THIS AGREEMENT SETS OUT THE TERMS AND CONDITIONS THAT APPLY TO YOUR MEMBERSHIP OF THE CENTRE FOR LIVEABILITY REAL ESTATE.
If you do not agree to comply with the Terms and Conditions then you must not access or use the Liveability IP
The Liveability IP is available for you to access only on the condition of your acceptance, without alteration, of the terms and conditions of this agreement set out below (‘Terms and Conditions’). The Terms and Conditions are legally binding. Your acceptance of and agreement to comply with all of the Terms and Conditions is indicated by accessing and continuing to access the Liveability IP.
If you intend to access the Liveability IP in connection with your employment or as an agent for a principal, you should only accept this agreement if you have been authorised to do so by your employer or principal (as applicable). By accepting this agreement, you are warranting to CSIRO that you are authorised to do so on behalf of your employer or principal (as applicable).
TERMS AND CONDITIONS OF USE
1. Meaning of words
The following words have their defined meaning when used in this agreement:
- 'Confidential Information' means all information disclosed in any form or media, which is by its nature confidential or which either of us identify as confidential and all copies, notes and records made of such information.
- 'CSIRO' means the Commonwealth Scientific and Industrial Research Organisation ABN 41 687 119 230, having its principal office at CSIRO Black Mountain Science and Innovation Park, Clunies Ross Street, Acton ACT, Australia.
- ‘Fee’ means the annual fee.
- ‘IP’ means any rights in any existing or future copyright work, patentable invention, design, circuit layout, new plant variety, trade mark, know-how or trade secret.
- Liveability Data means the following data relating to built residential properties appraised by you using the Liveability IP: the property address and the 17 data points relating to the 17 things appraisal materials.
- Liveability IP and Agreed Materials have the meaning set out in the table in clause 3
- Liveability Training means training provided by Weldonco or such other entity as CSIRO may nominate in relation to the Liveability IP.
- ‘Personal Information’ has the meaning set out in clause 9.
- 'we', 'us' or 'our' means you and CSIRO severally.
- 'you' means you the Member; 'your' has a corresponding meaning.
2. Qualification for Membership
In order to qualify for membership of the Centre for Liveability Real Estate and access the member benefits, you must have completed the Liveability Training, pay the Fee and retain your status as a licensed real estate agent or sales agent or residential property manager.
3. Membership Benefit - Your Right to use the Liveability IP
With effect from the date on which CSIRO receives the Fee in cleared funds, CSIRO grants you a non-transferable, non-exclusive right and licence to use the Liveability IP on the Agreed Materials in Australia for a period of 12 months on the terms set out in this Membership Agreement. This right may not be sub-licensed to any person (except for the purposes of producing the marketing materials to be used by you). The Liveability IP may only be used in relation to existing residential property (and not off-the-plan or not-built residential or other property).
Liveability IP: Liveability Real Estate Specialist trade mark
Agreed materials: You can use the trade mark in online and print marketing materials to identify you as a member of the Centre for Liveability Real Estate.
Liveability IP: This property has Liveability Features trade mark
Agreed materials: You can use the trade mark above on online and print materials relating to built residential properties that you have appraised as having some of the 17 Things using the 17 Things Appraisal Checklist.
Liveability IP: the 17 Things trade mark
You can use this trade mark on open for inspection materials as well as on market appraisals, listings and property reports.
Liveability IP: The 17 Things Appraisal Checklist with benchmarks, both online and print version
You can use the checklist and the know-how from the Liveability Training to appraise and list, sell and rent built residential property.
4. No use of CSIRO Name
You must not use CSIRO's name (that is, "CSIRO" or "Commonwealth Scientific and Industrial Research Organisation") in a manner that suggests that CSIRO endorses or is associated with your business, products or services. In no case may you use CSIRO's logo.
5. Other things you need to know about and do regarding your licence to the Liveability IP
You acknowledge and agree that:
- title to the Liveability IP vests in CSIRO and that the only rights or interest in the Liveability IP that are held by you are those granted under this Membership Agreement;
- all future goodwill arising out of your use of the Liveability IP must, on its creation, vest in and remain the property of CSIRO, and except as expressly stated in this Membership Agreement, nothing in this Agreement limits CSIRO's rights at any time to license the Liveability IP to third parties in any way.
5.2 Providing Samples to CSIRO
- submit, prior to use, samples of the relevant Agreed Materials to CSIRO for inspection (which may be retained by CSIRO as a reference standard);
- only apply the Liveability IP to Agreed Materials that conform to the samples approved by CSIRO; and
- at CSIRO’s reasonable request, give CSIRO any information concerning your use of the Liveability IP that CSIRO may require.
5.3 Quality Control
You must also:
- observe all reasonable directions notified to you by CSIRO regarding:
- the nature, standards, characteristics and quality of Agreed Materials;
- the representation of the Liveability IP in and on the Agreed Materials and, in particular but without limitation, may not use the Liveability IP in combination with any other sign so as to create a composite trade mark; and
- the manner in which you use the Liveability IP in respect of the Agreed Materials;
- use your best endeavours to preserve the value and goodwill of the Liveability IP;
- only use the Liveability IP in the form approved by CSIRO and in accordance with CSIRO’s branding guidelines/style guide notified by CSIRO from time to time;
- ensure that no Agreed Material contravenes the Competition and Consumer Act 2010 (Cth), or any other similar legislation in any jurisdiction; and
- ensure that your use of the Liveability IP and Agreed Materials comply with the Australian Competition and Consumer Commission’s Guide to “Green marketing and the Australian Consumer Law”. In particular, and without limitation, you should not market any properties as “green” or “environmentally friendly”.
6. Things you may NOT do with the Liveability IP
You must not:
- use the Liveability IP in any way which is likely to harm or prejudice CSIRO’s rights in them;
- use the Liveability IP on any other products or services;
- use the Liveability IP for any unlawful purpose or in contravention of any industry standards, including without limitation any privacy laws;
- use the Liveability IP in connection with any real estate or properties which are not built. In particular, you may not use the Liveability IP in connection with any off-the-plan real estate or properties; apply to register in any country any trade mark, or apply to register or use any business name, company name or Internet domain name that comprises or contains the Liveability IP, or any registered or unregistered trade mark of CSIRO or any words or images that are substantially identical with, or deceptively similar to the Liveability IP or any registered or unregistered trade mark of CSIRO without the prior written consent of CSIRO; nor
- challenge or in any way impugn:
- CSIRO’s complete ownership of, or rights to use, Liveability IP (whether in Australia or in any other country); nor
- the validity of, or CSIRO’s title to, any applications for registration made by CSIRO, or any registrations obtained by CSIRO in respect of the Liveability IP at any time and in any country.
7. Your payment
You must pay CSIRO the Fee annually via this web portal or as otherwise agreed with CSIRO. You are not entitled to use the Liveability IP until such payment is received. All invoices issued by CSIRO must be paid within 30 days after the invoice date. If an invoice is not paid on time then you must pay interest on the outstanding amount. Interest is calculated daily at the Westpac Bank Reference Lending Rate plus 2% per annum from the due date until the date the outstanding amount is paid.
For GST purposes the payment page and any receipts issued by CSIRO are tax invoices. Any additional invoices issued by CSIRO will be in the form of a tax invoice.
8. What you should do with the Liveability Data
- promptly upload the Liveability Data that you collect during your appraisal to the Liveability website at www.liveability.com.au or such other database as may be indicated by CSIRO from time to time; and
- ensure that the owner of the residential property for whom you are conducting any appraisal using the Liveability IP, consents to you maintaining, and disclosing to CSIRO, the Liveability Data for the purposes of enabling:
- CSIRO to audit your compliance with this Agreement;
- CSIRO to conduct research and analysis using the Liveability Data, including research and collaboration with or on behalf of third parties; and
- CSIRO to provide the Liveability Data to third party online property marketing platforms and providers of property data analytics.
9. Important information about your privacy
When you become a member, and pay the Fee, you will also be required to submit other information, including personal information as defined in the Privacy Act 1988 (Cth) (‘Personal Information’), to CSIRO and other third parties over the Internet.
Any Personal Information CSIRO collects from you will be treated in a manner consistent with CSIRO’s APP Privacy policies and procedures:
When you provide CSIRO with Personal Information, you acknowledge that purposes for which CSIRO may hold and process your Personal Information includes:
- use for the purpose for which you provided it;
- Liveability IP administration and the provision of services;
- accounting purposes;
- providing you with further information, including in relation to our products or services;
- use as required for processing any enquiries;
- information and databank administration; and
- any other reasonable purpose relating to our relationship with you as a member of the Centre for Liveability Real Estate.
Other than for the purposes acknowledged above or where CSIRO may be required by law to disclose certain information, CSIRO will not use or disclose your Personal Information without your consent.
CSIRO will use reasonable endeavours to ensure that the most recent information provided by you is displayed.
If you would like to obtain a copy of the Personal Information about you held by CSIRO, or correct any such information, please contact us via the details on our website: www.csiro.au.
10. CSIRO’s management of the Liveability IP
You agree that:
- CSIRO in its discretion may seek and maintain registration of the Liveability IP in any country;
- the licences in respect of the Liveability IP exclude the right to commence any action in any place for trade mark infringement or for infringement of any rights referable to the goodwill or reputation in the Liveability IP;
- CSIRO has the sole right to take action against third parties in respect of the Liveability IP;
- you must not:
- take any action against any third party in respect of the Liveability IP; or
- settle any claim or action by or against any third party in respect of the Liveability IP, without CSIRO’s prior written consent. CSIRO may determine, in its sole discretion, whether legal proceedings should be taken, how such proceedings must be conducted and in whose name those proceedings or other action must be performed;
- if required by CSIRO, you must cooperate fully in any action instituted or defended by CSIRO in relation to the Liveability IP, including by providing requested information and materials, procuring evidence and providing testimony as may be required in any such action;
- any legal proceedings instituted pursuant to this clause, and all damages, settlement amounts or other amounts recovered from third parties, must be exclusively for the benefit of CSIRO; and
- you must notify CSIRO of any actual or suspected infringement of the Liveability IP of which you become aware.
11. Confidential Information
Confidential Information must be kept confidential for a period of 5 years commencing on the date you sign this Agreement.
The obligation to maintain the confidentiality of Confidential Information does not apply to information which either of us can prove was:
- created by our own officers, employees and contractors independently of each other's Confidential Information;
- rightfully known by either of us as a consequence of the information being disclosed from an independent source without any limitation on its use or disclosure; or
- in the public domain (other than as a result of a breach of this Agreement).
We may each disclose the other's Confidential Information if required by law, but only to the extent of that legal requirement and after appropriate action is taken to protect the form and content of the disclosure
12. Acknowledgements and limitation of liability
You accept all risks and responsibility for losses, damages, costs and other consequences resulting directly or indirectly from using the Liveability IP and any information or material available or generated from it. This general disclaimer is not restricted or modified by any of the following specific warnings and disclaimers.
You acknowledge that CSIRO will not be liable or otherwise have any responsibility in relation to any transaction, arrangement, agreement or other relationship you enter into with another party as a result of your use of the Liveability IP,
Except as expressly stated in this agreement and to the full extent permitted by applicable law, CSIRO excludes all liability for any loss or damage (including direct, indirect, special or consequential loss or damage) arising from your use of the Liveability IP or otherwise in connection with this Agreement or your membership of the Centre for Liveability Real Estate.
This Agreement does not exclude or limit any guarantee, condition, warranty, right or liability implied into it by law (including the Competition and Consumer Act 2010), the exclusion of which would contravene the law or cause this Agreement to be void ('non-excludable consumer warranties'). This Agreement is at all times to be read subject to such non-excludable consumer warranties. Where such statute or law permits, CSIRO limits its liability to you for breach of such non-excludable consumer warranty to re-supplying the Liveability IP.
You agree to indemnify CSIRO against all actions, claims, losses, expenses, costs or damages incurred by or on behalf of CSIRO arising directly or indirectly from your breach of these Terms and Conditions or your unauthorised use of the Liveability IP.
Upon either of us becoming aware of any claim or other circumstance that may give rise to the indemnity being enforced, a party must provide the other party with full details of the action, claim, proceeding or demand.
It is not necessary for CSIRO to incur expense or make payment before enforcing its right of indemnity. Before making any demand for performance of the indemnity CSIRO will allow you such time as is reasonable in the circumstances to investigate your alleged liability and to negotiate a settlement of or to defend the action, claim, proceeding or demand.
14. Termination and Cancellation of your membership
This agreement is effective until terminated. You may cancel your membership on 30 days’ written notice to CSIRO. In addition, CSIRO reserves the right, acting reasonably, to terminate your licence to the Liveability IP (and therefore your membership of the Centre for Liveability Real Estate) on thirty (30) days’ written notice where:
- you are in breach of this Agreement;
- you cease to be a licensed real estate agent, sales agent or residential property manager;
- you use the Liveability IP in a manner which CSIRO considers likely to mislead or deceive;
- you enter into any form of insolvency, liquidation or external administration, whether voluntary or involuntary, formal or otherwise, or are otherwise unable to pay your debts as and when they fall due; or
- where you reduce or diminish the reputation, image or prestige of the Liveability IP; or
- where CSIRO gives you 90 days’ notice of its intention to terminate at will.
Where CSIRO terminates your licence, you must cease any further use and withdraw all references to the Liveability IP within a reasonable period not to exceed thirty (30) days.
We may change these Terms and Conditions or the Privacy Statement from time to time. You should refer to the Terms and Conditions and the Privacy Statement on a regular basis as you will be deemed to have accepted any variations to the Terms and Conditions and the Privacy Statement when you continue to access or use the Liveability IP after any variation has been posted. CSIRO will use reasonable endeavours to notify you of changes to the Terms and Conditions or Privacy Statement on the Web Portal when such changes are made.
16. Entire agreement
No action of CSIRO, other than an express written waiver or amendment, may be construed as a waiver or amendment of any of these Terms and Conditions.
Any provision of this agreement which is prohibited or unenforceable in a jurisdiction will be severed to the extent necessary to make this agreement valid and enforceable. The severance of a provision will not invalidate the remaining provisions of this agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
This agreement is to be read subject to any laws (to the extent they are applicable in the circumstances) that cannot be excluded, so that the agreement will as far as possible be valid and enforceable by CSIRO in the relevant circumstance.
17. Resolving disputes
In any dispute arising out of or in connection with this agreement or the Web Portal, you agree to first negotiate in good faith with CSIRO to resolve it. If the dispute is not resolved by those negotiations within 30 days, then the dispute must be submitted to mediation in accordance with, and subject to the Resolution Institute for resolution by mediation in accordance with the Resolution Institute Mediation Rules. However, this does not limit CSIRO's rights under the agreement or prevent CSIRO from seeking any urgent interlocutory relief.
18. Governing law and relevant jurisdiction
This agreement will be governed by and interpreted in accordance with the laws of the Australian Capital Territory, Australia, to the exclusion of any principles of conflicts of laws.
You agree to the jurisdiction of the courts of the Australian Capital Territory to determine any dispute arising out of this agreement.
Notwithstanding the foregoing, CSIRO has the right to commence and prosecute any legal or equitable action or proceeding before any non-Australian court of competent jurisdiction to obtain injunctive or other relief in the event that, in the opinion CSIRO, such action is necessary or desirable.