Terms of Use Agreement

1. Definitions

Agreement means these terms of use, the NHG privacy policy, and any other terms incorporated by reference into these terms of use, in each case as amended from time to time.

Contributions means your information including data, text, video, still images, audio or other material that NHG has permitted you to host, share, publish, post, store or upload on the Website as permitted under this Agreement including but not limited to links to third party content.

Other User Contributions means information including data, text, video, still images, audio or other material that NHG has permitted Users other than you to host, share, publish, post, store or upload on the Website including but not limited to links to third party content.

NHG, We, Us or Our means New Homes Guide Pty. Ltd.

NHG Clients means a company or business (including without limitation building and construction companies, developers, architects and building designers) who has entered into an agreement to pay by subscription, to access the NHG Website for the purposes of uploading and displaying images and information regarding the marketing of new homes, developments and house and land packages.

Third Party Content means content published on the Websites by third parties including Contributions and Other User Contributions.

User means a visitor to the Website.

Website/s means any website operated by NHG which may incorporate social media tools, sign on mechanisms and interactive platforms including but not limited to Facebook; Twitter, Instagram, Google + and Pinterest.

2. Disclaimer

2.1 Every effort has been made to ensure that the information contained in the Website is accurate. Notwithstanding the foregoing, all such information is to be used as a guide only and should not be treated as a substitute for obtaining appropriate advice or making prudent enquiries. The Website is provided solely on the basis that users will be responsible for making their own assessment as to the suitability of the Website, the Third Party Content and any third party providers accessed via the Website.

2.2 The Website contains links to Third Party Content and links to third party sites. We accept no responsibility for the accuracy of information sourced from linked sites or for Third Party Content. Reliance by the User on Third Party Content is solely at the User’s own risk.

2.3 Information contained in or generated by this Website does not constitute, and is not intended to be used as, legal advice. NHG accepts no responsibility for a misinterpretation by the user as to the legal implications of information contained in or generated by the Website, and independent legal and financial advice should always be sought where appropriate.

2.4 The Website may also contain or provide information regarding or linking to certain applications and services provided by NHG Clients and Users.

2.5 NHG make no guarantee, representation or warranty of any kinds as to the quality, competency, value, reliability, responsiveness, accuracy or completeness of any information on or generated by the Website or the results obtained therefrom. NHG, including Our directors, officers and agents, disclaims all liability and responsibility for any direct or indirect loss or damage which may be suffered by any recipient through relying on anything contained in or omitted from Our Websites or publications including but not limited to the Third Party Content.

2.6 You assume full responsibility for your use of any Third Party Content and NHG is not responsible or liable for any loss or damage resulting from your use of reliance on any Third Party Content.

3. Use of the Websites by Consumers

3.1 This Website has been developed or is otherwise owned by NHG

3.2 This Agreement, along with Our Privacy Policy and other notices on Our Websites, form the basis on which you may access and use Our Websites

3.3 We reserve the right to change any or all of Our terms of use or other conditions for using Our Websites at any time by publishing the new terms or conditions on Our Websites. Your use of Our Websites constitutes your acceptance of those terms. Should you object to any of Our terms of use or other notices on Our websites your sole option is to immediately cease your use of the Websites.

3.4 Information on Our Websites and in any newhomesguide.com.au publication should not be regarded as a substitute for professional legal, financial, real estate, building, construction or design advice.

3.5 Enquiries and contacts to NHG Clients should be genuine enquiries regarding the homes displayed on the Website.

4. Your Personal Information

4.1 If you request information from Us via Our Website to provide you with information, you must enter accurate, current and complete information about you including personally identifying information such as your name, phone number and email address (“Personal Information”).

4.2 You acknowledge and consent that this Personal Information will be provided to Us in order for Us to supply the services requested. The types of Personal Information that We collect, the purposes for which We collect your Personal Information and the way such Personal Information is stored or disclosed is covered by the Privacy Policy.

4.3 You consent to receive e-mails from Us, which may include commercial e-mails provided such e-mails are in accordance with the Privacy Policy.

5. Restrictions on use of Websites

5.1 In accessing or using Our Websites you agree that you will not:
(a) use any automated device, software, process or means to access, retrieve, scrape, or index Our Websites or any content on Our Websites;
(b) use any device, software, process or means to interfere or attempt to interfere with the proper working on Our Websites;
(c) undertake any action that will impose a burden or make excessive traffic demands on Our infrastructure that we deem, in Our sole discretion to be unreasonable or disproportionate site usage;
(d) use any content on, or index Our Websites for purposes of constructing or populating a searchable database of properties or competing with us in any manner;
(e) transmit spam, chain letters, contests, junk email, surveys, or other mass messaging, whether commercial in nature or not;
(f) use Our Websites or any content from Our Websites in any manner which is, in Our sole discretion, not reasonable and / or not for the purpose which it is made available;
(g) violate the rights of any person, including copyright, trade secret, privacy right, or any other intellectual property or proprietary right;
(h) pose as any person or entity or attempt to solicit money, passwords or personal information from any person;
(i) act in violation of any Term of Use or other condition posed by us or any applicable law;
(j) reproduce, republish, retransmit, modify, adapt, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit Our Websites or any content on Our Websites, except as expressly authorised by us; or
(k) transmit or attempt to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature.

5.2 We reserve the right to exercise whatever means we deem necessary to prevent unauthorised access to or use of Our Websites, including, but not limited to, instituting technological barriers, or reporting your conduct to any person or entity.

6. Intellectual Property

6.1 Unless otherwise specified, the Website, all content, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software (collectively "the Materials" ) contained on the Website are Our property, or the property of NHG Clients or other suppliers, and are protected by copyright, trade mark and other relevant intellectual property rights laws.

6.2 Except as expressly authorised by Us in writing, or to the extent expressly permitted by law, you may not modify, download, reproduce, copy, sell, post, transmit, create derivative works from, publicly perform, publicly display, distribute or otherwise use the Websites or the Materials for any other purpose.

7. Third Party Links and Advertising

7.1 Our Websites often include advertisements, hyperlinks and pointers to websites operated by third parties. Links to third party websites include, without limitation, links to the websites of some of Our real estate agency customers. Those third party websites do not form part of Our Websites and are not under the control of or the responsibility of NHG.

7.2 When you link to those websites you leave Our Website and do so entirely at your own risk.

7.3 NHG makes no warranty as to the accuracy or reliability of the information contained on any third party websites, and NHG, its directors, officers and agents disclaim all liability and responsibility for any direct or indirect loss or damage which may be suffered by you through relying on anything contained on or omitted from such third party websites.

7.4 A display of advertising does not imply an endorsement or recommendation by NHG.

8. Contributions

8.1 For the purposes of this clause 8 [Contributions], "You" or "you" means the individual making Contributions to NHG's Websites.

8.2 NHG may permit you to make Contributions to its Websites.

8.3 You retain sole responsibility and accept all liability for all Contributions you make to any NHG Website.

8.4 NHG disclaims any and all liability in connection with Contributions.

8.5 NHG assumes no responsibility for monitoring any Contributions.

8.6 NHG does not in any way endorse the information in Contributions including any opinion, recommendation or advice expressed.

8.7 NHG is under no obligation to treat your Contributions as confidential information.

8.8 NHG may at any time, without liability to you, remove, alter or disable access to any or all of your Contributions in its sole discretion without prior notice to you. Without limiting the previous sentence, NHG may remove or disable access to any or all your Contributions if it considers that:
(a) those Contributions are in breach of any law or regulation;
(b) those Contributions infringe the intellectual property rights of any third party;
(c) it is required to do so by a regulatory body or any relevant authority pursuant to an interim or final take-down notice;
(d) those Contributions are:
    (i) misleading or deceptive;
    (ii) inappropriate having regard to the purpose of the Website;
    (iii) likely to cause offence;
    (iv) materially incorrect;
    (v) obscene;
    (vi) defamatory;
    (vii) otherwise unlawful; or
    (viii) corrupted, due to the presence of a virus or other disabling code.

8.9 You retain all of your ownership rights in your Contributions. NHG is under no obligation to treat your Contributions as proprietary information.

8.10 To the extent that any Contributions are proprietary in nature, you grant NHG, in respect of Contributions to its Websites, a worldwide, non-exclusive, royalty-free, licence fee free, perpetual, transferable and irrevocable licence to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and display and publicly perform your Contributions throughout the world in any medium, whether currently in existence or not.

8.11 You also grant each User of the Website a non-exclusive licence to use, reproduce, adapt, translate, distribute, prepare derivative works of, display and perform your Contributions as permitted by NHG and this Agreement.

8.12 You warrant that you are the owner of (or otherwise have the right and authority) to provide such Contributions and make the licenses under clauses 8.10 and 8.11, and on the terms contained in this Agreement. You warrant to NHG, in respect of Contributions to its Websites that:
(a) you own and control all of the rights to the Contributions; or
(b) you have the lawful right including all necessary licences including, rights, consents, and permissions to use and authorise NHG to display the Contributions.

8.13 Although you will continue to retain ownership of pre-existing intellectual property in the Contributions, you acknowledge that NHG will own any intellectual property rights in new works which are created directly or indirectly from such content, and that such rights may be assigned by NHG to any third party.

8.14 For any Contributions that you may retain moral rights in, you declare that:
(a) you do not require that any personally identifying information be used in connection with the Contribution, or any derivative work, upgrade or update of the Contribution;
(b) you have no objection to the publication, use, modification, deletion and exploitation of the Contribution by NHG in respect of all Contributions.
(c) you waive and agree not to assert any entitlement to any and all moral rights of an author in any Contribution; and
(d) you release NHG in respect of all Contributions from any claims that you could assert against NHG by virtue of any such moral rights.

8.15 You understand that when accessing the Website, you may be exposed to Other User Contributions. You acknowledge and agree that NHG has no control of and is not responsible for Other User Contributions. You release NHG from any claims that you could assert against NHG relating to or in connection with Other User Contributions.

9. Use of The Website by NHG Clients

9.1 The NHG Website has been developed based on a principle of fair play and creating an online marketing environment that is equitable for all NHG Clients, regardless of the size of their company.

9.2 In order to support and enforce this principle, NHG reserve the right to delete and edit Client Contributions should they be in breach this Agreement including the terms and conditions set out in clause 9.

9.3 As an NHG Client, you represent and warrant that:
(a) the information you supply on registration is accurate in all respects;
(b) if any of that information changes you will promptly notify NHG in writing of the changes by emailing NHG at info@newhomesguide.com.au;
(c) your use of the Website will comply at all times with this Agreement and any directions published from time to time by NHG on the Website;
(d) you will make sure that you keep your Username and password by which you access the Website confidential and secure at all times;
(e) you accept all liability for any unauthorised use of any Username and password issued except for unauthorised use resulting from any negligent act or omission legally attributable to NHG;
(f) you have the lawful right including all necessary licences, rights, consents, and permissions to use and authorise NHG to display your Contributions; and
(g) you will not make any Contributions that:
    (i) infringe the intellectual property rights of any third party, and you agree to pay all royalties, fees or other monies payable by reason of any Contributions made by you;
    (ii) are misleading or deceptive;
    (iii) are materially incorrect;
    (iv) are likely to cause offence;
    (v) directly or indirectly involve the advertising or marketing of any products or services;
    (vi) are obscene, including pornographic, hateful, racially or ethnically offensive material; are defamatory;
    (vii)are otherwise unlawful or encourage unlawful conduct; or
    (viii) are otherwise inappropriate having regard to the purpose of the Website.

9.4 NHG has the right at any time to adjust and/or remove Client Contributions that are in breach of this Agreement.

9.5 NHG Clients agree to use the Website within the parameters of both the Advertising Agreement they have signed and to agree not to attempt to develop short cuts/work arounds for the systems that control the site.

9.6 NHG Clients are responsible for their own content and are bound by the terms of the package purchased and agree to abide by the following:
(a) Image areas on the Website to be used for the display of property images and not graphics, text, sale offers or other call to action or incentive devices.
(b) to publish property titles/names only and not include any additional information regarding the location and/or features of the property.

9.7 NHG has the right to use the content and images uploaded onto the site, for the promotion of the site and for general marketing purposes.

9.8 NHG retain all rights to use the data gathered by the Website in any way they deem acceptable in other applications, data bases etc.

9.10 It is the NHG Client's responsibility to ensure that the content and images they display on NHG Websites are as true and accurate as possible, and updated and maintained as required to maintain maximum accuracy.

9.11 The NHG Client acknowledges and agrees that NHG will not be liable for inaccurate or misleading information and that the NHG Client Contributions remains the responsibility of the respective NHG Client.

9.12 NHG will not be liable for any loss of business resulting from the Website being 'off line' at any times.

9.13 Every effort is made to keep the Website up and running smoothly. However, NHG takes no responsibility for, and will not be liable for, the Website being unavailable.

9.14 All trademarks reproduced in this Website, which are not the property of, or licensed to the operator, are acknowledged on the Website.

9.15 Unauthorised use of this Website may give rise to a claim for damages and/or be a criminal offence.

10. Indemnity

You agree to indemnify and hold harmless NHG, and its officers, agents, partners and employees against any and all loss, liability, claim or demand (including reasonable attorneys' fees arising out of, or in connection with your use and access to the Website or Contributions not in accordance with this Agreement.

11. Limitation of Liability

Certain rights and remedies may be available under the Australian Competition and Consumer Law and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, NHG excludes all conditions and warranties that may be implied by law. To the extent permitted by law, Our liability for breach of any implied warranty or condition that cannot be excluded is restricted, at Our option to: the re-supply of services or payment of the cost of re-supply of services; or the replacement or repair of goods or payment of the cost of replacement or repair.

IN NO EVENT SHALL NHG BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, DOWNTIME COSTS, LOSS OF PROFIT, LOSS OF OR DAMAGE TO REPUTATION, LOSS UNDER OR IN RELATION TO ANY OTHER CONTRACT, LOSS OF DATA, LOSS OF USE OF DATA, LOSS OF ANTICIPATED SAVINGS OR BENEFITS SUFFERED OR INCURRED BY OR AWARDED AGAINST YOU UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE WEBSITES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE AGGREGATE LIABILITY OF NHG, ITS RELATED ENTITIES TO YOU FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $100.00.

12. Policy for Linking to Our Websites

12.1 Hyperlinks enhance the User's experience by providing easy access to additional information or original source material, whether on the same site or from an external source. For this reason, we value the use of hyperlinks in Our Website content.

12.2 However, in using hyperlinks, NHG:
(a) attributes the original source of the hyperlink where it points to third party content.
(b) does not claim ownership or rights to content belonging to other parties.

12.3 You must observe similar practices when linking to Our content. You should be aware that if you do not do this, this you may be in breach of Our rights or the rights of NHG's licensors or other third parties.

12.4 Please do:
(a) Link to Our content directly. NHG encourages direct links.
(b) Comply with all copyright, trade mark or other applicable laws.
(c) Use the title or headline of the content to which you are linking, as long as you link directly to that content.

12.5 Please do not:
(a) Attribute a link to NHG content as being a link to your own or someone else's content (for example, use your own logo to link to Our content).
(b) Attribute a link to Our Website and then link somewhere else.
(c) Frame Our content in such a way as to present it as your own or as belonging to anyone other than us or Our licensors.
(d) Link to Our content as part of a property portal aggregating property listings and/or information, unless we give you specific written approval to link to Our content.

12.6 NHG reserves the right to require that you do not link to Our content and we may exercise this right by giving notice to you. NHG reserves complete discretion in relation to Our exercise of this right, which may be due to the matters or circumstances above, or any other matter or circumstance we consider is due reason.

13. Privacy Act

13.1 We are bound by the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of all data, information, content and materials submitted by you. We warrant that We will take reasonable steps to keep your Personal Information secure and not disclose it to a third party except as outlined in this Agreement, in the Privacy Policy or as required by law.

13.2 The Privacy Policy forms part of this Agreement. By agreeing to these Terms of Use, you acknowledge that you have read and understood Our Privacy Policy, which allows Us to collect Personal Information about you and your use of the Website, including, without limitation, your internet protocol address, as well as statistical information such as your visitation history, to the extent permissible by the laws of Western Australia and Australia. Please refer to Our Privacy Policy for full details.

14. Dispute Resolution

14.1 Neither party may begin arbitration or court proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute in relation to this Terms of Use Agreement and use of the Website unless it has first complied with this clause 14.

14.2 Notification of Dispute

A party claiming that a dispute has arisen must:
(a) give notice in writing to the other Party describing the nature of the dispute;
(b) within seven (7) days after a notice is given in accordance with clause 14.2(a) above, each party must nominate in writing to the other party a representative who is authorised to settle the dispute on its behalf;
(c) During the fourteen (14) day period after a notice is given under the nomination of a representative in accordance with 14.2(b) above (or, if the parties agree to a longer period, that longer period), each party’s nominee must use his or her best efforts to resolve the dispute.

14.3 Referral to Mediation

If the dispute is not resolved within the time specified in clause 14.2 above, the dispute must be referred to mediation in accordance with the Mediation Rules of the Resolution Institute to:
(a) a mediator agreed to by the parties, or if the parties do not agree on a mediator, a mediator nominated by Chair of the Resolution Institute (or his or her delegate); and
(b) both parties will use their best efforts to resolve the dispute within the thirty (30) day period after the appointment of a mediator (or, if the parties agree to a longer period, that longer period).

14.4 Each party shall bear their own costs in relation to, or in connection with the resolution of the dispute. The costs of the mediation shall be borne equally by both parties.

14.5 Referral to Arbitration

If the dispute is not resolved within the time frame specified in clause 14.3(b) above, the dispute must be referred to arbitration in accordance with the Arbitration Rules of the Resolution Institute by an arbitrator agreed to by the parties, or if the Parties do not agree on an arbitrator, an arbitrator nominated by the Chair of the Western Australian Chapter of the Resolution Institute (or his or her delegate).

14.6 The decision of the arbitrator shall be final and binding on both parties.

14.7 Parties’ rights not affected

Nothing in this clause 14 affects a party’s rights to terminate this Terms of Use Agreement.

14.8 Nothing in this clause 14 denies either party the right to seek urgent interlocutory relief from a court of competent jurisdiction in relation to any dispute arising under this Terms of Use Agreement, where the intellectual property rights or confidential information is at risk.

14.9 Performance of obligations pending resolution of dispute

Prior to the resolution of a dispute in accordance with this clause 14, the parties must continue to perform their respective obligations under this Terms of Use Agreement insofar as those obligations are not the subject matter of the dispute.

15. Jurisdiction

Your use of this Website and all of Our legal notices will be governed by and construed in accordance with the laws of Western Australia, Australia and by using Our Internet sites you irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of that State. You agree that you will not at any time object to that jurisdiction on the grounds of forum non conveniens or otherwise.

16. General

16.1 If any part of this Agreement is deemed invalid or unenforceable by a court, that part shall be modified or severed as appropriate to reflect the parties’ intention, and the rest shall remain in full force and effect as if the invalid or unenforceable term had never been included.

16.2 Any failure or delay in or by us in enforcing any part of these Terms of Use is not to be construed as a waiver of Our rights. Any waiver of our rights must be given in writing.

16.3 Our rights and obligations under this Agreement may be transferred or assigned at any time.

16.4 We reserve all rights at law and in equity.