Make an Offer Subscription Agreement

1. Introduction

1.1 Our Platform. The Make an Offer Platform is owned and operated by Make Operating Pty Ltd ACN 646 768 676 (Make an Offer, we, us).

1.2 Acceptance of this Subscription Agreement. By accessing, registering for, or otherwise using the Platform, you agree to this agreement, which creates a legally binding agreement between you and Make an Offer. If you do not accept the terms of this agreement, you must not access, register for, or otherwise use the Platform. If you are accepting this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to this agreement.

1.3 Interpretation. Capitalised terms used in this agreement have the meanings given in clause 12.

2. Use of the Platform

2.1 Licence. Subject to your ongoing compliance with this agreement, Make an Offer grants to you a revocable, non-exclusive, non-transferable licence for you to access and use the features and functionality of the Platform that we make available to you, for the purposes contemplated in this agreement.

2.2 Warranties. You represent, warrant and undertake that:

a) you have capacity to enter into this Subscription Agreement;
b) you will only use the Platform for lawful purposes;
c) you have and will continue to have all necessary authorisations, licences, and consents required by Law to perform your activities in connection with this Subscription Agreement including, where applicable, if you act as an agent;
d) all information provided by you to Make an Offer is true, correct, complete and provided to us in good faith; and
e) you will use the Platform in good faith in accordance with this agreement.

2.2 Important disclaimers. Subject to clause 9.4, and to the extent permitted by law:

a) the Platform is provided "as is" and "as available";
b) Make an Offer disclaims all conditions, representations, warranties and guarantees, expressed or implied, including title, non-infringement, availability, uninterrupted or error-free operation, currency, merchantability or fitness for a particular purpose;
c) the data and other materials we make available through the Platform are general in nature and should not be seen as a substitute for professional advice or valuation, and must not be relied upon as such; and
d) we exclude all liability for any loss or damage howsoever arising suffered by you as a result of your reliance on the accuracy of sales data, analysis or other materials we make available to you through the Platform.

3. User Accounts and Authorised Users

3.1 Creating an account. To access and use certain features of the Platform, you will need to register for a User Account via the Platform and select a subscription type.

3.2 Cancelling an account. You may cancel your User Account at any time by logging into the Platform and electing to cancel your User Account. The cancellation will take effect at the end of your current subscription period.

3.3 Security. You are responsible for maintaining the confidentiality of your User Account and for restricting access to your computer or mobile device. You agree to accept responsibility for all activities that occur under your User Account.

3.4 Authorised Users. If you are a corporate user, depending on your subscription type, we may permit you to grant access to the Platform your officers, employees and/or contractors (Authorised Users). If we have not notified you that Authorised Users are included with your subscription, you must not allow any other person to access the Platform using your User Account.

3.5 Responsibility for Authorised Users. You have sole responsibility for granting and managing Authorised Users (if any), and must ensure each Authorised User complies with this agreement.

4. Fees and payment

4.1 Subscription Fees. The features and fees associated with our subscriptions may change from time to time. For details of the current features and subscription fees, please refer to our website. Unless you are in a free trial or other offer period:

a) you must pay the associated Subscription Fees notified to you at the time of purchase; and
b) Subscriptions Fees must be paid for each subscription period in advance.

4.2 Automatic renewal. If you do not cancel your subscription, the subscription period will automatically renew upon the last day of the current subscription period, for a further subscription period of the same length and subscription type. Payment will be automatically debited at the commencement of each further subscription period using the payment method you have nominated.

4.3 **Free trials. When you first register for a User Account you may be given the option of participating in a free trial. If you do not cancel your subscription by the end of the free trial period, you will need to pay the subscription fees for your selected subscription type from the date the free trial period ends. **

4.4 Changes to Subscription Fees. Make an Offer may change the Subscription Fees from time to time by providing you with at least 30 days prior written notice. Any such change will take effect from no earlier than the start of your next subscription period. If you do not wish to continue with your subscription because of such a change to the fees, you are entitled to cancel your subscription in accordance with clause 3.2prior to the change taking effect.

4.5 Other Fees. We may offer optional additional products and services in connection with the Platform at an additional Fee from time to time. When purchasing a product or service from Make an Offer, you must pay the applicable Fees notified to you at the time of purchase.

4.6 Payment. All prices quoted on the Platform are in Australian dollars and are inclusive of GST, unless otherwise expressly provided. You warrant that the credit or debit card, or account or other payment method which you nominate to use is your own or that you are fully entitled to use that card, account, or other payment method.

4.7 Interest. Any overdue and unpaid portion of Fees shall bear interest at a rate of 1.5% per month or the maximum rate allowed by applicable Law, whichever is less. Additionally, you must pay all costs and expenses (including legal fees) incurred by Make an Offer in recovering any overdue Fees and interest.

5. Terms of Use

5.1 Suitability. You shall have sole responsibility for determining the suitability, appropriateness and relevance of the Platform for you and your Authorised Users.

5.2 Terms of use. You must procure each Authorised User to comply with the terms and conditions of the Terms of Use, the current version of which is located at [insert URL].

5.3 Prohibited Conduct. You agree that the Platform and the associated Materials will be used solely for the purposes and functions contemplated by this agreement and you will refrain from using the Platform for any other purpose (Prohibited Conduct). Prohibited Conduct includes:

a) listing a property for sale unless you own that property, or you are an agent for the vendor of that property and you have been authorised to list that property for sale on the vendor's behalf;
b) using the Platform to bid on your own property;
c) inducing or attempting to induce, another person by a collusive practice to abstain from making an offer on a property, or do any other act or thing that may prevent free or open competition;
d) tampering with or attempting to access user accounts of other users;
e) re-selling, sub-licencing or distributing access to the Platform to another person;
f) engaging in any misleading or deceptive conduct, unconscionable conduct or any fraudulent or unlawful conduct;
g) reproducing, duplicating, broadcasting, copying, selling, trading, reselling, redistributing in any medium, or exploiting, directly or indirectly, for any commercial purposes any portion of the Platform or its content without our prior written consent;
h) using the Platform in a way that is likely to disrupt or cause technical problems with the Platform, including the knowing transmission of any viruses, Trojan horses, trap doors, back doors, worms, time bombs or other malicious code or computer programming routines;
i) attempting to gather and use information available from the Platform to transmit any unsolicited advertising;
j) posting reviews or other material that could be considered defamatory, prejudicial, racist, off-topic, inflammatory, repetitive, discriminatory, vexatious, insensitive, offensive or otherwise inappropriate or unlawful; and
k) use the Platform to publish or upload any content, links or advertisements of websites that infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information.

5.4 You shall be strictly liable to Make an Offer for, and shall indemnify, defend and hold us harmless from and against any losses, claims or other damages it may incur as a result of Prohibited Conduct by you.

6. Changes and maintenance

6.1 Our right to make changes to the Platform. Make an Offer retains the right to enhance, modify or alter the operation of the Platform or the underlying software or technology from time to time. Make an Offer may offer new functionality and other services for a separate fee and subject to the parties’ agreement to separate terms and conditions.

6.2 Maintenance windows. From time to time, Make an Offer or a third-party service provider may update or perform maintenance on the underlying software or hosting environment and perform other routine software or hardware maintenance that may affect the availability or performance of the Platform. We will use commercially reasonable efforts to provide notice to you in advance of outages due to such planned maintenance.

7. Intellectual Property Rights and User Data

7.1 Platform. The Platform consists of and contains materials that are owned by Make an Offer and its licensors. The Platform and associated materials provided with the Platform are protected by intellectual property laws and must not be used or copied by you except as contemplated by this agreement, or otherwise with the prior written consent of Make an Offer.

7.2 Feedback. If you submit feedback or a comment or suggestion for improving the Platform, you assign to Make an Offer any Intellectual Property Rights which you may have in that suggestion, comment or feedback.

7.3 Ownership of User Data. All information, descriptions, data, images, videos, reviews and other content that you input or upload via the Platform (User Data) remains owned by you.

7.4 Our right to use your User Data. You grant us a perpetual, irrevocable, transferable, non-exclusive, royalty-free licence (including the right to grant sublicenses) to use, modify, reproduce, host, store, transmit and display your User Data for the purposes of:

a) performing our obligations, or exercising our rights, under this Agreement and enabling your access to, and use of, the Platform;
b) de-identifying or aggregating your User Data (or both) including with any Content of Make an Offer or user data of other users, and creating derivative works of them and owning all right, title and interest in and to the aggregated material or derivate works;
c) allowing us to improve the Platform and our associated services, and to develop new products and services; and
d) marketing products and services to you that we think you may be interested in.

7.5 Your responsibilities. By inputting User Data into the Platform, you warrant that our use of your User Data as contemplated by clause 7.4, will not cause Make an Offer to breach any applicable Laws (including privacy laws) or infringe any third party rights (including Intellectual Property Rights).

8. Privacy and confidentiality

8.1 Make an Offer Privacy Policy. We will collect, process and use personal information collected or received by us in connection with providing the Platform to you, in accordance with in our privacy policy as amended from time to time. The current version our privacy policy is located at [insert].

8.2 Privacy laws. Each party will comply with privacy Laws applicable to it and its activities in connection with this Agreement. Nothing in this Agreement shall prohibit or otherwise restrict either party from complying with obligations under applicable privacy Laws.

8.3 Confidentiality. You acknowledge and agree that information relating to the function or operation of the Platform and associated Intellectual Property Rights, screen or menu hierarchies, techniques, algorithms, know-how, current and future, relating to the Platform other than information that is known publicly (Make an Offer Confidential Information) is confidential information of Make an Offer. You agree to keep confidential all Make an Offer Confidential Information and not to use the Make an Offer Confidential Information except to the extent necessary to use the Platform in accordance with this Agreement.

9. Limitation of liability and indemnity

9.1 General. Subject to clause 9.4, Make an Offer excludes any and all liability to you however arising (including negligence) for:

a) Consequential Loss;
b) losses or expenses you suffer or incur relating to any interruption in the operation of the Platform or an Excluded Incident;
c) losses or expenses you suffer or incur as a result of Make an Offer's breach of this agreement to the extent the breach is caused by an event or circumstances beyond Make an Offer's reasonable control;
e) Make an Offer's reasonable actions in denying anyone access to the Platform for security reasons, non-payment or default; and
f) actions taken in relation to this agreement in accordance with Make an Offer's obligations at Law or any order issued by a court of law or relevant government authority, whether directly or indirectly arising in connection with the Platform.

9.2 Maximum liability. To the extent permitted by Law, Make an Offer’s aggregate liability for all claims arising from this agreement, regardless of the nature of such claim and included under any indemnity, must not exceed the total aggregate Subscription Fees paid by you during the 12 months preceding the date of the event giving rise to a claim.

9.3 Third party resources. Make an Offer is not responsible for any links to third party websites or other resources accessible via the Platform, including the availability of such websites, resources or links. Use of such websites and resources is at your sole risk.

9.4 Non-Excludable Rights. Nothing in this agreement is intended to have the effect of excluding the Australian Consumer Law or any other applicable Law that cannot be excluded, restricted or modified by agreement of the parties (Non-Excludable Rights). To the maximum extent permitted by Law, the liability of Make an Offer in respect of any breach of or failure to comply with any Non-Excludable Right (which cannot be excluded but which can be limited) is limited to Make an Offer doing one or more of the following (at its election):

a) if the breach is in respect of goods: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; or
b) if the breach is in respect of services: the supply of the services again; or the payment of the cost of having the services supplied again.

9.5 Indemnity. You agree to indemnify Make an Offer against any claim or liability arising from or in relation to your:

a) misuse of the Platform;
b) breach of any Law or infringement of any third party rights including intellectual property rights; and
c) breach of your warranties or obligations under this agreement.

10. Term and termination

10.1 Term. These Terms of Use are binding from the date that you first access, use or register for the Platform and continue until terminated in accordance with this agreement.

10.2 Suspension. Make an Offer may suspend your access to the Platform immediately for the following reasons:

a) your non-payment of Subscription Fees;
b) where we have been unable to verify your identify or information you have provided to us reasonably required by us to provide the Platform;
c) to mitigate or prevent actual or reasonably suspected fraud, effects of viruses or other harmful code, security breaches or malicious attacks of the Platform, illegal activity or other loss, damage or misuse of the Platform;
d) acting reasonably, you have or we suspect you have done all or any of the following: breached any obligations relating to your compliance with Law; committed fraud; by your acts or omissions undertaken Prohibited Conduct,

until the issue is remedied. We will notify you of such action, prior to or as soon as reasonably practicable after we have taken such action.

10.3 Termination for convenience. You may terminate this agreement at any time by cancelling your User Account in accordance with clause 3.2. You will not receive any pro rata refund if you elect to terminate this Agreement for convenience pursuant to this clause 10.3. We may terminate this agreement at any time for convenience (without cause) by providing you with at least 30 days prior written notice. If Make an Offer terminates under this clause 10.3, Make an Offer will provide you with a pro rata refund of Subscription Fees paid in advance by you for the unused portion of the current subscription period (if any).

10.4 Termination for cause. These Terms of Use may be terminated by a party providing written notice to the other party in the event that the other party commits a breach of this agreement that is incapable of remedy, or a breach that is capable of remedy, and does not remedy such breach within 30 days of receipt by that party of written notice setting forth in detail the nature of such breach.

10.5 Consequences of termination

If your User Account is terminated for any reason then (without limiting any other rights Make an Offer may have):

a) your right to use the Platform will immediately be limited to the portions of the Platform which do not require registration;
b) we may immediately deactivate your User Account; and
c) we may retain records relating to your User Account in accordance with general legal and accounting requirements.

11. General

11.1 Variations to this agreement. We may amend the terms of this agreement from time to time and will provide you with at least 30 days prior notice of any changes. Any such change will take effect from no earlier than the start of your next subscription period. If you do not wish to continue with your subscription because of the change, you are entitled to cancel your subscription in accordance with clause 3.2 prior to the change taking effect.

11.2 Force majeure. Neither party will be deemed in default of this agreement as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labour disputes, fire, acts of war, failure of third party suppliers, or for any other cause beyond the control of that party.

11.3 Notices. All notices under this agreement must be in writing. In the case of Make an Offer, a notice may be provided by publishing the notice on the Platform.

11.4 Survival. Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the expiry or termination of this agreement, clauses 2.2, 7, 8, 9, 10.5, 11 and 12 survive expiry or termination.

11.5 Assignment. You must not sell, assign, license, sub-license, or otherwise convey in whole or in part to any third party this agreement or the Platform without the prior written consent of Make an Offer. Make an Offer may assign its rights or transfer its rights and obligations under this agreement without your consent.

11.6 Governing Law. This agreement is governed by the laws in force in Queensland, Australia, without regard to conflict of law principles. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia.

11.7 Severability. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this agreement must continue in effect.

11.8 Relationship. Nothing in this agreement is intended or must be construed to create or establish an agency, partnership, or joint venture relationship between the parties.

11.9 Waiver. No waiver by either party of any provision or any breach of this agreement constitutes a waiver of any other provision or breach of this agreement and no waiver must be effective unless made in writing.

11.10 Interpretation. In this agreement unless a contrary intention is expressed:

a) the headings contained herein are for convenience of reference only, and are not intended to define, limit or describe the scope or intent of any provisions of this agreement;
b) a reference to “include”, “including” or “for example” are not intended to be exhaustive or words of limitation;
c) the singular includes the plural and the plural includes the singular;
d) a reference to a document (including this agreement) includes all amendments or supplements to, or replacements or novations of, that document; and
e) a reference to a party to any document includes that party's successors and permitted assigns.

11.11 Entire Agreement. This agreement constitutes the entire agreement between the parties as to its subject matter and any prior arrangements, agreements, warranties, representations or undertakings are superseded.

12. Definitions

12.1 Definitions

In this agreement:

Australian Consumer Law: means Schedule 2 to the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of any fair trading legislation.
Consequential Loss: includes:

a) loss of data or unauthorised disclosure of data;

b) loss of opportunity, loss of revenue, loss of anticipated profits or savings, expenses incurred through default or breach, wasted overheads, loss of contract, loss of bargain, loss of business, loss of production, loss of use, loss of goodwill, and all other pure economic loss; and

c) disappointment, distress, stress, and inconvenience.

Fees: means all fees payable by you to Make an Offer in connection with this agreement, including the Subscription Fees.
Intellectual Property Rights: means all intellectual property rights anywhere in the word, including copyright, patents, and trademarks (whether registered or not), and includes the right to register any intellectual property rights.
Law: means:

a) legislation, ordinances, regulations, by-laws, orders, awards, proclamations, directions and practice notes of the Commonwealth, a State or Territory or any Government Agency;

b) certificates, licences, consents, permits, approvals, qualifications, registrations, standards and requirements of organisations having jurisdiction in connection with the Platform; and

c) common law, equity and all other laws from which legal rights and obligations may arise.

Platform: means the Make an Offer software-as-a-service platform provided by Make an Offer that may be accessed via [insert URL], or such other domain as Make an Offer nominates from time to time.
Subscription: means the recurring fees payable by you to Make an Offer for your use of the Platform.
Term: has the meaning given to that term in clause 10.1.
User Account: means your registered account with Make an Offer for use of the Platform.

Last updated: 21 November 2022