Terms & Conditions

1. Definitions

“Administrative Office” means an office that serves a purely administrative function for an Agency Group.

“Agency Office” means a physical office from which the main business that is conducted is real estate agency services.

“Agency Group” means a group of Agency Offices (and if applicable an Administrative Office) 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 https://www.e-kodi.com/ekodifront.

“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.

“Feature Property” has the meaning in clause 1.1 of Part C 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.

“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.

“Order” has the meaning in clause 2(b) of Part A of these Customer Terms.

“Platform” means the realestate.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 https://www.e-kodi.com/ and pages with rental properties.

“Sold Section” means the section of the Platform for listings of properties that have sold, located at realestate.com.au/sold.

“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 Ekodi Ltd; and

“You” means you, the legal entity that owns the Agency Office, Landlord or Tenant

2. Your Agreement with us

Your agreement with us (Agreement) consists of:

(a) these Customer Terms and Conditions (as published at realestate.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 Dashboard (your Order); and

(c) the terms and conditions of our Security Policy, Privacy Policy, Platform Terms of Use and the Acceptable Use Policy applicable to your Subscription, as published at realestate.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 3 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, provided that if the variation would result in a material change to either party’s rights or obligations and, for that reason, may cause you material detriment, we will give you at least 30 days’ written notice via email before the variation is to take effect and you may terminate this Agreement during this period if you consider the variation will cause you material detriment. For variations that do not result in a material change to either party’s rights or obligations or would not cause you material detriment, we will give you at least 30 days’ written notice (via email or Agent Dashboard) before the variation is to take effect and you may not terminate this Agreement during this period under this clause 5(d);

(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, provided that if the variation or discontinuation would result in a material change to your rights and, for that reason, may cause you material detriment, we will give you at least 30 days’ written notice via email before the variation or discontinuation is to take effect and you may terminate this Agreement during this period if you consider the change will cause you material detriment. For variations or discontinuations that do not result in a material change to your rights or would not cause you material detriment, we will give you at least 30 days’ written notice (via email or Agent Dashboard) before the variation or discontinuation is to take effect and you may not terminate during this period under this clause 5(f);

(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 , Security 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 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;

(g) you will comply with any guidelines and codes issued by your local and national body for your type of organisation;

(h) 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;

(i) 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;

(j) 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;

(k) you will not allow anyone else to use your Subscription to list on the Platform, including but not limited to:

(i) a person working in another Agency Office;

(ii) another Agency Office;

(iii) an Administrative Office in your Agency Group; or

(iv) any individual that is not using your Subscription in the course of their employment for your Agency Office; and

(m) 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 EKODI 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 EKODI.

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 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.

12. Limitation of liability and indemnity

12.1 Subject to clause 12.4 below, 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 you have provided to us. It is your sole responsibility to ensure that you provide us with your current contact email address and/or facsimile number.

14.2 All notices from you to us (including termination notices) must be sent:

(a) by email to support@e-kodi.com

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. Claims of Copyright Infringement.

We respect the intellectual property rights of others, and asks that everyone using the Services do the same. Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify ekodi's copyright agent, by providing the following information:

a. Identification of the copyrighted work that you claim has been infringed;

b. Identification of the material that you claim is infringing and needs to be removed, including a description of where it is located on the Services so that the copyright agent can locate it;

c. Your address, telephone number, and, if available, e-mail address, so that the copyright agent may contact you about your complaint; and

d. A signed statement that the above information is accurate; that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf in this situation.

Notices of copyright infringement claims should be sent as follows:

a. By mail:
Ekodi Limited, Inc.
Lakehub Space Kisumu,
Along Achieng Oneko Road,
Kisumu

Attention: Copyright Agent

b. By e-mail: support@e-kodi.com
If you give notice of copyright infringement by text e-mail, Ekodi's copyright agent may begin investigating the alleged copyright infringement; however, we must receive your signed statement by mail or as an attachment to your e-mail before we are required to take any action.

17.Governing Law

17.1 The laws of the Republic of Kenya govern this Agreement.

- Updated March 2017