes the equivalent tax in the jurisdiction of the Company;

      "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;

      "Listing" means but is not limited to, agriculture, aircraft, antiques, art, artwork, bric-a-brac, business assets, chattels, collectibles, service and/or supply contracts, domain names, jewellery, livestock, property, real estate, technology, vehicles, watercraft and general goods or a similar item;

      "Maintenance Service" means the general maintenance of the Service, and the application of Updates and Upgrades;

      "Personal Information" means any information collected, used or held by the Provider under this Agreement which falls within the definitions of ‘personal information’ as defined in the Privacy Acts, whichever is/are relevant;

      "Platform" means the platform managed by the Provider and used by the Provider to provide the Service, including the application and database software for the Service, the system and server software used to provide the Service, and the computer hardware on which that application, database, system and server software is installed;

      "Pricing Schedule" means the fees and Charges outlined in Schedule 4;

      "Privacy Acts" means the Australian Privacy Act 1988 governed by the Office of the Australian Information Commissioner and the relevant applicable Act in the jurisdiction of the Company (if any);

      "Provider" means RE Software Pty Ltd trading as Auctions Live and any related bodies corporate, associated entities, apps and APIs.

      "Provisioning Date" means the date the Service will be made available;

      "Schedule" means any schedule attached to the main body of this Agreement;

      "Service" means Auctions Live, being the service more specifically described in the Service Particulars in Schedule 1;

      "Service Defect" means a defect, error or bug in the Auctions Live Platform having an adverse effect on the appearance, operation, functionality or performance of the Service, but excluding any defect, error or bug caused by or arising as a result of:

      1. any act or omission of the Company or any person authorised by the Company to use the Platform or Service other than in accordance with the usual operation, documentation or directions of the provider;
      2. any use of the Service contrary to the Documentation, whether by the Company or by any person authorised by the Company;
      3. a failure of the Company to perform or observe any of its obligations in this Agreement; and/or
      4. an incompatibility between the Service and any other systems, networks, applications, programs, hardware or software not specified as compatible in the Service Specification;

      "Service Specification" means the specification for the Service set out in Part 1 of Schedule 1 (Service Particulars) and in the Documentation;

      "Support Service" means support in relation to the use of, and the identification and resolution of errors in, the Service, including a helpdesk service but excluding the provision of training services;

      "Supported Web Browser" means Google Chrome;

      "Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

      "Unauthorised Person" means a person that is not an employee, director, associate or contractor of the Company for the purposes of Clause 4.3;

      "Update" means a hotfix, patch or minor version update to any Platform software; and "Upgrade" means a major version upgrade of any Platform software.

  2. Credit

    1. This document was created by RE Software Pty Ltd - Sales.

  3. Term

    1. This Agreement shall come into force on the Provisioning Date.
    2. Termination of this Agreement can be effected in writing in accordance with Clause 18.
    3. The Company does not guarantee a minimum number of Auctions it will use the Service for.
    4. The Agreement will end on the date specified in Schedule 5 Company Particulars. If no date is nominated, then the parties agree that this is an ongoing Agreement and can only be terminated in accordance with Clause 17.
    5. Should the Company pay any of the Charges in advance and elect to terminate prior to the anniversary of this Agreement, the Company acknowledges that no refunds are payable.

  4. Service

    1. The Provider hereby grants to the Company and its customers a non-exclusive licence to use the Service during the Term.
    2. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Company under Clause 4.1 is subject to the following prohibitions:
      1. the Company must not sub-license its right to access and use the Service;
      2. the Company must not permit any Unauthorised Person to access or use the Service;
      3. the Company must not use the Service to provide services to third parties (except any vendor clients of the Company);
      4. the Company must not make any alteration to the Platform, except as permitted by the Documentation; and
      5. the Company must not conduct any load testing on the Platform or Service without the prior written consent of the Provider.
    3. The Company shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no Unauthorised Person may gain access to the Service using an administrator Account.
    4. Subject to clause 4 of Schedule 3, the Provider shall use all reasonable endeavours to maintain the availability of the Service to the Company at the gateway between the public internet and the network of the hosting services provider for the Service, but does not guarantee 100% availability.
    5. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
      1. a Force Majeure Event;
      2. a fault or failure of the internet or any public telecommunications network;
      3. a fault or failure of the Company's computer systems or networks;
      4. any breach by the Company of this Agreement; or
      5. scheduled maintenance carried out in accordance with this Agreement.
    6. The Company must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Service with the authority of the Company comply with Schedule 2 (Acceptable Use Policy).
    7. The Company must not use the Service in any way that causes, or may cause, damage to the Service or Platform or impairment of the availability or accessibility of the Service.
    8. The Company must not use the Service:
      1. in any way that is unlawful, illegal, fraudulent or harmful; or
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
    9. For the avoidance of doubt, the Company has no right to access the software code including object code, intermediate code and source code of the Platform, either during or after the Term.

  5. Maintenance Service

    1. The Provider shall provide the Maintenance Service to the Company during the Term.
    2. The Provider shall, except in the event of an emergency give to the Company at least 10 Business Days' prior written notice of scheduled Maintenance Service that are likely to affect the availability of the Service or are likely to have a material negative impact upon the Service, without prejudice to the Provider's other notice obligations under this main body of this Agreement.
    3. The Provider shall give to the Company at least 3 Business Days' prior written notice of the application of an Upgrade to the Platform.
    4. The Provider shall give to the Company written notice of the application of any security Update to the Platform and at least 3 Business Days' prior written notice of the application of any non-security Update to the Platform.
    5. The Provider shall provide the Maintenance Service with reasonable skill and care in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.

  6. Support Service

    1. The Provider shall provide the Support Service to the Company during the Term.
    2. The Provider shall provide the Support Service with standards of skill and care reasonably expected from a leading service provider.
    3. The Company may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Service; and the Company must not use the helpdesk for any other purpose.
    4. The Provider shall respond promptly to all requests for Support Service made by the Company in accordance with Schedule 3 – Service Level Agreement.

  7. Company Data

    1. The Company hereby grants to the Provider a non-exclusive, non-transferable, licence to copy, reproduce, store, distribute, publish, export, adapt and translate the Company Data strictly for the purposes of performing its obligations under this Agreement.
    2. The Company warrants to the Provider that the Company Data when used by the Provider in accordance with this Agreement shall not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provision of any law, statute or regulation. This warranty extends only to the Company Data that the Company has created. The Provider shall not be liable for any infringement of Intellectual Property Rights or other legal rights of any person or any breach of any law, statute or regulation that may arise from any Company Data provided by the Company in accordance with this Agreement.
    3. The Provider shall create a back-up copy of the Company Data at least daily, and shall ensure that each such copy is sufficient to enable the Provider to restore the Service to the state they were in at the time the back- up. The Provider current back-up schedule is as follows:
      1. Hourly backups with a retention of 2 days
      2. Daily backups with a retention of 14 days
      3. Weekly backups with a retention of 28 days
      4. Monthly backups with a retention of 1 year
      5. Yearly backups with a retention of 7 years
    4. Within the period of 5 Business Day following receipt of a written request from the Company, the Provider shall use all reasonable endeavours to restore to the Platform the Company Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Company acknowledges that this process will overwrite the Company Data stored on the Platform prior to the restoration.
    5. In the event of a suspected data breach or cyber incident the Provider will take reasonable steps to ensure the protection of the Company Data as per the Provider’s Cyber Incident Response Plan and Data Breach Response Policy.

  8. No assignment of Intellectual Property Rights

    1. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Company, or from the Company to the Provider (including any Intellectual Property Rights in the Company Data). The Company will own all Intellectual Property Rights in any material or outputs created by the Service to the extent that material or output is or is based on the information inputted to the Platform by the Company, excluding improvements to the Provider's pre-existing Intellectual Property Rights.

  9. Charges

    1. The Company shall pay the Charges to the Provider in accordance with this Agreement.
    2. All amounts stated in or in relation to this Agreement and Schedules are exclusive of GST and may attract a credit card surcharge (presently 3%), payable by the Company.
    3. You agree to be bound by any terms and conditions outlined in the Pricing Schedule.
    4. In the event that this Agreement is an ongoing Agreement and the Company pays the Charges yearly in advance, should the Company terminate the Agreement prior to the anniversary of the date of this Agreement, the Company acknowledges that they will not receive a refund for Charges paid.
    5. You agree Charges will be incurred once an Auction type is assigned to a Listing, regardless of whether the Service is utilised or the Listing is published.

    For additional clarification, kindly refer to Auctions Live Fee Schedule Frequently Asked Questions (FAQs).

  10. Payments

    1. The Provider shall issue invoices in relation to the Service by the seventh day of each month.
    2. The Company agrees to pay the Charges to the Provider within the period of 14 days following the issue of an invoice in accordance with this Clause 10.
    3. The Company agrees to pay the Charges by Electronic Funds Transfer (EFT) or Credit Card. Payments via Credit Card will incur a surcharge (presently 3%), payable by the Company. Any applicable surcharges are subject to change without notice.
    4. If the Company does not pay any amount due to the Provider under this Agreement, the Provider may suspend the Service, Support Service and/or Maintenance Service provided to the Company and its customers on 20 Business Days’ notice in writing to the Company, unless the Company, acting reasonably has advised that the amount unpaid is disputed.
    5. In the event that the Provider suspends a Company’s account as a result of non-payment in accordance with this clause 10, the Provider accepts no responsibility, and is not liable for, any damages or losses past, present or future, in relation to scheduled Auctions that are subsequently cancelled as a result of the Company’s account suspension.
    6. For the avoidance of doubt, the parties agree that the following procedure will be undertaken by the Provider prior to suspending a Company account:
      1. Notification that the account is 5 days overdue;
      2. Notification that the account is 12 days overdue;
      3. Notification that the account is 21 days overdue;
      4. Suspension notification once account has reached 28 days overdue.

  11. Provider's Confidentiality Obligations

    1. The Provider must:
      1. keep the Company Confidential Information, including the terms of this Agreement, strictly confidential;
      2. not disclose the Company Confidential Information to any person without the Company's prior written consent;
      3. use the same degree of care to protect the confidentiality of the Company Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
      4. act in good faith at all times in relation to the Company Confidential Information; and
    2. Notwithstanding Clause 11.1, the Provider may disclose the Company Confidential Information only to the extent necessary for the performance of their work relating to the Company Confidential Information, to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Company Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Company Confidential Information on the same terms as Clause 11.1.
    3. This Clause 11 imposes no obligations upon the Provider with respect to Company Confidential Information that:
      1. is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
      2. is or becomes publicly known through no act or default of the Provider; or
    4. The restrictions in this Clause 11 do not apply to the extent that any Company Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
    5. The provisions of this Clause 11 shall continue in force indefinitely following the termination of this Agreement.

  12. Personal Information

    1. The Provider shall comply with the Privacy Acts and the Company shall comply with the Privacy Act 2020.
    2. The Provider shall promptly inform the Company if, in the opinion of the Provider, an instruction from the Company relating to the collection, storage, processing or use of Company Personal Information infringes the Privacy Acts.
    3. The Provider will not collect, use, disclose, modify, store or dispose of any Company Personal Information except as expressly permitted in this Agreement or as required by law. Such examples of, as required by law include, maintaining personal information for record keeping purposes mandated by various States, Territories and Countries. Our company policy is to retain this information for a seven (7) year period. By agreeing to these terms, you acknowledge and agree that your personal information can be retained by the Provider for this period of time in accordance with the Privacy Policy.
    4. The Provider agrees:
      1. To notify the Company within 5 business days if the Provider receives any request for any Company Personal Information and follow all lawful instructions from the Company regarding the request;
      2. To immediately notify the Company if:
        1. The Provider knows or suspects any breach of Privacy Laws by the Provider or the Company;
        2. The Provider knows or suspects any unauthorised use, copying or disclosure of any Company Personal Information;
        3. The Provider becomes aware that a disclosure of any Company Personal Information may be required by law; or
        4. Any law prevents or may prevent the Provider from performing its obligations under this clause.
    5. The Provider and the Company shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Company Personal Information.
    6. The Provider shall, within 10 Business Days of receiving written notice from the Company, delete some or all Company Personal Information as instructed.
    7. Without limiting clause 12.1, the Provider will take all reasonable steps to ensure the security of personal information as per its Information Security Policy and Privacy Impact Assessment.

  13. Warranties

    1. The Provider warrants to the Company that:
      1. the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
      2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement;
      3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement; and
      4. they will carry out the Service, Maintenance Service and Support Service with such courtesy and consideration for the Company and its customers as to maintain the Company’s good name and promote the Company’s business.
    2. The Provider warrants to the Company that:
      1. the Platform and Service will be maintained during the Term of the Agreement;
      2. the Service will be free from Service Defects;
      3. the application of Updates and Upgrades to the Platform by the Provider will not introduce any Service Defects into the Service;
      4. the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs;
      5. the Platform will incorporate security features reflecting the requirements of good industry practice; and
      6. Auctions will create legally binding relations between the vendor and the successful bidder.
    3. The Provider warrants to the Company that the Service, when used by the Company in accordance with this Agreement, will not breach any laws, statutes or regulations within Australia and the relevant jurisdiction of the Company.
    4. The Provider warrants to the Company that the Service, when used by the Company in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
    5. If the Provider reasonably determines, or any third party alleges, that the use of the Service by the Company in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider will indemnify the Company from and against all claims, actions or similar brought against the Company by any third party in relation to such infringement, and in addition may at its own cost and expense:
      1. modify the Service in such a way that they no longer infringe the relevant Intellectual Property Rights; or
      2. procure for the Company the right to use the Service in accordance with this Agreement.
    6. The Company warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
    7. All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

  14. Acknowledgements and Warranty Limitations

    1. The Company acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Service will be wholly free from defects, errors and bugs.
    2. The Company acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Service will be entirely secure.
    3. The Company acknowledges that the Service is designed to be compatible only with that software and those systems specified as compatible in the Service Specification; and the Provider does not warrant or represent that the Service will be compatible with any other software or systems.
    4. The Company acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Service; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Service or the use of the Service by the Company will not give rise to any legal liability on the part of the Company or any other person.

  15. Indemnity, Limitations and Exclusions of Liability

    1. The Provider shall indemnify and hold the Company, its affiliated companies, and their directors, employees and agents, as well as successors and assigns harmless from and against any and all claims or losses, arising from or in connection with any breach of a term of this Agreement, or any negligence or wilful misconduct in relation to this Agreement, by the Provider, the Provider’s employees, directors, agents, consultants or subcontractors.
    2. Nothing in this Agreement will:
      1. limit or exclude any liability for death or personal injury resulting from negligence;
      2. limit or exclude any liability for fraud or fraudulent misrepresentation;
      3. limit any liabilities in any way that is not permitted under applicable law; or
      4. exclude any liabilities that may not be excluded under applicable law.
    3. The limitations and exclusions of liability set out in this Clause 15 and elsewhere in this Agreement:
      1. are subject to Clause 15.2; and
      2. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
    4. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
    5. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
    6. Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
    7. Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

  16. Force Majeure Event

    1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
    2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
      1. promptly notify the other; and
      2. inform the other of the period for which it is estimated that such failure or delay will continue.
    3. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  17. Termination

    1. Either party may terminate this Agreement by giving to the other party at least 60 days' written notice of termination.
    2. Either party may terminate this Agreement on 20 Business Days’ written notice of termination to the other party if the other party commits a material breach of this Agreement.
    3. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
      1. the other party:
        1. is dissolved;
        2. ceases to conduct all (or substantially all) of its business;
        3. is or becomes unable to pay its debts as they fall due;
        4. is or becomes insolvent or is declared insolvent; or
        5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
      2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
      3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).

  18. Effects of Termination

    1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that clauses 7, 8, 11,12, 13, 15 shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely).
    2. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
    3. Within 30 days following the termination of this Agreement for any reason:
      1. the Company must pay to the Provider any Charges in respect of Service provided to the Company before the termination of this Agreement; and without prejudice to the parties' other legal rights.

  19. Notices

    1. Any notice from one party to the other party under this Agreement must be given by one of the following methods using the relevant contact details set out in Schedule 5.
      1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
      2. sent by recorded signed-for post, in which case the notice shall be deemed to be received 10 Business Days following posting; or
      3. sent by email, in which case the email shall be deemed to be sent and received at the time of transmission providing that, if that time is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin.
    2. The addressee and contact details set out in Schedule 1 (Service particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 19.

  20. Subcontracting

    1. The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Company.
    2. The Provider shall remain responsible to the Company for the performance of any subcontracted obligations.

  21. General

    1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
    2. If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
    3. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
    4. Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
    5. This Agreement is made for the benefit of the parties and the customers of the Company, and is not intended to benefit any third party or be enforceable by any third party other than the customers of the Company. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
    6. This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
    7. Subject to clause 21.8, this Agreement shall be governed by and construed in accordance with Australian law in the State of NSW.
    8. Subject to clause 21.7, the courts of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
    9. By signing and accepting this Agreement, you acknowledge and agree to all other ancillary documents that include but are not limited to any applicable subscriber terms, website terms, additional terms and conditions and the privacy policy. Any terms in any of the documents referenced in this clause 21.9 are subject to change, but only with prior written approval from the Provider.

  22. Interpretation

    1. In this Agreement, a reference to a statute or statutory provision includes a reference to:
      1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
      2. any subordinate legislation made under that statute or statutory provision.
    2. The Clause headings do not affect the interpretation of this Agreement.
    3. References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
    4. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

  23. Disaster Recovery and Business Continuity

    1. The Provider will maintain disaster recovery services at a dedicated facility which is equipped to handle a data centre processing in the event disaster recovery as per the Providers Business Continuity Plan and Disaster Recovery Plan Policy.
    2. The Provider will notify the Company within one (1) hour of an event occurring that will likely result in a service interruption
      1. The Provider will continually update the Company on the services interruption.
    3. The Provider will test its disaster recovery capabilities at least once per calendar.
    4. The Provider will provide offsite storage of data files so that they can be reconstructed in the event of loss or destruction at the Providers backup facility.
    5. Throughout the term of this Agreement, the Provider shall maintain in effect contracts and/or arrangements which are substantially equivalent to those that are currently in effect. The Provider shall ensure that all data processors shall comply with no less than the security and data protection standards within the Providers Information Security Policy.

SCHEDULE 1

SERVICE PARTICULARS

Key Specification of Service
The Service will provide the Company with the following key specifications:

In circumstances where the Company is utilising an In-Room Auction service, the Provider will provide:

  • Software to create digital presentations and order of sale screen.
  • Software to broadcast the digital presentations and order of sale screen
  • Software to electronically record and stream live Auction footage
  • Software to electronically scribe incoming bids
  • Software to provide electronically bidder registration
  • Software to provide online bidding services
  • Software to store and manage Auction information and data.

In circumstances where the Company is utilising an On-Site Auction service, the Provider will provide:

  • Software to display indoor and outdoor bid screen
  • Software to electronically record and stream live Auction footage.
  • Software to electronically scribe incoming bids
  • Software to provide electronically bidder registration
  • Software to provide Online Bidding services
  • Software to store and manage Auction information and data.

In circumstances where the Company is utilising a Virtual Auction service, the Provider will provide:

  • Software to display indoor and outdoor bid screen
  • Software to electronically record and stream live Auction footage.
  • Software to electronically scribe incoming bids.
  • Software to provide electronically bidder registration
  • Software to provide online bidding services.
  • Software to store and manage Auction information and data

In circumstances where the Company is utilising a Timed Auction service, the Provider will provide:

  • Software to display indoor and outdoor bid screen
  • Software to automatically accept and decline incoming online bids.
  • Software to provide electronically bidder registration
  • Software to store and manage Auction information and data

In circumstances where the Company is utilising a Stream Only Auction service, the Provider will provide:

  • Software to electronically record and stream live Auction footage.
  • Software to record Auction statistics
  • Software to store and manage Auction information and data.
Contractual Notices
The Provider:

Any notices must be sent directly to RE Software Pty Ltd – Sales via; Australia Post – PO Box 3319 North Strathfield, NSW 2173 OR Electronically – maurie@resoftware.com.au

The Company:

Any notices must be sent directly to the Company as per Schedule 5.

Goods and Services Tax

All fees are exclusive or GST as per Schedule 5.

SCHEDULE 2

ACCEPTABLE USE POLICY

  1. Introduction

    1. This acceptable use policy (the "Policy") sets out the rules governing:
      1. the use of the website www.auctionslive.com.au, and the service available on that website (the "Service"); and
      2. the transmission, storage and processing of content by you, or by any person on your behalf, using the Service ("Content").
    2. References in this Policy to "you" are to any Company for the Service and any individual user of the Service (and "your" should be construed accordingly); and references in this Policy to "us" are to identify provider (and "we" and "our" should be construed accordingly).
    3. By using the Service, you agree to the rules set out in this Policy.
    4. We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Service.
    5. You must be at least 16 years of age to use the Service; and by using the Service, you warrant and represent to us that you are at least 16 years of age.

  2. General Usage Rules

    1. You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service.
    2. You must not use the Service:
      1. in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
      2. in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
    3. You must ensure that all Content complies with the provisions of this Policy.

  3. Unlawful Content

    1. Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
    2. Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
      1. be maliciously false;
      2. be obscene or indecent;
      3. infringe any copyright, database right, trade mark right, design right, right in passing off, or other intellectual property right;
      4. infringe any right of confidence, right of privacy or right under the Privacy Act;
      5. constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
      6. be in contempt of any court, or in breach of any court order;
      7. constitute a breach of racial or religious hatred or discrimination legislation;
      8. be blasphemous;
      9. constitute a breach of legislation; or
      10. constitute a breach of any contractual obligation owed to any person.
    3. You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

  4. Graphic Material

    1. Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for minors.
    2. Content must not depict violence in an explicit, graphic or gratuitous manner.
    3. Content must not be pornographic or sexually explicit.

  5. Factual Accuracy

    1. Content must not be untrue, false, inaccurate or misleading.
    2. The content provided for the advertised sale must consist of factual statements that are accurate. Additionally, any opinions expressed in the content regarding the sale must be reasonable, sincerely held, and supported by a clear basis.

  6. Negligent Advice

    1. Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
    2. Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

  7. Etiquette

    1. Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
    2. Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
    3. You must not use the Service to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
    4. You must not use the Service for the purpose of deliberately upsetting or offending others.
    5. You must not unnecessarily flood the Service with material relating to a particular subject or subject area, whether alone or in conjunction with others.
    6. You must ensure that Content does not duplicate other content available through the Service.
    7. You must ensure that Content is appropriately categorised.
    8. You should use appropriate and informative titles for all Content.
    9. You must at all times be courteous and polite to other users of the Service.

  8. Marketing and Spam

    1. Content must not constitute or contain spam, and you must not use the Service to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
    2. You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Service or that you find using the Service.
    3. You must not use the Service to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
    4. You must not use the Service in any way which is liable to result in the blacklisting of any of our IP addresses.

  9. Regulated Businesses

    1. You must not use the Service for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
    2. You must not use the Service for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
    3. You must not use the Service for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.

  10. Monitoring

    1. You acknowledge that we may actively monitor the Content and the use of the Service.

  11. Data Mining

    1. You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Service.

  12. Hyperlinks

    1. You must not link to any material using or by means of the Service that would, if it were made available through the Service, breach the provisions of this Policy.

  13. Harmful Software

    1. The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Service, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
    2. The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Service, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

  14. Third Party API and XML Services

    1. The Company uses third party application programming interfaces (APIs) and extensible markup language (XML) feeds.
    2. The Company is not responsible for, and cannot guarantee the proper performance of, the third party APIs and XML feeds that it utilises. You subsequently acknowledge and agree to hold the Company harmless from and against any and all claims or losses, howsoever arising, in relation to the use of the APIs and XML feeds.
    3. The Company uses YouTube API Services. The Google Privacy Policy can be found at https://www.google.com/policies/privacy.
      1. By using our services and our Website, you agree to be bound by YouTube’s Terms of Service.
      2. YouTube’s Terms of Service can be found at https://www.youtube.com/t/terms.
    4. The Company utilises Google API Services, such as Google Calendar and Google Analytics, while maintaining a rigorous adherence to Google's API Services User Data Policy which can be found at https://developers.google.com/terms/api-services-user-data-policy. This commitment is aimed at safeguarding user data privacy and security. By using our services or visiting our website, you implicitly agree to be bound by Google's API Services User Data Policy, emphasising our dedication to protecting data.
    5. The Provider offers an eSIGN service, which is seamlessly integrated into its Digital Auction Solution (the eSign Service). The Company acknowledges that this electronic document signing service is powered by OneSpan Sign. It is the responsibility of the Company to ensure that electronic contract signing is legally recognised within the specific jurisdiction (Country, State, Territory, or Province) where it is intended for use. The Provider explicitly disclaims any responsibility and does not provide warranties regarding the use of this service. By opting to utilise this service, the Company agrees to abide by OneSpan's Terms and its Associated Schedules, accessible at https://www.onespan.com/master-terms-and-schedules. For additional details regarding the integration, please refer to https://dev2.inroom.com.au/auctionslive-solutions/contract-signing.
      1. The Company hereby indemnifies the Provider for any loss, damage or claim that may arise as a result of the use of the eSign Service by the Company.
    6. The Provider allows mutual clients of Real Time Agent | Agent Solutions powered by Domain to integrate their service with Auctions Live Digital Auction Solution. By integrating their services, the parties agree and acknowledge that the Provider does not assume any risk or responsibility for the transfer of data or successful completion of the Contract of Sale. For additional details regarding the integration, data, and responsibility process, please refer to the following link: https://dev2.inroom.com.au/auctionslive-solutions/rta-integration
    7. The Provider offers the capability for third-party integration with Real Estate-based Customer Relationship Management (CRM) systems through APIs and XML feeds. The Company should note that the Provider does not provide any warranties and assumes no responsibility for the utilisation of these APIs and XML feeds.

SCHEDULE 3

SERVICE LEVEL AGREEMENT
Definitions

"Agreement" means this Agreement and any amendments, annexures or derivatives thereof.

"Alert" means a notification made by the Customer to the Provider and classified as per clause 6 of this Agreement.

"Business Relationship Manager" means Nathan Portelli or any other representative of the Provider as the case may be.

"Customer" means the real estate company utilizing the Services.

"Customers Provisioning Date" means the date that the Services are activated for the Customer.

"Parties" mean the Provider and the Customer jointly.

"Provider" means RE Software Pty Ltd trading as Auctions Live and any related bodies corporate, associated entities, apps and APIs.

"Review Period" means every six (6) months.

"Services" means the services outlined in clause 2 of this Agreement.

"SLA" means Service Level Agreement and is also referred to as this Agreement from time to time.

1. Overview

This Agreement constitutes an agreement between the Provider and the Customer for the Services.

This Agreement is valid as at the Customers Provisioning Date and will remain valid until such time as it is updated or replaced with a new Agreement provided by the Provider. The Parties acknowledge and agree that the Business Relationship Manager is responsible for facilitating regular reviews of this Agreement.

This Agreement outlines all the Services offered by the Provider to the Customer. Anything not provided for in this Agreement is not considered part of the Services.

The Provider and the Customer agree to be mutually bound by the terms of this Agreement. Acknowledgement of this Agreement and its terms constitutes acceptance.

2. Services

The Provider acknowledges, agrees and commits to providing the services outlined in this clause, hereby collectively defined as the Services, for the duration of this Agreement. The Provider warrants to the Customer that they will not incur a per Auction charge (as defined in the terms and conditions entered into between the Customer and the Provider) should the Provider be unable to administer the Services at the scheduled Auction time, thus resulting in the Customer being unable to utilise the Services.

3. Support

The Provider will provide the following support services for the duration of this Agreement:

  • Monitored telephone, email and live chat support.
  • Remote assistance using remote desktop and a virtual private network where available.

4. Availability

The Company guarantees a website, software, performance and storage uptime of over 95% each month, 24 hours a day, seven days a week. Uptime is measured based on the monthly average of availability, rounded down to the nearest minute.

5. Scheduled Downtime Maintenance

On the odd occurrence where the Provider needs to complete maintenance on its platforms potentially affecting the Services, the Provider will provide the Customer with at least thirty (30) days’ written notice in advance.

6. Response Time and Resolution Time

The Provider agrees to be bound by the following response and resolution times:

Alert Type:A-Priority Alert

Issue severity:Highly critical alert. Product is not available for use, or a significant proportion of the contracted functionalities are unavailable.
Response Time:Within 1 hour
Resolution Time:Within 4 hours, inclusive of the A-Priority Alert Response Time.

Alert Type:B-Priority Alert

Issue severity:Critical alert. One or more elements of the Product critical to the functioning of the Company’s business have ceased to respond entirely or respond exceptionally slowly.
Response Time:Within 2 hours
Resolution Time:Within 2 hours, inclusive of the B-Priority Alert Response Time.

Alert Type:C-Priority Alert

Issue severity:Non-critical alert. One or more product elements have ceased responding entirely or slowly, and a workaround is available.
Response Time:Within 10 hours
Resolution Time:Within 10 hours, inclusive of the C-Priority Alert Response Time.

7. Service Support Availability

The Provider will provide to the Customer the following support services, in accordance with this Agreement.

  • Telephone : 8:30 A.M to 5:00 P.M Monday – Saturday AEST
    • Calls received out of office hours will be forwarded to a mobile phone and best efforts will be made to answer / action the calls.
  • Email support: Monitored 7:00 A.M to 5:00 P.M Monday – Saturday AEST
    • Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day
  • Live chat support: Monitored 8:30 A.M to 5:00 P.M Monday – Saturday AEST
    • Inquiries received outside of office hours will be collected, however no action can be guaranteed until the next working day
  • Online Video Conferencing/Remote: Available 8:30 A.M to 5:00 P.M Monday – Friday AEST

SCHEDULE 4

SERVICES AND PRICING SCHEDULE

Please refer to the latest executed document supplied to the Company by the Provider.

If you are unable to locate your executed document (Schedule 4), please contact your Auctions Live account representative.

For additional clarification, kindly refer to Auctions Live Fee Schedule Frequently Asked Questions (FAQs).

SCHEDULE 5

COMPANY DETAILS AND PROVISIONING DATE OF SERVICE

Please refer to the latest executed document supplied to the Company by the Provider.

If you are unable to locate the executed document (Schedule 5), please contact your Auctions Live account representative.

ANNEXURE A

Please refer to the latest executed document supplied to the Company by the Provider if applicable.

Advanced Digital Auction Solutions

For Real Estate Agencies, Auction Houses and Independent Auctioneers