Terms

Updated: 19/10/2021

Welcome

This service is offered by Harvey Pence Pty Ltd ACN 622 517 015 (“Harvey Pence”, “Broker Pages”, “we”, “us” or “our”) in collaboration with third parties. To use our Services you must agree to be bound by these Terms (the “Terms”) and by our Privacy Policy. This agreement governs the transmission, receipt and use of the Services, and the terms of any amounts payable for use of the Services. If you object to anything in these Terms or the Privacy Policy, you are prohibited from using the Services.

These Terms are a binding contract between you and us. We may change, modify, add or remove portions of these Terms and Privacy Policy, at any time. It is your responsibility to check these periodically for changes. Your continued use of the Services following the posting of changes will mean that you accept and agree to the changes.

If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at: hello@brokerpages.com.au or Harvey Pence, PO Box 628, Double Bay, NSW 1360, Australia.

What do I need to know to understand this agreement?

The key terms to know when reading this agreement are:



TERMS AND CONDITIONS

1. DEFINITIONS

Words and phrases used in this agreement have the following meaning:

Term	Meaning
Client	means a person that uses our Services but does not pay any fees to us. This is typically a member of the general public using our Services for personal assistance.
Client Data	means any personal information, identifiable or otherwise provided by a Client or a Customer about a Client.
Commission	means the amount payable by the Customer to us for a Referral (where applicable)
Broker Pages	which is the online directory for mortgage brokers to showcase themselves, generate leads and enquiries from Clients
Fees	means all amounts payable under this agreement, including the Setup Costs, Subscription Fees and Commissions.
Subscription Fees	means the amount payable by the Customer to us on a recurring basis as, set out when you the customer signs up for the Services
Referral	means the information sent from a Referrer to a Referee, with the intent of the Referee providing services to the Client.
Referral Experiences	means the software developed and provided by us to share Referrals between Referrers and the Referee, and all related services performed by us.
Referee	means the entity entering into this agreement with the intent of using the Referral Experiences and receiving Referrals.
Customer Data	means information pertaining to a Customer including; contact information, imagery, logos, banners, business names, trademarks and any other confidential information.
Referrer	means any person or business that sends a Referral to a Referee through the Referral Experiences.
Referral Partner	means a Referrer that has a pre-existing relationship with a Referee pre-dating this agreement
Referral Platform	means the Harvey Pence Referral Platform available at harveypence.com
Customer Services	means the services that the Customer is licensed, qualified and otherwise capable of performing for Clients.
Setup Costs	means that amount payable for setting up the Services

2. LICENCE TO SERVICES

1. We grant the User a licence to use the Services. The license is revocable, non-exclusive, non-transferrable, royalty free and worldwide.
2. Nothing in this agreement transfers ownership of the Services, or the intellectual property rights in the Services (including the underlying technology), to the User. All such Intellectual Property Rights will be solely and exclusively owned by us.
3. Nothing in this agreement prevents us from developing Services for other Users, using the underlying technology, including within the industry that they operate.
4. Without the express prior written consent of us, the User must not, and must not attempt to or permit or instruct any third party to, make any copy, reproduction, translation, adaptation, variation or modification of the Services including its code or other underlying technology.

3. SERVICES PROVIDED TO CLIENTS

The Customer represents and warrants that:

1. it is able to competently perform the Customer Services to a professional standard;
2. it is fully licensed, accredited and otherwise authorised in accordance with all applicable laws to perform the Customer Services;
3. it will provide the Customer Services to Clients:
   i) using suitably qualified and trained personnel exercising due care and skill in a professional, efficient, diligent and safe manner, and to the best industry standards; and
   ii) in compliance with all applicable laws.
4. It is the Customer’s responsibility to enter into separate contractual agreements with each Client which cover all risks applicable to the goods or services that will be provided to that Client by the Customer. The risks involved in any goods or services provided to a Client are not covered by this agreement.
5. The Customer acknowledges and agrees that we will not be liable for any act or omission (including any misrepresentation, negligence or misconduct) of the Customer in its dealings with Clients.

4. PAYMENTS

SETUP COSTS

1. The Customer must pay any applicable Setup Costs.
2. If applicable, the Customer will not be provided with any Services until it pays the Setup Costs.
3. The Setup Costs are non-refundable as they cover our genuine efforts in setting up the Services.

SUBSCRIPTION FEES

1. The Customer must pay any applicable Subscription Fees.
2. If applicable, the Subscription Fee is charged either monthly or annually and billed in advance.
3. The Subscription Fees are non-refundable as they cover our genuine efforts in provide and develop our Services.
4. If the parties agree that the Subscription Fees will be paid by direct debit, the Customer must sign any further authorisations as may be required to give effect to the direct debits.

COMMISSIONS

1. The Customer must pay any applicable Commission.
2. The Commissions will be calculated in accordance with the defined commission schedule.
3. Particulars of the details of any payable commission will be agreed outside the Terms.

GENERAL

1. The Customer acknowledges that GST will be calculated and charged where applicable to any Fees payable under this agreement.
2. We may introduce new charges at any time, upon at least 30 days’ written notice, which may be provided in email.
3. All invoices issued under this agreement are to be paid within 5 Business Days.

5. DATA MANAGEMENT

DATA PROVISION & OWNERSHIP

1. We will display Services offered by prospective Customers from time to time. Where practicable, we will obtain information from publicly available sources and offer prospective Customers to Claim their Services.
2. When Services are Claimed, the Customer must provide all information and images required by us to develop the Services (where required), including contact details, headshots, pricing on the products they offer, logos, branding requirements, contact information and any other information required by us from time to time (Customer Data).
3. In addition to Customer Data, a User using our Services may provide information relating to them or their Clients, including their contact details, business or personal requirements and other information (Client Data).
4. The User is responsible for ensuring that all Customer Data and Client Data that it provides to us is accurate, up-to-date and not misleading.
5. We do not verify or moderate any Customer Data or Client Data.
6. Unless otherwise stated, we retain ownership of the Customer Data and any Client Data.

SECURITY BREACHES

1. The User agrees to our Privacy Policy, which can be accessed at https://brokerpages.com.au/privacy.
2. We will take all reasonable steps within its control to ensure the security of the Customer Data and Client Data. The User acknowledges and agrees that there are inherent risks to data security when operating the Services, as well as various other opportunities for loss and damage beyond our control to eventuate in relation to the Customer Data or Client Data.
3. Each party will immediately notify the other party after learning of any potential, actual or suspected loss, misappropriation or unauthorized access to, or disclosure or use of Customer Data, Client Data or Services (collectively, “Security Breaches”). The parties will take reasonable steps to limit any potential, actual or suspected Security Breach; and co-operate in the investigation of each potential, actual or suspected Security Breach.
4. The Customer will be solely responsible for any obligations that may arise in relation to any notifiable data breaches and the Office of the Australian Information Commission.

DATA WARRANTIES

The Customer represents and warrants that:

1. the Customer owns all Intellectual Property Rights in the Customer Data, and Client Data that it provides to us, or is otherwise authorised to provide the Customer Data and relevant Client Data to us;
2. the Customer Data and Client Data it provides to us does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
3. the Customer Data and Client Data it provides to us is accurate and true at the time it is provided;
4. the Customer Data and Client Data it provides is not "passing off" of any product or service and does not constitute unfair competition or otherwise breach the provisions of the Australian Consumer Law;
5. the Customer Data and Client Data it provides does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Services or any network or system; and
6. the Customer Data and Client Data it provides does not breach or infringe any applicable laws.

6. CUSTOMER ACKNOWLEDGEMENTS

The Customer agrees:

1. all communications involving the details of the Services are confidential and must not be distributed nor disclosed to any third party;
2. not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user;
3. to immediately notify us of any unauthorised use of the Customers account, password or email, or any other breach or potential breach of the Services security;
4. not to use the Services for any purpose other than for the purpose of making arrangements to provide or receive services, including by not using the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes); and
5. not to act in any way that may harm the reputation of us or bring us into disrepute.

7. SUPPORT & UPDATES

1. We may offer additional features, functionalities and services including in relation to the Services and operational assistance, subject to additional Fees.
2. We will correct any errors, bugs or defects in the Services which arise to the best of our ability.
3. If any errors, bugs or defects arise that do not significantly impact the Services or arise a result of the misuse of the Services, we will use its best endeavours to correct those errors, bugs or defects in a timely manner but will not be under any obligation to do so.

8. DISPUTES

1. The Customer must deal with any complaints, issues or disputes with any Customer or Client at its own cost and without assistance from us.
2. The Customer must take all reasonable steps to resolve complaints, issues or disputes in a timely manner and in good faith.
3. We may appoint an independent mediator or arbitrator if needed. The cost of any mediator or arbitrator must be shared equally between each of the parties to the dispute (where we will in no way be a party to the dispute).

9. LIABILITY

1. (Introduction service) We provides Services that help our Customers succeed more by helping them get more Clients. We do not have any obligations or liabilities to, and is not a party to, any contract between any Customers or Clients
2. (Service As Is) The Services are made available to the User strictly on an 'as is' basis. We do not represent, warrant or guarantee that the Services will be free from errors or defects, the Services will be accessible at all times, or that information transmitted through the Services will be secure or confidential.
3. (Exclusion of liability) To the maximum extent permitted by applicable law, we limits its liability in aggregate of all claims made by any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Services to the amount paid for the relevant Services giving rise to the relevant liability. This includes the transmission of any computer virus.
4. (Disclaimer) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Referee may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the Referral Experiences. All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded.
5. (Indemnity) The Customer and Client indemnifies us and its employees, contractors and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from the Referee’s or its representatives’ material breach of this agreement; or performance of services for a Client.
6. (Consequential loss) To the maximum extent permitted by law, under no circumstances will either party be liable to the other party for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Services or this agreement (except to the extent this liability cannot be excluded under the ACL).

10. TERMINATION

1. Customers may terminate this agreement by giving 30 days’ written notice.
2. The termination date will be at the end of the current billing cycle.
3. The Customers access to the Services will be revoked on the termination date.
4. If this agreement is terminated by the Customer, the Customer will be liable to pay: the Subscription Fee for the then current billing period only; and the Commissions for any applicable Referrals made prior to, or within 2 months after, the termination date.
5. If this agreement is terminated by us, without limiting or otherwise affecting any rights or remedies that may be available to us at law or otherwise in equity, no further Fees will be payable to us.
6. Any clause which by its nature would be expected to survive termination of this agreement shall survive termination of this agreement.

11. GENERAL

1. Records & Audit - To the extent permitted by law, we reserve the right to keep all records of any and all Services (including conversations, user posts, job request bids, comments, feedback, cookies, and I.P. address information) for administration purposes and also holds the right to produce these records in the event of any legal dispute involving us.
2. Governing Law & Jurisdiction - This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
3. Waver - No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
4. Severance - Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
5. Joint and Several Liability - An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
6. Assignment - A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
7. Entire Agreement - This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

12. INTERPRETATION

1. (singular and plural) words in the singular includes the plural (and vice versa);
2. (currency) a reference to $; or "dollar" is to Australian currency;
3. (gender) words indicating a gender includes the corresponding words of any other gender;
4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
5. (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
6. (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
7. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
8. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
10. (includes) the word "includes" and similar words in any form is not a word of limitation; and
11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.