Terms

Ownright Pty Ltd (trading as Funda) Website and Services Terms

Effective from 28 March 2018

These terms and conditions (Terms) govern your use of the https://funda.com.au website (Website) and all other services made available to you through the Website (Services). Please read these terms and conditions carefully before using the https://funda.com.au website.

By using or accessing the Website or the Services, you agree to be bound by these Terms, which constitute a contract between you and Ownright Pty Ltd (“we”, “us” or “our”). If you do not agree to all of the provisions contained in these Terms, do not use the Website.

We reserve the right to revise and update these Terms at any time. You should periodically review these Terms. Your continued use of the Website constitutes your acceptance of, and agreement to, any revised Terms.

You must be at least 18 years old to use the Website. If you are under 18 years old, you must not create an account or use the Website. Please also see our Privacy Policy, which is available at (https://funda.com.au/privacy).

1. General

1.1. Definitions: In these Terms,

Access Mechanism has the meaning given in clause 2.2(b).

Claim means in respect of any person, any claim, action or proceeding, judgment, damage, loss, cost, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunction, specific performance, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

content includes information, software, photographic material, video, text, graphics, music, sounds, comments, messages, feedback, and all other content of any kind.

Login Details has the meaning given in clause 2.2(b).

Prohibited Act has the meaning given in clause 2.3.

Protected Content has the meaning given in clause 3.1.

Services means all services made available to you through the Website.

User Account has the meaning given in clause 2.1.

User Account Only Areas has the meaning given in clause 2.1.

User Account Details has the meaning given in clause 2.2(a).

Third Party Content has the meaning given in clause 4.1(d). Website means https://funda.com.au and all sites or pages hosted at or through https://funda.com.au.

1.2. Interpretation: Unless otherwise stated in these Terms:- (a) words importing the singular include the plural and vice versa; and any gender includes the other gender; (b) if a word or phrase is defined, cognate words and phrases have corresponding definitions; (c) a reference to a person or a party includes that person’s or party’s legal personal representative, executors, administrators, successors and permitted assigns; (d) a right includes a benefit, remedy, discretion, authority or power; (e) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation; (f) where there are two or more persons bound or to be bound by any agreement or obligation, such agreement or obligation binds each of those persons severally and any two or more of them jointly; (g) a reference to a document or agreement, including these Terms, includes a reference to that document or agreement as novated, altered or replaced from time to time; (h) a reference to any thing includes the whole or part of that thing and a reference to a group of things or persons includes each thing or person in that group; and (i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms.

2. User Account, Access to, and Use of Website and Services

2.1. In order to access certain areas of the Website, you must create a user account (User Account). Such areas are referred to in these Terms as “User Account Only Areas”. You must not access any User Account Only Area without a valid User Account.

2.2. In creating a User Account, you warrant and agree that:

(a) any information you provide as part of your user account, including (without limitation) your name, address and other identifying information is accurate, current and complete (User Account Details);

(b) you will keep confidential and not provide to any person all login details, including (without limitation) any username, password, and/or password hint(s) chosen by you or assigned to you by us (Login Details), and any other mechanism for accessing or logging on to the Website, User Account or User Account Only Area (Access Mechanism);

(c) you will not allow any other person to use your Login Details to access the Website, your User Account or the Services;

(d) we may rely on your User Account Details being accurate, complete and current unless and until you notify us that your User Account Details are no longer accurate, complete or current (as the case may be);

(e) you are solely responsible for all the activities that occur under your User Account, whether or not engaged in by you;

(f) you will comply with all conditions, usage restrictions or other requirements in respect of the Login Details (including any directions to use or stop using, temporarily or indefinitely, the Login Details) as notified or disclosed to you by us or any of our authorised representatives from time to time;

(g) you will immediately cease using any Login Details or Access Mechanism if we or any of our authorised representatives notify you or, if you become aware, that your permission to use those Login Details or Access Mechanism has been withdrawn or expires;

(h) you will immediately notify us if you become aware or suspect that the security of the Login Details or Access Mechanism has been compromised for any reason, or if you suspect someone else has used or is using your Login Details; and

(i) you must keep your User Account Details up to date during so long as your User Account remains active; and

(j) you have no proprietary interest of any kind in your User Account, Login Details or any Access Mechanism;

2.3. Prohibited Acts: You must not use the Website or Services, and must not allow your User Account to be used to do any of the following (each a Prohibited Act):

(a) post offensive, defamatory, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading, content of any kind;

(b) post content of any kind that poses, or may pose, a risk to any person;

(c) threaten, harass, humiliate or ridicule any person, or otherwise engage in unlawful conduct;

(d) post material of which you are not the lawful owner;

(e) post personal information about a person without their prior consent or breach any privacy law;

(f) infringe another person’s copyright, trade mark or any other intellectual property right; or

(g) access another person’s User Account or Login Details;

(h) knowingly transmit or use any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Website or the Services;

(i) interfere with or disrupt the proper and intended operation of the Website or the Services, or use any means of automatically searching or mining data from the Website; or

(j) attempt to do, or facilitate or encourage or assist another person to do, any Prohibited Act.

2.4. Suspension or termination of your User Account: We may disable, suspend or terminate your (or any other) User Account, Login Details and/or any Access Mechanism at any time without notice if:

(a) you notify us that you wish to terminate or suspend your User Account;

(b) your User Account becomes inactive (including, without limitation, if you have not logged in to your User Account for more than 30 consecutive days);

(c) we suspect (in our sole discretion) that your User Account Details or Login Details are out of date or inaccurate or that your Account, Login Details or the Access Mechanism have been compromised in any way;

(d) we believe (in our sole discretion) that you have engaged in, are engaging in, or are likely or intend to engage in a Prohibited Act, or your User Account has been, is being, or is likely to be, used to engage in a Prohibited Act;

(e) we consider (in our sole discretion) it is necessary in order to comply with any law or to protect the safety of any person.

2.5. Removal and moderation of content: We may remove from the Website and/or the Services at any time, without notice, content of any kind (whether or not posted by you) which we consider offensive, defamatory, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading or otherwise inappropriate, or otherwise for any reason in our sole and absolute discretion.

2.6. Your content, User Account Information and other material: Except as required under privacy law and our Privacy Policy, you agree that we have no obligation to store, retain or destroy your User Account, User Account Information or any other content uploaded or posted by you to, or through the Website or the Services, whether your User Account is active or has been suspended, terminated or otherwise.

3. Content and Intellectual Property

3.1. Limited licence to use content: Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access the Website, the Services and the content available for your personal, non-commercial use, provided that you comply fully with these Terms (Protected Content). You acknowledge that nothing in these Terms or your use of the Website or the Services grants to you any proprietary interest or right to sublicense any of Protected Content or any content you obtain from the Website, the Services or your use of them, including (without limitation) when it is downloaded to your computer or other device.

3.2. You acknowledge that the Website and Services contain content that is or may be protected by copyright, patents, trademarks or other intellectual property rights. You must not modify, publish, transmit, distribute, perform, purport to sell, create derivative works of, or in any way exploit, any Protected Content, whether in whole or in part, without our prior written consent.

3.3. Injunctions

You acknowledge that any breach by you of this clause 3 may cause damage to us which cannot adequately be remedied by damages and that if you breach or act in a way which threatens to breach this clause 3, we may seek injunctive relief against you.

3.5 Copyright Complaints

If you believe that your work has been copied, reproduced or used in a way that constitutes copyright infringement or are aware of another person doing so, please contact our designated copyright representative: Nathan Wright – [email protected].

4. Disclaimer, Limitation of Warranty, and Limitation of Liability

4.1. Disclaimer:

(a) The opinions, information and other content contained on the Website and the Services are for informational purposes only, are not intended as financial advice and are not a substitute for professional advice regarding your financial situation, or the benefits that a credit provider such as Funda could have for you or your small business.

(b) We make no representation that any information on the website is in every respect accurate, current, or complete. To the fullest extent permitted by law, we assume no responsibility for any error or omission in any content or information published on or available through the Website or the Services, or that it is suitable for your personal circumstances. You are encouraged to confirm any such information with other sources and make your own assessment of its reliability and suitability for your individual circumstances.

(c) External and Third Party Links and Sites: The Website and Services may contain links to external websites, and you may be offered a number of automatic links to other websites that may interest you (External and Third Party Links and Sites). We accept no responsibility for, or liability in respect of, and make no warranty whatsoever as to, the content, security, privacy practices, accessibility, or terms and conditions of External and Third Party Links and Sites. Any External and Third-Party Links and Sites included on our Website are meant for the convenience of users only and should not be construed as any endorsement, approval, recommendation or preference by Ownright Pty Ltd of the owners or operators of the external site, or of any information, products or services referred to on the external sites unless expressly indicated on the Website. You agree and acknowledge that if you access, use, or rely upon any External and Third Party Links and Sites you do so entirely at your own risk.

(d) Third Party Content: Other users of the Website and Services, third party advertisers and other third parties may from time to time post or publish information or content (including advertising material) on the Website or through the Services (Third Party Content). We make no representation whatsoever as to the accuracy, quality or otherwise in respect of any Third Party Content. You agree and acknowledge that any use or reliance upon any Third Party Content is entirely at your own risk.

(e) No duty to warn or advise: There are risks associated with the use of any credit service. You agree and acknowledge that the warnings set out on the Website, in the Services and these Terms are not advice or a comprehensive statement of risk and are not intended to be relied upon as such. To the extent permitted by law, you agree that nothing in any warning or other information set out or communicated in or through the Website or the Services or these Terms shall give rise to any duty to warn of any risk or any other matter, duty to advise or other duty of care.

4.2. Limitation of warranty: To the fullest extent permitted by law, and except as otherwise expressly specified, neither we, nor any of our officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers give any warranty of any kind, whether express or implied, about the Website, the Services or any content, material or representations posted on, through or with respect to the Website or the Services, or about any External and Third Party Links and Sites or Third Party Content.

4.3. Release: To the fullest extent permitted by law, you release and forever waive any and all Claims you may have against us, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers for any loss, damage, expense or injury (including any Claim) you sustain arising out of or in connection with your access to (or inability to access) or use of the Website or the Services or any External and Third Party Links and Sites or any Third Party Content.

4.4. Limitation of liability: To the fullest extent permitted by law you agree that:

(a) neither we, nor any of our officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers will be liable to you or any person for any Claim resulting from or arising out of:

i. your use or inability to use the Website or the Services, including (without limitation) their unavailability at any time or for any period, whether or not by reason of matters within our control or within the control of any vendor providing software or services support to us;

ii. unauthorised access or alterations of your transmissions to or from the Website by a third party;

iii. any viruses that may infect your computer equipment or other property whether by reason of your access to or use of the Website or Services, or otherwise;

iv. activities resulting from the loss or misuse of your User Account Details, Login Details or other Access Mechanism;

v. statements or conduct of any third party;

vi. any indirect or consequential loss, or any economic loss; or

vii. any other matter relating to the Website or the Services, except to the extent resulting from our gross negligence or wilful default;

Each of the limitations in clauses 4.4(a)i-vii is a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

(b) to the extent our liability and the liability of any of our officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers, is not otherwise excluded, or is unable to be excluded, that liability, howsoever arising (including any breach of these Terms or other agreement with you) and of whatever kind (whether based on breach of contract, tort, strict or product liability, breach of warranty or otherwise), shall be limited to direct damages.

4.5. The limitations on and exclusion of liability for damages in these Terms shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability or breach of warranty.

4.6. You acknowledge that your use of the Website and Services are entirely at your own risk, and you are responsible for taking all precautions you deem necessary or advisable to protect you against any Claim, risk, hazard, loss or damage that may arise from your use of the Website or the Services.

5. Indemnity

5.1. To the fullest extent permitted by law, you agree to indemnify, defend and forever hold harmless us, our officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers from and against all Claims, including reasonable legal costs, resulting from any breach of these Terms by or any activity related to your User Account or use of the Website or the Services (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct) by you and any liability for any Claim, whether direct, indirect, incidental, special and/or consequential, including loss of profits or income, suffered by us, or claims made against us, or any of our or their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers or you which result from your breach of these Terms, or your use of the Website or the Services.

5.2. Each of the indemnities in clause 5.1 is a separate obligation by you to us. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

6. Amendment, Variation or Addition to These Terms

We may amend, vary, revise, or modify (including by deleting or adding terms) these Terms at any time and without prior notice. By continuing to use the Website and/or the Services you agree to be bound by the amended Terms.

7. Privacy

(a) When you provide us with personal information to complete a transaction, verify your credit card or subscribe to membership, you are consenting to our collection and use of information provided for the specific purpose for which it is provided. Your personal information will be handled in accordance with our Privacy Policy http://funda.com.au/privacy. You may withdraw your consent at any time by contacting Nathan Wright, at the following email address: [email protected]

(b) We may disclose your personal information if required to do so by law or if you violate our Terms and Conditions of Use.

(c) We use and store cookies in accordance with our Privacy Policy.