AUCTIONS LIVE SUBSCRIBER AGREEMENT

  • Subscriber Terms

AUCTIONS LIVE SUBSCRIBER AGREEMENT

PARTIES

  1. RE Software Pty Ltd (the " Provider ").
    A company incorporated in New South Wales, Australia
    having its registered office at:
    50a Mortlake Street,
    Concord NSW 2137; and

    2.        Your Office/Agency (the " Customer ").

AGREEMENT

1.        Definitions

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

" Account " means an account enabling the  Customer  to access and use the Auctions Live Service;

" Agreement " means this agreement including any Schedules, and any amendments to this Agreement from time to time;

" APA " means Auctions Per Annum;

" Auctions " means a properties going to auction;

" Business Day " means any weekday other than a bank or public holiday in Australia;

" Business Hours " means the hours of 09:30 to 16:30 AEST on a Business Day;

" Charges " means the following amounts:

(a)        the amounts specified in Part 2 Fees Schedule of Schedule 1;

" Customer Confidential Information " means:

(a)        any information disclosed by the Customer to the Provider that at the time of disclosure:

(i)        was marked as "confidential"; or

(ii)        should have been reasonably understood by the Provider to be confidential;

" Customer Data " means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer 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 Customer but excluding analytics data relating to the use of the Platform and server log files;

" Customer Personal Data " means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;

" Customer Personal Information " means any Personal Information that is processed by the Provider on behalf of the Customer in relation to individuals bidding at an auction;

" CRI " means the Customer Representative Initials;

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

" Effective Date " means the commencement date of this Agreement;

" 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, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

" Service " means Auctions Live;

" Service Defect " means a defect, error or bug in the Auctions Live Platform having an adverse effect OR a material 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:

(a)        any act or omission of the Customer or any person authorised by the Customer to use the Platform or Service;

(b)        any use of the Service contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(c)        a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or

(d)        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;

" 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, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;

" General Queue " means the process to generate an in room auction presentation, this process takes up to 72 hours;

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

" PAYG " means Pay As You Go;

" Minimum Quantity " means the minimum amount of Auction Per Annum (APA) from the Customers Effective Data and subsequent renewals. Should the Customer fail to achieve such minimums, the Customer is to pay the balance of the fee to meet the Minimum Quantity.

" Mobile Apps " means the mobile applications known as Auction Live Broadcast and RE Software Kiosk that is made available by the Provider through the  Google Play Store  and the  Apple App Store ;

" PRI " means the Provider Representative Initials;

" Personal Information " has the meaning given to it by the Office of the Australian Information Commissioners, and can be found on their website;

" 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;

" Privacy Act " means the Australian Privacy Act 1988 governed by the Office of the Australian Information Commissioner;

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

" Support Service " means support in relation to the use of, and the identification and resolution of errors in, the Service, but shall not include 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;

" Update " means a hotfix, patch or minor version update to any Platform software; and

" Upgrade " means a major version upgrade of any Platform software.

" Express Queue " means the process to generate an in room auction presentation, this process takes up to 10 minutes;

2.        Credit

2.1        This document was created by RE Software Pty Ltd.

3.        Term

3.1        This Agreement shall come into force upon the Effective Date.

3.2        This Agreement shall continue automatically, subject to termination in accordance with Clause 18 or any other provision of this Agreement.

3.3        Various Agreement Terms options are specified in Schedule 1. The Customer must advise when completing the Provisioning form fields the option they are committing to.

4.        Service

4.1        The Provider shall ensure that the Service will, on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account.

4.2        The Provider hereby grants to the Customer a non-exclusive licence to use the Service during the Term.

4.3        The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

(a)        the Service may only be used by the officers, employees and agents of the Customer;

4.4        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 Customer under Clause 4.2 is subject to the following prohibitions:

(a)        the Customer must not sub-license its right to access and use the Service;

(b)        the Customer must not permit any unauthorised person to access or use the Service;

(c)        the Customer must not use the Service to provide services to third parties;

(d)        the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and

(e)        the Customer must not conduct any load testing on the Platform or Service without the prior written consent of the Provider.

4.5        The Customer 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.

4.6        The Provider shall use all reasonable endeavours to maintain the availability of the Service to the Customer at the gateway between the public internet and the network of the hosting services provider for the Service, but does not guarantee 100% availability.

4.7        For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

(a)        a Force Majeure Event;

(b)        a fault or failure of the internet or any public telecommunications network;

(c)        a fault or failure of the Customer's computer systems or networks;

(d)        any breach by the Customer of this Agreement; or

(e)        scheduled maintenance carried out in accordance with this Agreement.

4.8        The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Service with the authority of the Customer comply with Schedule 2 (Acceptable Use Policy).

4.9        The Customer 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.

4.10        The Customer must not use the Service:

(a)        in any way that is unlawful, illegal, fraudulent or harmful; or

(b)        in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.11        For the avoidance of doubt, the Customer 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.

4.12        The Provider may suspend the provision of the Service if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend the Service on this basis.

5.        Maintenance Service

5.1        The Provider shall provide the Maintenance Service to the Customer during the Term.

5.2        The Provider shall where practicable give to the Customer at least 7 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.

5.3        The Provider shall give to the Customer at least 7 Business Days' prior written notice of the application of an Upgrade to the Platform.

5.4        The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least 2 Business Days' prior written notice of the application of any non-security Update to the Platform.

5.5        The Provider shall provide the Maintenance Service with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.

5.6        The Provider may suspend the provision of the Maintenance Service if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 5 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Service on this basis.

6.        Support Service

6.1        The Provider shall provide the Support Service to the Customer during the Term.

6.2        The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.

6.3        The Provider shall provide the Support Service with reasonable skill and care OR with a standard of skill and care reasonably expected from a leading service provider.

6.4        The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Service; and the Customer must not use the helpdesk for any other purpose.

6.5        The Provider shall respond promptly to all requests for Support Service made by the Customer through the helpdesk.

6.6        The Provider may suspend the provision of the Support Service if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 5 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Service on this basis.

7.        Customer Data

7.1        The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights.

7.2        The Customer warrants to the Provider that the Customer Data OR the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.

7.3        The Provider shall create a back-up copy of the Customer 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 was taken, and shall retain and securely store each such copy for a minimum period of 30 days.

7.4        Within the period of 5 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

8.        Mobile Apps

8.1        The parties acknowledge and agree that the use of the Mobile Apps, the parties' respective rights and obligations in relation to the Mobile Apps and any liabilities of either party arising out of the use of the Mobile Apps shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations or liabilities.

9.        No assignment of Intellectual Property Rights

9.1        Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

10.        Charges

10.1        The Customer shall pay the Charges to the Provider in accordance with this Agreement.

10.2        All amounts stated in or in relation to this Agreement are exclusive of GST.

11.        Payments

11.1        The Provider shall issue invoices in relation to provisioning and template changes/modifications to the Customer in advance.

11.2        The Provider shall issue invoices in relation to previously generated Auction Presentations on the 1 ST  working day of every month.

11.3        The Customer must pay the Charges to the Provider within the period of 7 days following the issue of an invoice in accordance with this Clause 11.

11.4        The Customer must pay the Charges by bank transfer, debit card or credit card.

11.5        If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may suspend the Customers Service.

12.        Provider's confidentiality obligations

12.1        The Provider must:

(a)        keep the Customer Confidential Information strictly confidential;

(b)        not disclose the Customer Confidential Information to any person without the Customer's prior written consent;

(c)        use the same degree of care to protect the confidentiality of the Customer 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;

(d)        act in good faith at all times in relation to the Customer Confidential Information; and

12.2        Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer 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 Customer Confidential Information.

12.3        This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

(a)        is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b)        is or becomes publicly known through no act or default of the Provider; or

(c)        is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

12.4        The restrictions in this Clause 12 do not apply to the extent that any Customer 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.

12.5        The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.

13.        Personal Data

13.1        The Provider and the company shall comply with the Privacy Act.

13.2        The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Privacy Act.

13.3        The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Personal Data.

13.4        The Provider shall, at the choice of the Customer, delete Personal Data.

14.        Warranties

14.1        The Provider warrants to the Customer that:

(a)        the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)        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; and

(c)        the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

14.2        The Provider warrants to the Customer that:

(a)        the Platform and Service will be maintained during the Term of the Agreement;

(b)        the Service will be free from major Defects;

(c)        the application of Updates and Upgrades to the Platform by the Provider will not introduce any major Defects into the Service;

(d)        the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(e)        the Platform will incorporate security features reflecting the requirements of good industry practice.

14.3        The Provider warrants to the Customer that the Service, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations within Australia.

14.4        The Provider warrants to the Customer that the Service, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

14.5        If the Provider reasonably determines, or any third party alleges, that the use of the Service by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:

(a)        modify the Service in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b)        procure for the Customer the right to use the Service in accordance with this Agreement.

14.6        The Customer 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.

14.7        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.

15.        Acknowledgements and warranty limitations

15.1        The Customer 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.

15.2        The Customer 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.

15.3        The Customer 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.

15.4        The Customer 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 Customer will not give rise to any legal liability on the part of the Customer or any other person.

16.        Limitations and exclusions of liability

16.1        Nothing in this Agreement will:

(a)        limit or exclude any liability for death or personal injury resulting from negligence;

(b)        limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)        limit any liabilities in any way that is not permitted under applicable law; or

(d)        exclude any liabilities that may not be excluded under applicable law.

16.2        The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:

(a)        are subject to Clause 16.1; and

(b)        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.

16.3        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any losses arising out of a Force Majeure Event.

16.4        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of profits or anticipated savings.

16.5        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of revenue or income.

16.6        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of use or production.

16.7        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of business, contracts or opportunities.

16.8        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss or corruption of any data, database or software.

16.9        Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any special, indirect or consequential loss or damage.

17.        Force Majeure Event

17.1        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.

17.2        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:

(a)        promptly notify the other; and

(b)        inform the other of the period for which it is estimated that such failure or delay will continue.

17.3        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.

18.        Termination

18.1        Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.

18.2        In the event this Agreement is terminate before the specified Term, the Customer must pay out the balance of the agreement within 30 days' of the written notice of termination.

18.3        Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

18.4        Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)        the other party:

(i)        is dissolved;

(ii)        ceases to conduct all (or substantially all) of its business;

(iii)        is or becomes unable to pay its debts as they fall due;

(iv)        is or becomes insolvent or is declared insolvent; or

(v)        convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)        an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)        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); or

(d)        if that other party is an individual:

(i)        that other party dies;

(ii)        as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)        that other party is the subject of a bankruptcy petition or order.

19.        Effects of termination

19.1        Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8, 11.2, 11.4, 12, 13.1, 13.3, 13.4, 13.5, 13.6, 13.7, 13.8, 13.9, 13.10, 13.11, 13.12, 13.13, 13.14, 13.15, 13.16, 13.17, 16, 19, 22 and 23.

19.2        Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

19.3        Within 30 days following the termination of this Agreement for any reason:

(a)        the Customer must pay to the Provider any Charges in respect of Service provided to the Customer before the termination of this Agreement; and without prejudice to the parties' other legal rights.

20.        Notices

20.1        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 Part 3 of Schedule 1 Service particulars:

(a)        delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or

(b)        sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,

        providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

20.2        The addressee and contact details set out in Clause 20.2 and Part 3 of 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 20.

21.        Subcontracting

21.1        The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

21.1        Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

21.2        The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

21.3        Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party business.

22.        General

22.1        No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

22.2        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).

22.3        This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

22.4        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.

22.5        This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. 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.

22.6        Subject to Clause 16.1, 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.

22.7        This Agreement shall be governed by and construed in accordance with Australian law in the State of New South Wales.

22.8        The courts of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

23.        Interpretation

23.1        In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)        that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)        any subordinate legislation made under that statute or statutory provision.

23.2        The Clause headings do not affect the interpretation of this Agreement.

23.3        References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

23.4        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.

SCHEDULE 1 (SUBSCRIPTION PARTICULARS)
1.        In Room Auctions

1.1        Key Specification of Service

The Service will provide the Company with the following key specifications:

(a)        Ability to create in-room auction presentations.

(b)        Ability to broadcast auction presentations in room and online.

(c)        Ability to electronically record and stream auctions live.

(d)        Ability to electronically scribe incoming bids.

(e)        Facility to store and manage auction information and data.

1.2        Subscription Type

(a)        In Room Auctions –  Pay-As-You-Go                                             PAYG         

(b)        In Room Auctions - Minimum Quantity of 100 APA                         Silver

(c)        In Room Auctions - Minimum Quantity of 200 APA                         Gold

(d)        In Room Auctions - Minimum Quantity of 400 APA                         Platinum

1.3        Schedule

PAYG

        Annual Subscription Fee                                                                 $880

        Fee Per Property (General Queue)                                                 $80

        Fee Per Property (Express Queue)                                                 $178

SILVER

        Annual Subscription Fee                                                                 $0

        Fee Per Property (General Queue)                                                 $75

        Fee Per Property (Express Queue)                                                 $166

GOLD

        Annual Subscription Fee                                                                 $0

        Fee Per Property (General Queue)                                                 $70

        Fee Per Property (Express Queue)                                                 $154

PLATINUM

        Annual Subscription Fee                                                                 $0

        Fee Per Property (General Queue)                                                 $65

        Fee Per Property (Express Queue)                                                 $142

OPTIONAL EXTRAS

        Template Design, Redesign, Additions and Enhancements                 $150 p/h

2.        Onsite Auctions

2.1        Key Specification of Service

The Service will provide the Company with the following key specifications:

(a)        Ability to register bidders electronically.

(b)        Ability to broadcast auction online.

(c)        Ability to electronically record and stream auctions live.

(d)        Ability to electronically scribe incoming bids.

2.2        Subscription Type

Premium (Unlimited Onsite Auctions)

2.3        Schedule

Premium Subscription                                                                          $880


3.        Contractual notices

Any notices must be sent directly to RE Software Pty Ltd via;

Australia Post – PO Box 3319 North Strathfield NSW 2173

OR

Electronically – info@auctionslive.com.au

4.        Service Setup and Activation (Provisioning)

Before the Service is setup and activated, the Customer must advise the Provider as to the In-Room Presentation Pack they wish to utilise along with any alterations.

It is the responsibility of the Customer to furnish the Provider with images, logos and videos required to setup the Service.

SCHEDULE 2 (ACCEPTABLE USE POLICY)

1.        Introduction

1.1        This acceptable use policy (the " Policy ") sets out the rules governing:

(a)        the use of the website www.auctionslive.com.au, and the service available on that website (the " Service "); and

(b)        the transmission, storage and processing of content by you, or by any person on your behalf, using the Service (" Content ").

1.2        References in this Policy to "you" are to any Customer 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).

1.3        By using the Service, you agree to the rules set out in this Policy.

1.4        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.

1.5        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

2.1        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.

2.2        You must not use the Service:

(a)        in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or

(b)        in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

2.3        You must ensure that all Content complies with the provisions of this Policy.

3.        Unlawful Content

3.1        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).

3.2        Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a)        be maliciously false;

(b)        be obscene or indecent;

(c)        infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d)        infringe any right of confidence, right of privacy or right under the Privacy Act;

(e)        constitute negligent advice or contain any negligent statement;

(f)        constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g)        be in contempt of any court, or in breach of any court order;

(h)        constitute a breach of racial or religious hatred or discrimination legislation;

(i)        be blasphemous;

(j)        constitute a breach of legislation; or

(k)        constitute a breach of any contractual obligation owed to any person.

3.3        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

4.1        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.

4.2        Content must not depict violence in an explicit, graphic or gratuitous manner.

4.3        Content must not be pornographic or sexually explicit.

5.        Factual accuracy

5.1        Content must not be untrue, false, inaccurate or misleading.

5.2        Statements of fact contained in Content and relating to properties must be true; and statements of opinion contained in Content and relating to properties must be reasonable, be honestly held and indicate the basis of the opinion.

6.        Negligent advice

6.1        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.

6.2        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

7.1        Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

7.2        Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

7.3        Content must not be liable to cause annoyance, inconvenience or needless anxiety.

7.4        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.

7.5        You must not use the Service for the purpose of deliberately upsetting or offending others.

7.6        You must not unnecessarily flood the Service with material relating to a particular subject or subject area, whether alone or in conjunction with others.

7.7        You must ensure that Content does not duplicate other content available through the Service.

7.8        You must ensure that Content is appropriately categorised.

7.9        You should use appropriate and informative titles for all Content.

7.10        You must at all times be courteous and polite to other users of the Service.

8.        Marketing and spam

8.1        You must not without our written permission use the Service for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.

8.2        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.

8.3        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.

8.4        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.

8.5        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

9.1        You must not use the Service for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

9.2        You must not use the Service for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.

9.3        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

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

11.        Data mining

11.1        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

12.1        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

13.1        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.

13.2        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.

Advanced Digital Auction Solution

For Real Estate Agencies, Auction Houses and Independent Auctioneers