Terms & Conditions – Residential (“Customer Terms”)
Applicable to customers holding residential subscriptions with smartrealty.com.au
Part A: General Terms and Conditions Applying to Subscriptions and Products
1. Definitions
“Administrative Office” means an office that serves a purely administrative function for an Agency Group.
“Agency Office” means:
(a) a physical office from which the business of supplying real estate agency services is physically and predominantly conducted (e.g. a law firm or serviced office for multiple businesses is not an Agency Office). For the avoidance of doubt, an Agency Office does not include an office that SR believes, on reasonable grounds, is in practice, an extension of an existing Agency Office or being utilised for the sole or dominant purpose of facilitating a person to enter into an additional Subscription.
(b) an Online Agency.
“Agency Group” means a group of Agency Offices (and if applicable an Administrative Office, but excluding Online Agencies) that are owned, controlled or operated within the same real estate agency network, franchise or brand.
“Agreement” has the meaning in clause 2 of these Customer Terms.
“All Depth Contract” is a contract to purchase an agreed type of Depth Product for all of your listings in either the Buy Section or the Rent Section as further described in clause 4.3 of Part C of these Customer Terms.
“Buy Section” means the section of the Platform for listings of properties for sale located at smartrealty.com.au/buy.
“Depth Contract” is a contract to purchase an agreed volume of Depth Products in either the Buy Section or Rent Section of the Platform in order to access discounted rates for such Depth Products, being either an All Depth Contract or an Elect Depth Contract.
“Depth Products” means the Products described in clause 1 of Part C of these Customer Terms and Conditions which can only be purchased under a Subscription to our Platform and which enhance the appearance and ranking of property listings on the Platform, including Feature Property, Highlight Property and Premiere Property.
“Elect Depth Contract” is a contract with a Minimum Commitment for you to purchase an agreed number of an agreed type of Depth Product for your listings in either the Buy Section or the Rent Section as further described in clause 4.2 of these Customer Terms.
“Feature Property” has the meaning in clause 1.1 of Part C of these Customer Terms.
“Flexi Depth Contract” is a type of Depth Contract that is required to acquire a Flexi Subscription, as further described in clause 4.7 of Part C of these Customer Terms.
“Flexi Subscription” has the meaning in clause 2 of Part B of these Customer Terms.
“Further Term” has the meaning in clause 3.2 of Part A of these Customer Terms.
“Highlight Property” has the meaning in clause 1.2 of Part C of these Customer Terms.
“Initial Term” has the meaning in clause 3.1 of Part A of these Customer Terms.
“Minimum Commitment” has the meaning in clause 4.2 of Part C of the Customer Terms.
“Multi-dwelling Listing” means a listing in the Buy Section that advertises four or more properties for sale in a Multi-dwelling Project.
“Multi-dwelling Project” means a single project containing four or more properties which has never had occupants (including those that are newly-titled or being sold off-the-plan).
“New Homes Section” means the “New Homes” section of smartrealty.com.au located at smartrealty.com.au/new-homes/ and which advertises properties with no previous occupants, including those that are newly-titled or being sold off-the-plan.
“Non-Depth Products” means the Products described in Part D of these Customer Terms and Conditions and are Products available for purchase from us that are not Depth Products.
“Online Agency” is an online business operated by a legal entity from which the business of real estate agency services is predominantly conducted and which is independent from any of our other customers.
“Order” has the meaning in clause 2(b) of Part A of these Customer Terms.
“Platform” means the smartrealty.com.au desktop website, mobile website and mobile applications (including mobile phone, tablet and wearable applications) and related systems, excluding the New Homes Section.
“Premiere Property” has the meaning in clause 1.3 of Part C of these Customer Terms.
“Product” means a Depth Product or Non-depth Product.
“Rent Section” means the section of the Platform for listings of properties for rent located at smartrealty.com.au/rent.
“Sold Section” means the section of the Platform for listings of properties that have sold, located at smartrealty.com.au/sold.
“Standard Listing” means our base level listing product that ranks below other listings with Depth Products applied (depending on the user’s search criteria and ordering preferences.
“Standard Subscription” has the meaning in clause 1 of Part B of these Customer Terms.
“Subscription” means your subscription with us that gives you the right to upload your listings to the Platform, being either a Standard Subscription or Flexi Subscription.
“Term” means your Initial Term and Further Terms (if applicable).
“We / our / us” means smartrealty.com.au (ABN 444 127 49 875); and
“You” means you, the legal entity that owns the Agency Office.
2. Your Agreement with us
Your agreement with us (Agreement) consists of:
(a) these Customer Terms and Conditions (as published at smartrealty.com.au/terms and as varied from time to time in accordance with clause 5(d) below), comprising: Part A – General Terms and Conditions Applying to Subscriptions and Products, Part B – Special Terms applying to Residential Subscriptions, Part C – Special Terms applying to Residential Depth Products and Contracts; Part D – Special Terms Applying to Non-depth Products and Part E – Miscellaneous Services; and
(b) any physical document or electronic interface that we make available to you which you sign or otherwise indicate your agreement to, and which identifies your Subscription, Depth Contract or Depth Product Order, including, but not limited to, paper order forms, insertion orders or contracts, emails, online order forms or other documents (including those made available to you via our Agent Admin (your Order); and
(c) the terms and conditions of our Privacy Policy, Platform Terms of Use and the Acceptable Use Policy applicable to your Subscription, as published at smartrealty.com.au/terms and as amended from time to time in accordance with clause 5(d) below; and
(d) the terms and conditions of any credit application accepted from you.
This Agreement is the entire agreement between us about its subject matter and it supersedes all prior agreements and understandings between us.
3. Term
3.1 The term of this Agreement is the initial term set out in the relevant Order for the Subscription (Initial Term) and any Further Terms, subject to termination in accordance with this Agreement.
3.2 For Subscriptions, the Order specifies an Initial Term (usually 12 months). Following the expiry of the Initial Term, your Subscription will, subject to your rights under clause 3.3 below, continue for further periods of the same period as the Initial Term (Further Terms) until terminated in accordance with this Agreement.
3.3 If you do not wish for your Subscription to continue for any Further Term, then you must, at least 30 days before the expiration of the Initial Term or the then current Further Term, provide us with clear written notice that you do not wish for your Subscription to continue beyond the Initial Term or the then current Further Term. If you give such notice, this Agreement will terminate upon the expiration of the Initial Term or the then current Further Term. To ensure that you are given an opportunity to exercise your rights under this clause 3.3, we will notify you via email of your opportunity to provide us with written notice under this clause 3.3 at least 40 days before the expiration of the Initial Term or the then current Further Term.
3.4 If we do not wish for your Subscription to continue for any Further Term, we will, at least 30 days before the expiration of the Initial Term or the then current Further Term, provide you with clear written notice that your Agreement will terminate upon the expiration of the Initial Term or the then current Further Term.
4. Your warranties and representations
You represent and warrant to us that at all times during the Term of this Agreement:
(a) you hold all required licences or accreditations to sell or lease all your listings on the Platform, including, but not limited to a real estate agency licence;
(b) you will not make any representations to your clients that are inconsistent with clause 4(a);
(c) you have authority to sell or lease all your listings on the Platform and have the proper authorities in place required by State or Territory regulations;
(d) you will comply with all of your obligations set out in clause 6.
5. Your acknowledgements
You acknowledge and agree that at all times during the Term of this Agreement:
(a) in consideration for us granting you a right to upload listings to the Platform and the other services we provide, you grant us an irrevocable, perpetual, world-wide, royalty free licence to publish, copy, licence to other persons, use and adapt for any purpose related to our business any content you provide to us during the Term, and this licence survives termination of this Agreement by you or us;
(b) we may, at our discretion, remove or amend some or all of your listings if you are, in our reasonable opinion, in breach of your obligations under clause 6.1(e) below;
(c) you are solely responsible for the content of your listings and any errors or omissions in your listings – our role is one of publisher;
(d) we may vary this Agreement or any of its constituent documents at any time and we will notify you of all variations via Agent Admin. In addition, for variations that may cause you material detriment, we will give you at least 30 days’ written notice via email or post before the variation takes effect and you may terminate this Agreement by giving us written notice during the 30 day notice period;
(e) this Agreement consists of the documents referred to in clause 2 above, as varied from time to time in accordance with clause 5(d) above);
(f) all features of our Subscriptions and Products are subject to change, development and discontinuation and, as such, we may vary or discontinue any feature of a Subscription or Product at any time and we will notify you of all variations or discontinuations via Agent Admin. In addition, for variations or discontinuations that may cause you material detriment, we will give you at least 30 days’ written notice via email or post before the variation or discontinuation takes effect and you may terminate this Agreement by giving us written notice during the 30 day notice period;
(g) we will use best endeavours to provide you with continuous and fault-free operation of the Platform and the other services we provide you, however we cannot guarantee this and technological failures or delays may prevent us from doing so;
(h) where you have provided us with your contact details or your employees have provided us with their contact details (verbally or in writing, including by the provision of a business card to our employees) we may contact you and your employees from time to time in relation to Products and services offered by us or our business partners and you authorise us:
(i) to contact you or your employees via phone, email, text message, push notifications and other electronic media, unless you explicitly request us not to contact you via these media; and
(ii) to contact you or your employees via any of these methods without including an unsubscribe facility, to the extent permitted by law.
6. Your obligations
6.1 Your obligations to us are as follows:
(a) you will only upload listings to the Platform yourself or via an authorised third party who has been provided with and agreed to each of the documents comprising this Agreement (subject always to clause 6.1(l) below);
(b) if you are, in our reasonable opinion, in breach of clause 6(e) below, you will promptly comply with any direction we give to you in relation to your relevant listing(s), including any direction to delete, amend or update any relevant listing(s);
(c) you will comply with the Privacy Policy, Acceptable Use Policy and Platform Terms of Use (as varied from time to time);
(d) where you provide us with personal information of any individual, you must inform that individual that their personal information will be used and disclosed by us in accordance with our Privacy Policy;
(e) you will ensure that any statement you make to us or any content or material supplied by you (including content uploaded to the Platform) :
(i) is not unlawful;
(ii) is not provided for an improper purpose;
(iii) is not misleading or deceptive or likely to mislead or deceive (including for the reason that the branding on a listing would, or would be likely to, mislead or deceive consumers about the Agency Group, Agency Office or individual agent that was responsible for selling the relevant property);
(iv) does not include information that is defamatory, fraudulent, infringes the intellectual property rights of third parties or would otherwise expose us to any liability, legal proceedings or other sanction; and
(v) does not otherwise breach the Acceptable Use Policy;
(f) you will comply with all applicable laws, including without limitation, the Competition and Consumer Act 2010 (including the Australian Consumer Law); Trade Marks Act 1995; fair trading legislation; real estate agent legislation and regulations (including rules governing the disclosure, retention and payment of any rebates or benefits) and any other applicable advertising standards and regulations including the Privacy Act 1988 and regulations thereunder;
(g) you will ensure that you and all employees of your Agency Office(s) will treat our employees with courtesy at all times and not threaten, harass, abuse, assault, use offensive language towards, defame or repeatedly and unnecessarily contact our employees, contractors or agents or otherwise cause them distress or discomfort;
(h) you will comply with any guidelines and codes issued by your local and national body for your type of organisation;
(i) you will ensure that your username and password for accessing any service supplied by us are kept secure at all times and are only disclosed to persons employed by you or engaged to provide services to you and who are authorised to incur charges on your behalf. However, you are responsible for any use of any service supplied by us using your username and password by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use;
(j) you undertake that you will only collect, use, disclose and store personal information obtained through the Platform including through leads generated by users submitting enquiries on the Platform, for the sole purpose of contacting the person enquiring in relation to the specific property they have enquired about, unless advised otherwise by us;
(k) unless we waive this requirement, you must have one Subscription per Agency Office and may only have one Subscription per Agency Office, save that an Agency Group may have one Administrative Office that does not require a Subscription. For the avoidance of doubt:
(i) you may only acquire and maintain multiple Subscriptions within an Agency Group if each Subscription is attached to a single Agency Office; and
(ii) an Online Agency may hold a maximum of one Subscription;
(l) you will not allow anyone else to use your Subscription to list on the Platform, including but not limited to:
(i) another Agency Office;
(ii) an Administrative Office in your Agency Group; or
(iii) any individual that is not using your Subscription in the course of their employment for your Agency Office; and
a joint listing arrangement with another Agency Office does not exempt an Agency Office from compliance with this clause;
(m) *you will not allow the upload of a property listing under your Agency Office’s subscription:
(i) where the authority to sell the property does not expressly appoint your Agency Office; or
(ii) if another Agency Office in the same Agency Group is closer in proximity to the geographic location of the property (unless the property is within 50 kilometres of your Agency Office); and
(n) you will ensure that you do not use our registered or unregistered trade marks for any purpose that we have not previously approved in writing or in a manner that is likely to mislead individuals into believing there is an association between your brand and our brand, other than that of customer and service provider, without our prior written consent.
7. Termination or suspension by us
7.1 Without limiting our other rights, we may immediately terminate this Agreement or suspend or temporarily remove any of your listings if:
(a) you fail to pay any fees or charges due to us within 30 days after the due date;
(b) any of your warranties or representations in clause 4 are incorrect;
(c) you are in material breach of your obligations under this Agreement (and, for these purposes, any breach of any obligation under clause 6 above will be regarded as material);
(d) you are in breach of this Agreement (whether or not the breach is material and fail to rectify the breach within 7 days of us giving you notice of the breach and requiring that it be remedied;
(e) you enter into bankruptcy, liquidation, provisional liquidation, administration, receivership, receivership and management, a composition of arrangement with your creditors, or appoint a receiver, manager or controller over all or any part of your assets, or are protected from creditors under any statute, or become or are deemed to become insolvent; or
(f) you die, or if you are in a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.
7.2 In the event that we exercise our right to suspend or temporarily remove your listings pursuant to clause 7.1 above, you will remain liable for all Subscription and Product fees until the termination or expiration of this Agreement.
8. Termination by you
8.1 In addition to any rights of termination you may have under another clause of this Agreement, you may immediately terminate this Agreement if:
(a) we are in material breach of any of our obligations under this Agreement;
(b) we are in breach of any of our obligations under this Agreement (whether or not the breach is material) and fail to rectify the breach within 7 days of you giving us notice of the breach and requiring that it be remedied;
(c) we enter into bankruptcy, liquidation, provisional liquidation, administration, receivership, receivership and management, a composition of arrangement with your creditors, or appoint a receiver, manager or controller over all or any part of your assets, or are protected from creditors under any statute, or become or are deemed to become insolvent;
(d) we are wound up or an application for winding up is filed; or
(e) we exercise our right to suspend or temporarily remove your listings under clause 7.1 for a period of 30 days or more.
9. Effect of termination or suspension
9.1 Termination of this Agreement or suspension or temporary removal of listings pursuant to clause 7.1 does not:
(a) relieve you of your liability to pay fees up to the effective time of termination and, for the avoidance of doubt, invoices will still be issued and payable for periods of suspension and during notice periods leading to termination;
(b) relieve either party of its accrued obligations and liabilities pursuant to this Agreement which may be enforced before or after termination; or
(c) waive any accrued rights in respect of any breach of this Agreement by either party.
9.2 REA may decide, in its sole discretion, not to enter into a new agreement with you if you have previously terminated an Agreement or contract of any type with REA.
9.3 The sums payable by you on termination shall be a debt due to us payable within 30 days of notice of termination.
10. Fees and billing
10.1 The initial fees for your Subscription and Products will be specified in your Order. Fees are payable from the date specified in your Order. Subscription fees are payable monthly and for the avoidance of doubt the fees specified in your Order are the monthly rates (unless stated to be for a different period).
10.2 We reserve the right to change the fees for any Subscription or Product at any time. You will be notified thirty days in advance of any changes to fees and may terminate prior to these changes taking effect if you consider these will cause you a material detriment.
10.3 Current and amended fees will be made available to you through a channel notified to you for the applicable Product, such as our Platform, these terms and conditions, price look-up tools or marketing materials. It is your responsibility to quote up-to-date prices and the fees apply regardless of your ability to recoup the fees from the vendor.
10.4 If we incur a third party cost to process a card payment or other transaction, we may charge a reasonable transaction fee.
10.5 The initial month’s fees may be billed in advance or in arrears to fall within our regular billing cycle. Fees for subsequent months are payable in accordance with the invoice we submit to you.
10.6 At our discretion, we may send invoices to you by email, post or such other electronic method as we notify to you. Upon request, you will advise us an email address to which we may send your invoices. It is your responsibility to ensure that email address is accurate, is up-to-date, is functioning properly and is regularly monitored by an authorised person on your behalf. It is also your responsibility to advise us of any changes to the email address to which invoices should be sent. If an email address notified by you ceases to function properly or otherwise should be amended, you will promptly provide an alternate email address for the purpose of receiving invoices. Invoices are deemed to be received by you on the day immediately following the date shown by our email system as the sent date. Any failure to receive an invoice does not relieve you of liability for payment of fees by the due date shown on the invoice
10.7 You will pay all taxes, duties and other government charges payable in connection with this Agreement whether applying as at the date of this Agreement or in the future including, without limitation, any applicable goods and services tax (GST), other value added tax, sales tax, stamp duty and turnover tax, but excluding taxes, duties and government charges based on our income.
10.8 Fees for Subscriptions are determined on the basis of the physical location of the Agency Office holding the Subscription, not the billing address listed for the Agency Office.
11. Credit provisions
11.1 You acknowledge and agree that we may at any time:
(a) obtain from a credit reporting agency, a credit report containing personal credit information about you or your directors and officers, in relation to any commercial credit we provide or consider providing to you;
(b) receive from a credit reporting agency, a credit report containing personal information about you or your directors and officers in relation to overdue payments;
(c) give information to, or seek information from, any credit provider named in a credit report issued by a credit reporting agency, and any existing, previous or future supplier of goods to your or any related party of the Applicant (as defined in the Corporations Act 2001) and such information may include details of your (or your related parties’) credit arrangements, credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other; and
(d) in circumstances where we request a director’s guarantee to secure the repayment of any amount you owe to us from time to time and this is not provided to us, charge the interest you have now or in the future, either solely or jointly, in all present and after-acquired personal property.
11.2 You acknowledge that the security interest granted to us pursuant to clause 11.1(d) is capable of being registered pursuant to the Personal Property Securities Act 2009 (“PPS Act”). You further acknowledge that the security interest will continue until we give a final release in relation to the secured goods
11.3 You acknowledge that we may take all necessary steps to register the security interest granted to us pursuant to clause 11.1(d) under the PPS Act, and you consent to us doing so. You further undertake to promptly provide any information and do all things as required by us to enable us to perfect our security interest in the goods.
12. Limitation of liability and indemnity
12.1 Subject to clause 12.4 below, to the extent permitted under the Competition and Consumer Act 2010 (including the Australian Consumer Law) or any other applicable law, each party:
(a) excludes all conditions and warranties implied into this Agreement;
(b) excludes liability for consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue, loss of data and loss of profits); and
(c) limits its liability for breach of any consumer guarantee, condition or warranty that cannot be excluded to (at the party’s option) resupplying the relevant service or paying the cost of having the relevant service resupplied.
12.2 Each party must take all reasonable steps to minimise any loss it suffers or is likely to suffer and that is the subject of a claim under this Agreement. If a party does not take reasonable steps to minimise that loss, then liability for the relevant claim will be reduced accordingly.
12.3 Neither party will be liable under this Agreement to the extent that liability is caused by:
(a) the other party’s breach of its obligations under this Agreement or its negligent act or omission; or
(b) any delay in performance or breach of this Agreement which arises as a result of any matter beyond its control (including, in our case, viruses, other defects or failure of the server hosting the Platform).
12.4 You indemnify us and our officers, employees and agents (“those indemnified”) against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any content or material uploaded or submitted by you in connection with this Agreement or any other act or omission by you in connection with your use of the Platform or our other services.
12.5 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
13. Assignment
13.1 You must not assign this Agreement without our prior written consent, which will not be unreasonably withheld.
13.2 We may assign this Agreement at any time. If we assign this Agreement, we will notify you of the assignment.
14. Notices
14.1 We will send all notices and other communications to you at the email address, postal address and/or facsimile number you have provided to us. It is your sole responsibility to ensure that you provide us with your current contact email address, postal address and/or facsimile number.
14.2 All notices from you to us (including termination notices) must be sent:
(a) by email to [email protected] or
(b) by fax to 1800 73 81 90
Emails will not be accepted from Hotmail, Gmail or similar accounts. These contact details may be amended from time to time. It is your responsibility to check these General Terms and Conditions for the current contact details.
15. General provisions relating to rights and remedies
15.1 No delay or failure by either party to enforce any provision of this Agreement will be deemed a waiver or create a precedent or will prejudice rights. No waiver by either party will be effective unless it is in writing and signed.
15.2 If any term of this Agreement is void, unenforceable or illegal, that term is severed. The remainder of this Agreement has full force and effect.
15.3 Each party’s rights and remedies provided in this Agreement are in addition to other rights and remedies given by law and equity independently of this Agreement.
16. Governing Law
16.1 The laws of Western Australia, Australia govern this Agreement.
16.2 Each party submits to the exclusive jurisdiction of the Courts of WA, Australia and waives any right to object to an action being brought in the Courts of WA (including that the action has been brought in an inconvenient forum, or that those Courts do not have jurisdiction).
Part B: Special terms applying to Residential Subscriptions
1. Standard Subscriptions
A Free Subscription provides you with the right to upload an unlimited number of your residential property listings to the Rent Section and 10 of your residential property listings per month to the Buy Section as Standard Listings (Limit) at no cost and the opportunity to purchase additional Standard Listings above the Limit, as well as additional Products. The Limit and the cost of Standard Listings that are uploaded above the Limit are subject to change from time to time and will be communicated to you at smartrealty.com.au/packages or via such method or location notified to you from time to time. A listing will be deemed to be uploaded as a Standard Listing if no Depth Product is applied within 24 hours of display and if a Depth Product is later applied, you will be charged for both the Standard Listing (if you have exceeded the Limit) and the Depth Product and no refunds will be provided.
2. Standard Subscriptions
2.1 A Standard Subscription combines:
(a) the rights of a Standard Subscription, at a discounted price compared to the Standard Subscription;
(b) property market data, statistics and analytics (Market Data);
(c) data to help you track the effectiveness of a listing campaign against other comparable listings on the Platform and return on investment data such as number of views and measures of user engagement with the listing (Campaign Data); and
(d) a Standard Depth Contract which is required to be purchased as part of a Standard Subscription.
2.2 As a condition of accessing the benefits of a Standard Subscription, you must upload and maintain all of your sale and rental listings to smartrealty.com.au as soon as practicable during the Term until sold or leased (as applicable), subject only to restrictions imposed by law or by binding prior contract.
2.3 You acknowledge that Market Data and Campaign Data:
(a) is provided for general indicative and trending purposes only – we do not warrant the accuracy or reliability of this data and it should not be regarded as a substitute for professional advice;
(b) is provided for your internal business use only and may not be copied, reproduced, published or disclosed to any person outside your agency or franchise group, save that Campaign Data may be used to illustrate to your clients the performance of their listing(s) on the Platform and in presentations and meetings with prospective clients as an example of the performance of a property campaign on the Platform; and
(c) may not be used, referenced or quoted for promotional purposes of you, your agency or your franchise group.
2.4 Acquiring new Products or elements of an offer program during the term of a Standard Subscription (e.g. eBrochureAll) will append the relevant Products to your Subscription at the offer rate, but will not change the Subscription term.
2.5 You can view the up-to-date Depth Product prices for each suburb under a Standard Subscription at any time by visiting the look-up tool at upgrade.smartrealty.com.au or such other method or location notified to you from time to time. Any special offers specifying different prices or look-up tools will override these prices.
3. Premium Listing
3.1 If you have a subscription to the New Homes Section or smartrealty.com.au you may submit an Order for a listing to be uploaded to the Buy Section of the Platform (Premium Listing) at a communicated Listing rate, subject to Part B of these Customer Terms (and, if the ordered listing is a Depth Product, Part C of these Customer Terms will also apply).
3.2 You may also purchase Pay-Per-Listings for listings to appear on the New Homes section of smartrealty.com.au or on realcommercial.com.au, in which case they will be bound by the terms applying to that section or website.
3.3 You will not be entitled to any refund if you incorrectly or inadvertently select or load a listing as a Premium Listing , either via Agent Admin or via XML feed.
X. Gold Listing
x.1 If you have a subscription to the New Homes Section or smartrealty.com.au you may submit an Order for a listing to be uploaded to the Buy Section of the Platform (Gold Listing) at a communicated Listing rate, subject to Part B of these Customer Terms (and, if the ordered listing is a Depth Product, Part C of these Customer Terms will also apply).
x.2 You do not need to purchase any Pay-Per-Listings for listings to appear on the New Homes section of smartrealty.com.au or on realcommercial.com.au, in which case they will be bound by the terms applying to that section or website.
x.3 You will not be entitled to any refund if you incorrectly or inadvertently select or load a listing as a Gold Listing , either via Agent Admin or via XML feed.
4. Subscription upgrades and downgrades
4.1 You may downgrade to a Standard Subscription on a contract anniversary by giving us at least 30 days’ notice in advance of that contract anniversary. If you elect to downgrade your Subscription under this clause 4.1, you will enter a new 12 month Initial Term for the Standard Subscription.
4.2 You may upgrade to a Premium Subscription or upgrade the Gold Depth Contract component of a Standard Subscription at any time.
Part C: Special terms applying to Residential Depth Products
1. Residential Depth Products
1.1 Feature Property
(a) A Feature Property is an enhanced listing Product to promote your listing above standard listings in search results, for the term specified in your Order for the Feature Property. A Feature Property will typically rank below any Highlight or Premiere Properties in search results, depending on the users’ search criteria and ordering preferences.
(b) Feature Property also provides an agency logo and property photo.
1.2 Highlight Property
(a) A Highlight Property is an enhanced listing Product to promote your listing above Feature Properties and standard listings in search results, for the term specified in your Order for the Highlight Property. A Highlight Property will typically rank below any Premiere Properties in search results, depending on the users’ search criteria and ordering preferences.
(b) A Highlight Property also provides greater prominence for your agency branding than a Feature Property and a larger photo than a Feature Property.
(c) The Highlight Property Product is only available for listings of established residential properties (i.e. not for dwellings that have not been constructed or sold off the plan).
1.3 Premiere Property
(a) A Premiere Property is an enhanced listing Product to promote your listing above Highlight Properties, Feature Properties and standard listings for the term specified in your Order.
(b) A Premiere Property also provides greater prominence for your agency branding than a Highlight Property or Feature Property and a larger photo, depending on the users’ search criteria and filtering.
(c) Any Multi-dwelling Listing that is uploaded as a Premiere Property will not fall under a Depth Contract attached to a residential subscription and will be charged at the rate specified at developerpremiereprices.smartrealty.com.au, these rates being subject to change at all times.
1.4 Rankings
Whilst the typical ranking of listings will be Premiere-Highlight-Feature-Standard in that order, that will always be subject to the users’ search criteria and ordering preferences.
2. Sold Section
2.1 The Depth Product features described above apply in the Buy Section of our Platform and do not transfer to the Sold Section of the Platform. The cost of Depth Products does not include display in the Sold Section. The features of the Sold Section (including the rules governing the ranking of Depth Products and standard listings (with no Depth Product applied) and the retention of Depth Products post transfer of a listing to the Sold Section) are subject to change, development and discontinuation and, as such, we may vary or discontinue any feature of the Sold Section at any time and we will notify you of all variations or discontinuations via Agent Admin. In addition, for variations or discontinuations that may cause you material detriment, we will give you at least 30 days’ written notice via email or post before the variation or discontinuation takes effect and you may terminate this Agreement by giving us written notice during the 30 day notice period. For the purposes of this clause, the following changes will be deemed not to be material changes to your rights or obligations:
(a) reducing or appending property data and content on a Sold Section listing;
(b) removing Depth products from all Sold Section listings;
(c) visual representation and layout of Sold Section listings, including the extent and location of agent branding; and
(d) ensuring the branding on the Sold Section listing at the time it was transferred to the Sold Section does not subsequently change.
2.2 From time to time, listings in the Sold Section may have Depth Products automatically applied at no extra cost depending on whether a sold price has been provided for the listing. As a general rule:
(a) subject to (c), if you do provide the correct sold price, property address and sold date for a listing, then the listing will display as a Highlight in the Sold Section; and
(b) subject to (c) if you do not provide a correct sold price, property address or sold date for a listing it will display as a standard listing in the Sold Section;
(c) if you purchased a Premiere Property and there is some remaining duration of the Premiere still to run when the property is moved to the Sold Section, it will continue to display as a Premiere Property for the remaining campaign duration, before dropping to a standard listing (in accordance with (b)) or a Highlight Property (in accordance with (a)).
3. General provisions applying to Depth Products
3.1 Where you have submitted an Order for a Depth Product in respect of a property listing (Depth Product Order), this cannot be cancelled or modified without our agreement. No refunds will be given once the Depth Product Order is submitted.
3.2 No refunds are given where properties listed in the form of Depth Products are sold, leased or removed from the site for any other reason before the expiry of the Depth Product.
3.2 You cannot swap the property nominated in your Depth Product Order with any other property.
3.4 Where a Depth Product is further upgraded before the end of its term, you will not be entitled to a refund in respect of any unused portion of the previous Depth Product’s term.
3.5 If a listing is upgraded to a higher priority Depth Product and the new Depth Product has a term less than the remaining term of the existing Product for that listing, then the listing will revert to the previous Depth Product once the term of the new Depth Product has expired.
3.6 You may upgrade from Feature Property to Highlight Property or from Highlight Property to Premiere Property at any time.
3.7 No downgrades are permitted for any Depth Product during the term of the Depth Product unless otherwise specified in your Agreement with us.
3.8 If your Subscription terminates or is suspended for any reason, then so too will your Depth Product Order(s) and no refunds are given where termination or suspension occurs before the end of the Depth Product term (specified in your Depth Product Order).
3.9 Where the term of a Depth Product extends beyond the renewal date for your Subscription and your Subscription is renewed, then that Depth Product will be displayed for the remainder of its term, but it will be charged at the rate applicable to the Depth Product during the Further Term for your Subscription.
3.10 No refunds will be given where you incorrectly or inadvertently make a Depth Product Order or select or load listings as Depth Products.
3.12 Where more than one of the same Depth Product appears in a set of search results, the order of appearance is at our discretion.
3.13 If you purport to cancel a Depth Product or Depth Product Order you acknowledge that you shall remain liable for the fees payable until expiry of the Depth Product.
3.14 Any images contained in Depth Products must comply with our Acceptable Use Policy and reasonable directions given from time to time.
4. Depth Contracts – Elect, All and Flexi
4.1 In addition to your Subscription and ability to purchase Depth Products in respect of individual listings, you may also purchase Depth Contracts in order to access discounted rates for Depth Products. Depth Contracts may be either All Depth Contracts or Elect Depth Contracts and only some of these Depth Contracts will meet the requirements of a Flexi Depth Contract.
4.2 An Elect Depth Contract requires you to apply a Depth Product to an agreed number of listings per agreed time period (Minimum Commitment) at a discounted price, subject to the same terms and conditions. If you do not reach the Minimum Commitment, you will still be charged as if you had reached the Minimum Commitment (on the assumption that the listings comprising your Minimum Commitment were located in the suburb in which your Agency was located at the time of billing).
4.3 An All Depth Contract automatically elevates all your new listings to an agreed type of Depth Product at a discounted price, subject to the same terms and conditions. After submitting your Order for an ‘All’ contract there may be a delay before the Product is activated. Some ‘All’ contracts require you to upload a minimum number of listings each month, to which Depth Products will be automatically applied, which also constitutes a Minimum Commitment. As with Elect Depth Contracts, if you do not reach this Minimum Commitment, you will still be charged as if you had uploaded the Minimum Commitment (on the assumption that the listings comprising your Minimum Commitment were located in the suburb in which your Agency was located at the time of billing).
4.4 The following listings may be counted towards the Minimum Commitment:
(a) new listings that have not been upgraded already;
(b) listings that are re-upgraded during the listing campaign duration; and
(c) existing listings that are upgraded at the contract rate;
provided that they are in the relevant section specified in the Order for the Depth Contract (i.e. either the Buy Section or Rent Section of the Platform). For the avoidance of doubt, listings in the Rent Section will be excluded from counting towards the Minimum Commitment of a Depth Contract for the Buy Section (but land and rural sale listings will be included unless otherwise directed by you). Similarly, listings in the Buy Section will be excluded from counting towards the Minimum Commitment of a Depth Contract for the Rent Section.
4.5 You may terminate your All Depth Contract within 3 months of the Initial Term by giving us notice and termination will take effect 14 days after we receive your notice.
4.6 Subject to clause 4.5 above, All Depth Contracts and Elect Depth Contracts are subject to the same Term provisions in clause 3 and Termination provisions in clause 7 and 8 of Part A above as if they were a Subscription. You shall remain liable for the fees payable until the termination and these shall be a debt due to us payable within 30 days of notice of termination.
4.7 A Depth Contract will only meet the requirements of a Premium Depth Contract if it has the following features:
(a) an Initial Term for the Depth Contract of 12 months duration aligning to the term of your Premium Subscription (which must start on the 1st of a month), which continues for further terms in accordance with clause 3 and is subject to the same termination provisions in clause 7 and 8 of Part A as if it were a Subscription;
(b) it applies to listings in the Buy Section of the Platform (and not the Rent Section), but by default land and rural listings will be included unless you specifically direct us not to include those listings; and
(c) any other additional requirements communicated to you either before you enter the Premium Subscription with us or during your Premium Subscription Term (in which case we will provide you with 30 days’ notice and you may terminate your Flexi Subscription with us during this period if you do not wish to become subject to these new requirements).
4.8 You may only terminate a Premium Depth Contract before the end of the 12 month contract term where you are also terminating your Premium Subscription.
4.9 You may upgrade any Depth Contract at any time as follows:
(a) by upgrading the Depth Product type (e.g. from Feature All to Highlight All) or adding a secondary Depth Contract (e.g. Highlight Elect 3 in addition to Feature All);
(b) by increasing the Minimum Commitment (e.g. Elect 3 to Elect 5 or Elect 10) or by upgrading an Elect Depth Contract to an All Depth Contract;
(c) by increasing the Depth listing duration (e.g. 30 days to 60 days, 90 days or unlimited); or
(d) by adding an additional Depth Contract section type (e.g. Rent, Land or Rural) that was not taken up initially;
except that if this Depth Contract is your Flexi Depth Contract, this will require you to enter a new Initial term for your Flexi Subscription at then current rates.
4.10 We offer a number of different Subscriptions and Depth Contracts to cater for the different advertising needs of different Agency Offices. If we determine that a particular type of Subscription or Depth Contract does not cater for your predominant listing category, we reserve the right to refuse to enter into the contract with you or in the event that this is determined during your Term, transfer you to a more appropriate Subscription or Depth Contract for your usage. Where we transfer you to a new Subscription or Depth Contract during your Term, you will always be notified and provided with the right to opt out of this new contract and terminate your Agreement with us for a period of thirty days. Examples of where we will exercise this right are where the majority of your active listings are:
(a) in the Rent Section, but you only hold a Depth Contract for the Buy Section;
(b) in the Buy Section of our Platform, but you only hold a Depth Contract for the Rent Section; or
(c) newly titled or off-the-plan dwellings, but you only hold a Subscription to the Platform and you don’t hold a subscription for the New Homes Section.
4.11 An automatic re-upgrade is available on any Premiere All Depth Contract (“Re-upgrade All”) for residential, land and rural listings in the “Buy” section.
4.12 A Re-upgrade All, automatically re-upgrades all listings to Premiere at the end of their initial upgrade period at a discounted rate, subject to the same terms and conditions as specified in your Order.
4.13 The re-upgrade will occur automatically on the first business day in Melbourne following the expiration of the initial upgrade period, as specified in your Order, for all active listings. Despite being automatic there may be a delay before the Re-upgrade is visible on the Platform.
4.14 Exceptions are not permitted on a Re-upgrade All contract and listings downgraded as part of an Exception, as permitted in clause 5 Part C, will not be eligible for a re-upgrade under a Re-upgrade All Order
4.15 Subsequent upgrades to listings after the re-upgrade will be available at a discount but will not be automatic.
4.16 The Re-upgrade All term is the same as the existing Premiere All Depth Contract as specified in your Order and will continue for this term until terminated in accordance with these Terms and conditions.
4.17 A Re-upgrade All contract can be cancelled within the first 3 months of its purchase in accordance with clause 4.5 Part C.
4.18 If a Premiere All contract is downgraded, suspended or terminated, then so too will your Re-upgrade All Order with no entitlement to a refund in accordance with clause 3.7 and 3.8 of Part C.
4.19 Re-upgrade All is not available to developer customers or on Multi-dwelling Listings.
5. Exceptions
Some of our Depth Contracts specify that in each three month period that commences 1 July, 1 October, 1 January or 1 April (Quarter), you may downgrade a fixed number of your listings (Exceptions). If Exceptions are specified in your contract, the following terms apply:
5.1 New customers will not be eligible for Exceptions in the first Quarter of the Initial Term.
5.2 Unused Exceptions in a Quarter will be forfeited and will not roll over for use in the subsequent Quarter.
5.3 “Buy” section
(a) For listings uploaded under your Depth Contract for the “buy” section, you may use your Exceptions as follows:
• If you have a Premiere All contract, you may downgrade your listings to Highlight Properties or Feature Properties via Agent Admin. Your volume of Exceptions each Quarter will be equal to twenty per cent (20%) of the volume of unique paid upgraded listings that you uploaded to smartrealty.com.au during the prior three month period, rounded down to the nearest whole number.
• If you have a Highlight All contract that includes Exceptions, you may downgrade your listings to Feature Properties via Agent Admin. Your volume of Exceptions each Quarter will be equal to ten per cent (10%) of the volume of unique paid upgraded listings that you uploaded to smartrealty.com.au during the prior three month period, rounded down to the nearest whole number
(b) Your volume of Exceptions per Quarter and the applicable prices will be specified in Agent Admin.
(c) An Exception can only be applied to a listing within 24 hours of upload and each use of an Exception will reduce the number of Exceptions available for the Quarter in which it is applied.
(d) For listings to which Exceptions have been applied, after the listing duration, the listing will appear as a standard listing.
5.4 “Rent” section
(a) For listings uploaded under your Depth Contract for the “rent” section, you may use your Exceptions to downgrade your listings to standard listings by submitting a request via Agent Admin. You will not be charged for listings to which Exceptions have been applied. Your volume of Exceptions each Quarter will be equal to:
• twenty per cent (20%) of the volume of unique paid upgraded listings that you uploaded to smartrealty.com.au during the prior three month period, rounded down to the nearest whole number, if you have a Premiere All contract in the “rent” section; or
• ten per cent (10%) of the volume of unique paid upgraded listings that you uploaded to smartrealty.com.au during the prior three month period, rounded down to the nearest whole number, if you have a Highlight All or Feature All contract in the “rent” section.
(b) An Exception can only be applied to a listing within 1 Melbourne business day of upload and each use of an Exception will reduce the number of Exceptions available for the Quarter in which it is applied.
(c) For Exceptions applied on the last day of a month, the request must be received by us before 12pm.
(d) For listings to which Exceptions have been applied, after the listing duration, the listing will appear as a standard listing.
Part D: Special Terms Applying to Non-depth Products
1. Find Agents
1.1 The Find Agents section contains individual agent profiles (Individual Profiles) and agency profiles (Agency Profiles).
1.2 Individual Profiles include details the agent submitted to our site, together with their sold history and any free text description the agent or agency includes. They must not include Agency Profiles.
1.3 The individual agent ranking is based on the number of relevant sales listed on smartrealty.com.au, based on the user’s search criteria (including suburb, type and price) (Individual Agent Ranking).
1.4 It is a breach of clause 6.1(e)(iii) this Agreement and the Acceptable Use Policy to include false information or increase the Individual Agent Ranking by manipulating sold data in a misleading manner.
1.5 Individual Agent Rankings:
(a) are provided for general indicative and trending purposes only – we do not warrant the accuracy or reliability of this data;
(b) may not be used, referenced or quoted for promotional purposes of you, your agency or your franchise group.
1.6 Agency Profiles contain the details the agent submitted to our site. It may also include properties sold and rented by the agency that have not been included on an individual agent’s profile.
1.7 The ranking of any agency for a particular suburb searched by a user is alphabetical (with first priority given to the suburb searched and then surrounding suburbs) for any standard listings.
1.8 Agencies can also purchase an enhanced listing Product called “Feature Agent” for their Agency Profile which has the following features:
(a) priority above standard listings in search results;
(b) contact details and superior branding features for your agency;
(c) the ability to link to your agency’s website.
1.9 You may only purchase one Feature Agent Product per suburb and only three Feature Agent positions are available per suburb.
1.10 Where more than one customer acquires the Feature Agent Product in a suburb, Feature Agent listings will be featured in alphabetical order, with first priority given to the suburb searched and then surrounding suburbs.
1.11 All Feature Agent listings under one Subscription must contain the same image and text. We reserve the right to place limitations on the number of Feature Agents that may be purchased per Subscription.
2. eBrochure
2.1 An eBrochure is a colour brochure relating to a property sent by email to registered users of the Platform whose preferences match the eBrochure you purchase (e.g. suburb and price range).
2.2 eBrochures cannot be sent to users who have unsubscribed from them, due to Spam Act requirements.
2.3 eBrochures can only relate to active listings that are not under contract for sale or lease.
2.4 An eBrochure All Product automatically elevates all your listings to eBrochure with the same features and subject to the same terms and conditions. After submitting your Order for an eBrochure All contract there may be a delay before the Product is activated.
3. Exclusive Showcase
3.1 The Exclusive Showcase Product showcases listings that do not necessarily match a user’s search criteria, by placing them in a prominent side position within the property search results page.
3.2 Only one agent can acquire the Exclusive Showcase Product for a particular suburb at any one time. If a user conducts a multiple postcode or suburb search then the Exclusive Showcase Product may rotate between the customers who have purchased the relevant Exclusive Showcases.
3.3 Bookings for the Exclusive Showcase Product must be made in blocks of one week. We reserve the right to set limits on the number of weeks for one booking.
4. Agent Banners
4.1 The Agent Banner Product is only available for purchase in the Rent Section of the Platform.
4.2 The Agent Banner Product lets you place your agency banner within the property search results page of your specified suburb in the Rent Section of the Platform. There are various banner positions that may be available.
4.3 Only one agent can acquire the Agent Banner Product for a particular suburb at any one time. If a user conducts a multiple postcode or suburb search then the Agent Banner Product may rotate between the customers who have purchased the relevant Agent Banners.
4.4 Agent Banners can link through to your agency’s website or your Find an Agent profile page on the Platform, but your banner must not link to any other website.
4.5 You may not use the Agent Banner Product to promote any listings or any development project.
4.6 The Media and Advertising Terms and Conditions shall also apply to purchases of Agent Banners which will be deemed to be “Insertion Orders” for the purposes of such terms, save that to the extent of any inconsistency, these Customer Terms and Conditions will prevail.
5. Suburb Sponsorship
5.1 For the term and suburb(s) specified in your Order, the suburb sponsorship entitles you to:
(a) banners within specified pages of our desktop platform;
(b) branded sponsorship of the “Get a guide to the market” tile on the suburb profile for the sponsored suburb;
(c) branded sponsorship of the “Get a guide to the market” tile on property pages with an off-market status;
(d) branded sponsorship of the “Get a guide to the market” tile on the search results page of Buy and Sold sections in the iOS, Android and mobile platforms;
(e) Email Alert Strip Ads in the Buy channel; and
(f) consumer details that we get when a consumer requests a market guide:
(i) in your sponsored suburb, where they are received via our SR-branded lead capture form on our Platforms; or
(ii) in any suburb, where they are received via your agency-branded lead capture form on the desktop platform at smartrealty.com.au;
(g) access to a lead management centre that stores the consumer details;
(h) the ability to link to your agency- branded lead capture form on the desktop platform at smartrealty.com.au from your own website; and
(i) the ability to update a property report sent to the consumer that has completed our lead capture form with a property appraisal.
(Suburb Sponsorship)
For the avoidance of doubt, agency-branded lead capture forms are not available on the mobile platform or applications, so you will only receive consumer details from these sources if they relate to your sponsored suburb.
5.2 Suburb Sponsorship does not guarantee how many consumers will request the market guide each month, or any at all.
5.3 Suburb sponsorship is not available to individual agents.
5.4 Only one agency can acquire the Suburb sponsorship for a suburb at any one time. If a user conducts a multiple suburb or postcode search then the banner on the results page may rotate between the customers who have purchased the Suburb Sponsorship in those searched suburbs.
5.5 There is no right of first refusal on the Suburb Sponsorship.
5.6 You acknowledge that consumer details provided through Suburb Sponsorship include confidential information and personal information within the meaning of the Privacy Act 1988. You agree that you will keep consumer details confidential. You undertake that you will not disclose confidential information or personal information to any person other than your employee that agrees to keep the information confidential and where the disclosure is necessary to provide the property appraisal.
5.7 You agree to provide a property appraisal for all consumers by updating the relevant property report or contacting the consumer directly within a reasonable timeframe, being no more than 2 business days following receipt of the consumer’s details.
5.8 Property appraisals must contain an estimate of the saleable value of the property based upon comparable market research that includes at least three properties that (a) were sold within the previous 6 months, (b) are of a similar standard or condition to the property being appraised and (c) are located in the same postcode or within 5 kilometres of the relevant property. You must use your best endeavours to ensure that the properties you include in the property report meet these criteria.
5.9 You warrant that the property appraisal will be performed with the due care and skill expected of a professional experienced in performing property appraisals and in accordance with all applicable laws and regulations. You agree to indemnify us against any loss, action, claim or demand (including but not limited to damages, legal costs and expenses) arising from your breach of this warranty and any wilful, unlawful or negligent act or omission by you in the provision of the property appraisal.
5.10 If you do not comply with clauses 5.6 to 5.9, we may terminate your contract for the Suburb Sponsorship in accordance with Part A clause 7 of the General Terms and Conditions, in which case you will cease to be provided with all benefits of Suburb Sponsorship including receiving consumer details and your banner(s) and branding will be removed from the Platforms.
5.11 You acknowledge and agree that you are not an employee or agent of us and we do not act as an agent for you or the consumer in the provision of the property appraisal service.
5.12 Your agency-branded banner on the desktop Platform at smartrealty.com.au can only link to your lead capture form, your own website or your agent profile and must not include property listings. Banners displaying your agency branding on the mobile platform or applications can only link to our SR-branded lead capture form.
5.13 We will endeavour to apply your branding to the banner, our lead capture form, the property report and email notifications using your logo, photo, primary colour and contact details from Agent Admin at no cost to you. Should you choose to adopt our templated creative solution, no changes can be made. Alternatively, You may supply your own banner creative for the desktop Platform at smartrealty.com.au only, in which case you must provide it to us at least 5 working days before the scheduled Start Date (as set out in your Order) and the creative must comply with the Acceptable Use Policy and is subject to our approval.
6. Email Alert Strip Ads
6.1 The Email Alert Strip Ad Product lets you advertise your agency in property eAlerts sent to registered users of our Platform who have requested the relevant eAlert.
6.2 Only one customer may have an Email Alert Strip Ad in one suburb at any one time.
6.3 Email Alert Strip Ad can link through to your agency’s website or your Find an Agent profile page on the Platform, but your ad must not link to any other platform.
6.4 You may not use the Email Alert Strip Ad Product to promote any listings or any development project.
6.5 The Media and Advertising Terms and Conditions shall also apply to purchases of Email Alert Strip Ads in the rent section which will be deemed to be “Insertion Orders” for the purposes of such terms, save that to the extent of any inconsistency, these Customer Terms and Conditions will prevail.
7. Audience Maximiser
7.1 Audience Maximiser is a display advertisement for a property that is served on third party websites that have made their display advertisement inventory available via an open advertisement exchange. These websites are not guaranteed and are subject to change.
7.2 Audience Maximiser will advertise a property to consumers that have searched on the Platform for a property with matching attributes. The location, optimization and frequency of Audience Maximiser is subject to availability and will be determined in SR’s sole discretion. We will use best endeavours to deliver the number of impressions purchased under your Order within the period specified, but reserve the right to extend the period by up to three days.
7.3 Audience Maximiser can only be ordered with the provision of a listing identification number on a minimum of three business days’ notice before the scheduled start date in respect of an established residential property that is a Highlight Property or a Premiere Property. Any changes to the start date or listing must be requested with a minimum of three business days’ notice and the Highlight Property or Premiere Property cannot be downgraded during the campaign.
7.4 If the Highlight Property or Premiere Property advertised by Audience Maximiser:
(a) is modified, this may not be reflected in the Audience Maximiser for up to 48 hours;
(b) is sold, Audience Maximiser will be labelled “sold”;
(c) is removed from the Platform (e.g. because your subscription with SR expires or is suspended or terminated or the property is deleted or moved “off market”), Audience Maximiser will cease to be displayed.
7.5 The Media and Advertising Terms and Conditions shall also apply to purchases of Audience Maximiser which will be deemed to be “Insertion Orders” for the purposes of such terms, save that to the extent of any inconsistency, these Customer Terms and Conditions will prevail.
8. Audience Maximiser All
8.1 To be eligible for Audience Maximiser All, you must acquire or maintain either a Premiere All or Highlight All contract for the “buy” section for the Term.
8.2 If you purchase Audience Maximiser All, Audience Maximiser will automatically be applied to all your residential listings uploaded during the Term under your Depth Contract. Audience Maximiser All will not be applied to your land and rural listings unless agreed in writing with your Account Manager.
8.3 The Audience Maximiser campaign for each listing will go live 7 days after the listing is uploaded to our Platform. If there are any periods during which the ‘go live’ date will be later than 7 days, these will be communicated to you at least 14 days in advance.
8.4 Once live, the campaign will run until the specified number of Impressions has been delivered.
8.5 If within the first 72 hours of being uploaded to our Platform, a listing is deleted or moved to “Off market”, “Sold” or “Under Offer”, the Audience Maximiser campaign will not run and you will not be charged.
8.6 If later than 72 hours after being uploaded to our Platform, a listing is:
• deleted or moved to “Off market” or “Under Offer”, the Audience Maximiser campaign will run but with SR house advertisements; or
• moved to “Sold”, the Audience Maximiser campaign will run but with a “Sold” banner,
and in either case, you will be charged for Audience Maximiser on this listing.
8.7 You may have certain listings excepted from Audience Maximiser (Audience Maximiser Exceptions) as follows:
• If you have a Premiere All contract, your volume of Audience Maximiser Exceptions each Quarter will be equal to twenty per cent (20%) of the volume of unique paid upgraded listings that you uploaded to smartrealty.com.au during the prior Quarter, rounded down to the nearest whole number.
• If you have a Highlight All contract, your volume of Audience Maximiser Exceptions each Quarter will be equal to ten per cent (10%) of the volume of unique paid upgraded listings that you uploaded to smartrealty.com.au during the prior Quarter, rounded down to the nearest whole number.
8.8 An Audience Maximiser Exception can only be applied to a listing within 24 hours of upload. If an Audience Maximiser Exception is applied to a listing, an Audience Maximiser campaign will not run in respect of that listing and you will not be charged for Audience Maximiser on that listing. Each use of an Audience Maximiser Exception will reduce the number of Audience Maximiser Exceptions available for the Quarter in which it is applied.
8.9 You will be charged for each Audience Maximiser campaign on the date the campaign goes live, and no refunds will be provided.
8.10 For listings uploaded less than 7 days before the end of the Term, you will be charged when the Audience Maximiser campaign goes live and this charge will be payable in the billing cycle following the end of the Term.
9. Front Page
9.1 Front Page can be purchased in a suburb to advertise an established residential property listing in that suburb that has been upgraded to a Premiere Property under a Premiere All contract (excluding Multi-dwelling Listings) in the “Buy” channel of smartrealty.com.au.
9.2 Front Page is displayed on the home page of smartrealty.com.au and links to the property details page of the listing. When a consumer visits the homepage, they will be displayed the Front Page for a suburb included in their most recent search. Where a consumer has searched multiple suburbs, the Front Page served will be randomly selected from one of those suburbs. Where Front Page has been purchased in respect of a Project Profile (as defined in the Developer Terms and Conditions here) for the same suburb as your Front Page product, your Front Page will receive only fifty per cent of the total impressions served on visitors to the smartrealty.com.au home page that have most recently searched that suburb.
9.3 Front Page has a term of seven days. During this time:
(a) Front Page cannot be transferred to a different advertisement;
(b) the first image of the listing must not be changed;
(c) if the listing is transferred to the “sold” section of smartrealty.com.au or classified “under offer”, Front Page will continue to be provided for the Term, but it may be labelled “sold” or “under offer”;
(d) the listing must not be removed from smartrealty.com.au or downgraded below a Premiere Property (or Front Page will cease to be provided and you will not be entitled to a refund or replacement); or
(e) Front Page can only be ordered with the provision of a listing identification number on a minimum of 3 business days’ notice.
9.4 Purchase of Front Page will not confer a first right of refusal on future purchases.
9.5 There are limited Front Page products for purchase and purchase is subject to availability and our purchase rules. You may only purchase Front Page for a particular suburb for a maximum of four consecutive weeks or a maximum of six weeks out of a twelve week period. However, the same listing can only be displayed for a Front Page booking for a maximum of two consecutive weeks and provided it has not been displayed as a Front Page for at least 14 days prior.
9.6 Your first image in your listing will be used as the Front Page image by default. Your image must comply with the Acceptable Use Policy located at smartrealty.com.au/terms, the Media and Advertising Terms and Conditions and our directions and guidance from time to time (including on the Agent Marketing Centre). SR retains full discretion as to whether an image is acceptable for Front Page.
10. Agent Elevate
10.1 Agent Elevate is a subscription product to uplift an individual agent profile (Individual Profile) on our site.
10.2 The person who purchases the product (Subscriber) can be either the agent whose Individual Profile will be uplifted (Agent) or someone who is authorised to act on behalf of the Agent.
10.3 An Agent Elevate subscription will continue month-to-month, provided that the Subscriber (or the Agent) may terminate the subscription at any time by notifying us using the cancellation link in our emails, in which case the subscription will continue until the end of the Subscriber’s current billing cycle. We do not provide refunds for cancellations part way through a billing cycle.
10.4 The monthly subscription fee will be charged on sign up and around the same time each subsequent month until the subscription is terminated. If we are not able to take a payment after 3 attempts, the subscription will automatically terminate and we will notify the Subscriber via email.
10.5 The Agent Elevate product has the following features:
(a) an uplifted Agent profile with more prominent personal branding, an interactive map highlighting current and past sales, performance by suburb and performance by property type;
(b) display of the Agent’s photograph in the photograph carousel in the Buy Section and Sold Section for that Agent’s listings. For listings with dual agents, both agents will appear in the carousel if both agents hold an active Agent Elevate subscription; and
(c) a monthly performance report emailed to the Agent at the end of every month during the term of a subscription (unless a subscription is terminated in the first 14 days) and a final report upon termination of a subscription.
10.6 The Agent Elevate subscription is attached to an Agent’s active Individual Profile. If an Agent has multiple profiles, all profiles will be uplifted. If an Agent’s Individual Profile is deleted, the Agent Elevate subscription will terminate automatically. If an agency is suspended, any affiliated Agent Elevate profiles and the display of Agent photographs in the photograph carousels will be unavailable for the duration of the suspension. We will not provide a reimbursement, refund or credit for such suspensions.
10.7 The features of the Agent Elevate product (including price) are subject to change from time to time, but we will give the Subscriber at least 30 days’ written notice via email before any changes take effect.
11. General provisions applying to all Non-depth Products
11.1 You may not cancel or modify a Non-depth Product Order once submitted, without our agreement. No refunds will be given once the Order is submitted.
11.2 No Non-depth Products will be re-supplied or their durations extended where you have failed to comply with the terms of your Agreement.
11.3 The purchase of a Non-depth Product for a term does not confer any right of first refusal in respect of further terms, unless we specifically agree.
Part E: Miscellaneous Features
1. Terms applying to purchase of advertising on smartrealty.com.au
Eligibility for smartrealty.com.au
1.1 Generally speaking all smartrealty.com.au customers may purchase a listing on smartrealty.com.au, however:
(a) we may limit the eligible categories of listings for smartrealty.com.au, for example by reference to upgrade status on smartrealty.com.au, the type of property and/or the value of the property; and
(b) we may also limit eligibility for certain customers, for example if there is a failure to meet any service level agreements we require in relation to following up leads obtained via smartrealty.com.au.
1.2 The limitations on eligibility above will be communicated from time to time.
Display of listings on myfun.com
1.3 The priority of listings in search results will depend on how users of smartrealty.com.au choose to sort their results (e.g. newest to oldest listing, lowest to highest price etc). The default sort priority is at our discretion.
1.4 The duration of the listing on myfun.com will be for so long as the listing is an active listing on smartrealty.com.au, unless some shorter duration is specified in your Order for the smartrealty.com.au listing. The duration specified on your Order runs uninterrupted from the start date of the listing, despite any instruction to postpone publication for any period of time.
1.6 By purchasing any smartrealty.com.au listing Product, you consent to us amending your listing as it appears on smartrealty.com.au where we consider (in our absolute discretion) it is necessary to comply with international law.
1.7 Your listing may also be syndicated to other international property websites with whom smartrealty.com.au has entered into syndication arrangements, for greater audience reach and exposure.
The Residential Terms and Conditions also apply to smartrealty.com.au listings
1.8 The terms and conditions set out above also apply to your listings on myfun.com, unless the context requires otherwise.
1.9 Note that as well as the limitations on liability set out in the above terms and conditions, to the extent permitted by law we specifically disclaim any liability in relation to inaccuracies in translation, miscommunications in the liaison services or outages in the site, for any reason.
Fees and billing
1.10 The fees for smartrealty.com.au will be specified in your Order. Fees are payable in accordance with the payment provisions of clause 10 of Part A of the terms and conditions above.
1.11 Without limiting clause 1.10 above, we reserve the right to change the fees at any time. You will be notified thirty days in advance of any changes to fees and may terminate prior to these changes taking effect if you consider these will cause you a material detriment.
1.12 No refunds will be given once your order is made.
2. Terms applying to customers of Inspect Real Estate (IRE Button Terms)
2.1 If you are a customer of IRE Pty Ltd (known as Inspect Real Estate or IRE), you may be permitted to include an inspection booking button on you property listing on smartrealty.com.au (Button).
2.2 We reserve the right to determine whether a customer meets our eligibility criteria to include the Button on their listing, as communicated and amended from time to time.
2.3 You will remain subject to the applicable IRE terms communicated to you by IRE at all times.
2.4 We may remove the Button if you fail to comply with this Agreement or the IRE Button Terms, if the Button compromises security on our Platform, at the request of IRE or if our arrangement with IRE ends.
2.5 In consideration of us permitting you to include the Button on your listing, you agree that IRE may provide us with:
(a) your aggregated and de-identified data to us in reports at any time; and
(b) the enquiry data of applicants using the Button on our Platform, together with associated data, including but not limited to the applicant’s status (being either booked, attended, applied, leased, sold or successful/ unsuccessful tenant or buyer) and any personal data contained therein will be treated in accordance with our Privacy Policy.
2.6 If you do not agree to these terms, your sole option is to instruct IRE and SR to remove the Button linking to the Solution from your property details pages on smartrealty.com.au in accordance with the notice provisions in your IRE agreement and this Agreement.
2.7 You warrant that you will only use applicant details received from IRE via the Button on smartrealty.com.au for the purpose of responding to the relevant property enquiry and for no other purpose (including subsequent marketing of other properties).
2.8 You warrant that any email or SMS that you send to an applicant that has applied via the Button on our Platform or that you modify to be sent to the applicant by IRE on your behalf, will comply with the Spam Act 2003 (Cth), including, but not limited to including the sender identification, contact phone number and a simple way to unsubscribe from further communications. Once an applicant has unsubscribed from any communication, you warrant that you will action any unsubscribe request within 5 business days by ceasing all future electronic communications with such applicant.
2.9 You warrant that you will attend any open for inspection you advertise as available for booking through the IRE Button on a property details page on our Platform, unless otherwise communicated to the applicant with at least 24 hours’ notice.