Last Updated: 08/11/2022
- Users acknowledge and agree that it is each User’s responsibility to enter into separate contractual agreements with any Referred Clients. The risks involved in any goods or services received or performed in connection with a Referral are not covered by this agreement.
- In order to use most of the functionality of the Platform, all Users are required to sign-up, register and receive an account through the Platform (an Account).
- You will be responsible for managing the content displayed in your Account, including that it is accurate, up-to-date and not misleading. Harvey Pence Pty Ltd does not verify or moderate the information contained in any Account.
- As part of the Account registration process and as part of your continued use of the Platform, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, and other information as determined by Harvey Pence Pty Ltd from time to time.
- Once you complete the registration process, Harvey Pence Pty Ltd may, in its absolute discretion, choose to accept you as a registered User within the Platform and provide you with an Account.
- Harvey Pence Pty Ltd reserves the right to contact you about any concerning behaviour by you, or to seek a resolution with you.
- Harvey Pence Pty Ltd may, in its absolute discretion, suspend or cancel your Account for any reason, including for any failure to comply with this agreement.
- USER OBLIGATIONS
As a User, you agree:
- to not share your Account with any other person and that any use of your Account by any other person is strictly prohibited. You must immediately notify Harvey Pence Pty Ltd of any unauthorised use of your Account or email, or any other breach or potential breach of the Platform's security;
- to not use the Platform for any purpose other than for the purpose of making arrangements to provide or receive services, including by not using the Platform:
- 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
- in connection with any commercial or money making or other promotional or marketing endeavours except those that are endorsed herein, or as approved in writing by Harvey Pence Pty Ltd;
- not to act in any way that may harm the reputation of Harvey Pence Pty Ltd or associated or interested parties or do anything at all contrary to the interests of Harvey Pence Pty Ltd or the Platform;
- not to make any automated use of the Platform and you must not copy, reproduce, translate, adapt, vary or modify the Platform without the express written consent of Harvey Pence Pty Ltd;
- that Harvey Pence Pty Ltd may change any features of the Platform or Services offered through the Platform at any time without notice to you;
- that information given to you through the Platform, by Harvey Pence Pty Ltd or anyone else, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
- that Harvey Pence Pty Ltd may cancel your account at any time if it considers, in its absolute discretion, that you are in breach or are likely to breach this clause
- UPLOADED DATA
- DATA PROTECTION, PRIVACY AND DATA OWNERSHIP
- The Client or the relevant User (as the case may be) will retain ownership of any information, materials data or other content that it uploads to the Platform the (Uploaded Data).
- Harvey Pence Pty Ltd will acquire no rights of ownership in the Uploaded Data under this agreement. However, the Client grants Harvey Pence Pty Ltd the right to use the Uploaded Data for the purposes of this agreement.
- While every precaution within Harvey Pence Pty Ltd control will be taken to ensure security of the Uploaded Data, the Client acknowledges and agrees that there are inherent risks to data security when operating thePlatform, as well as various other opportunities for risks beyond Harvey Pence Pty Ltd’s control to eventuate in relation to the Uploaded Data. Harvey Pence Pty Ltd does not guarantee the security of the Uploaded Data and cannot guarantee that security issues will not arise in relation to the Platform.
- The Client or Harvey Pence Pty Ltd (as the case may be) 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 the Platform, Uploaded Data or other compromise of the security, confidentiality, or integrity of the Platform or Uploaded Data (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.
By providing Uploaded Data, you represent and warrant that:
- you are authorised to provide the Uploaded Data
- the Uploaded Data is accurate and true at the time it is provided;
- any Uploaded Data which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
- the Uploaded Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
- the Uploaded Data is not "passing off" of any product or service and does not constitute unfair competition;
- the Uploaded Data 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;
- the Uploaded Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Platform or any network or system; and
- the Uploaded Data does not breach or infringe any applicable laws.
- You indemnify Harvey Pence Pty Ltd against all damages, losses, costs and expenses incurred by Harvey Pence Pty Ltd arising out of any third party claim that your Uploaded Data infringes any third party's Intellectual Property Rights or privacy.
- Harvey Pence Pty Ltd acts as a passive conduit for the online distribution of Uploaded Data and has no obligation to screen Uploaded Data in advance of it being transmitted. However, Harvey Pence Pty Ltd may, in its absolute discretion, review and remove any Uploaded Data at any time without giving any explanation or justification for removing the Uploaded Data.
- You agree that you are responsible for keeping and maintaining records of your Uploaded Data.
Harvey Pence Pty Ltd does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with your use of the Platform. You should take your own precautions to ensure that the process you employ to access the Platform does not expose you to the risk of viruses, malicious computer code or other forms of interference.
- REFUNDS, SERVICE INTERRUPTIONS AND CANCELLATIONS
Harvey Pence Pty Ltd will have no liability or obligation to you if:
- for whatever reason, including technical faults, the services listed cannot be performed or completed,
and you will not be entitled to any compensation from Harvey Pence Pty Ltd.
- SERVICE LIMITATIONS
The Platform is made available to you strictly on an 'as is' basis. Without limitation, you acknowledge and agree that Harvey Pence Pty Ltd cannot and does not represent, warrant or guarantee that:
- the Platform will be free from errors or defects;
- the Platform will be accessible at all times;
- messages sent through the Platform will be delivered promptly, or delivered at all;
- information you receive or supply through the Platform will be secure or confidential; or
- any information provided through the Platform is accurate or true.
- DISPUTES BETWEEN USERS
- Users must direct any complaint relating to Mortgage Broker to that User. Users must take all reasonable steps to resolve any dispute with another User with that User.
- Any costs you incur in relation to a complaint or dispute will be your responsibility.
- Harvey Pence Pty Ltd has the option to 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.
- Harvey Pence Pty Ltd reserves the right to hold funds in relation to a dispute until the dispute is resolved by the relevant parties or by a mediator or arbitrator.
- If you have a dispute with Harvey Pence Pty Ltd, you agree to notify us first and enter into discussion, mediation or arbitration with us for a minimum of a 120-day period before pursuing any other proceedings.
- Notwithstanding any other provision of this clause 15, you or Harvey Pence Pty Ltd may at any time cancel your Account or discontinue your use of the Platform.
- (Limitation of liability) To the maximum extent permitted by applicable law, Harvey Pence Pty Ltd excludes completely all liability to 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 Platform or its use or any services provided by any Referrer. This includes the transmission of any computer virus.
- (Disclaimer) All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded.
- (Consumer law) 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, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
- (Indemnity) You agree to indemnify Harvey Pence Pty Ltd and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from your or your representatives':
- breach of any term of this agreement;
- use of any Referral Services;
- use of the Platform; or
- your provision or receipt of services from another User.
- (Consequential loss) To the maximum extent permitted by law, under no circumstances will Harvey Pence Pty Ltd be liable 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 Platform, this agreement or their subject matter, or any services provided by any User (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
You agree that:
- no information owned by Harvey Pence Pty Ltd, including system operations, documents, marketing strategies, staff information and client information, may be disclosed or made available to any third parties; and
- all communications involving the details of other Users on this Platform are confidential, and must be kept as such by you and must not be distributed nor disclosed to any third party.
- Harvey Pence Pty Ltd reserves the right to terminate a User's access to any or all of the Platform at any time without notice, for any reason.
- Users may terminate their membership on Harvey Pence Pty Ltd at any time by using the Platform's functionality where such functionality is available. Where such functionality is not available, Harvey Pence Pty Ltd will effect such termination within a reasonable time after receiving written notice from the User.
- Notwithstanding termination or expiry of your membership or this agreement, the provisions of Part 1 and any other provision which by its nature would reasonably be expected to be complied with after termination or expiry, will continue to apply.
- RECORD / AUDIT
To the extent permitted by law, Harvey Pence Pty Ltd reserves the right to keep all records of any and all transactions and communications made through this Platform between you and other Clients (including conversations, 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 Harvey Pence Pty Ltd.
- A notice or other communication to a party under this agreement must be:
- in writing and in English; and
- delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
- Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
- 24 hours after the email was sent; or
- when replied to by the other party,
whichever is earlier.
- GOVERNING LAW AND 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.
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.
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.
- 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.
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.
- 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.
- (singular and plural) words in the singular includes the plural (and vice versa);
- (currency) a reference to $; or "dollar" is to Australian currency;
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (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;
- (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;
- (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;
- (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;
- (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word "includes" and similar words in any form is not a word of limitation; and
- (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.