The Certrak App is provided by Certrak Pty Ltd, (ACN 622 294 740), whose registered address is Suite 202, Level 33, Australia Square, 264 George Street, SYDNEY,NSW, 2000 (“Certrak”).
By registering for the Certrak App and downloading the Certrak App application software onto your device you (“You”)are entering into a legally binding agreement (the “Agreement”) with Certrak in relation to Your use and access of the Certrak App, which shall be effective from the date on which You download the Certrak App application software to Your device (the “Effective Date”) for the Term.
1 SUBSCRIPTION
1.1 Certrak grants You a non-exclusive right to access the Certrak App for a free 14 day trial period (if you loginvia email) or 30 days (if you login via Linked In) (the “Trial Period”) starting the day on which you register for the Trial Period. Your access to and use of the Certrak App shall be on the terms and conditions of this Agreement.
1.2 If you wish to continue to access and use the Certrak App at the end of the Trial Period you will need to pay the subscription fees for the particular version of the Certrak App that You want to access and use. In consideration of the payment of the subscription fees Certrak grants You a non-exclusive right to access and use the Certrak App on terms and conditions of this Agreement.
1.3 The features available in the available versions of the Certrak App and the subscription fees payable for each different version shall be as set out on the Certrak website (www.certrak.com.au) from time to time and in the registration process.
1.4 Certrak reserves the right to change the features of the versions of the Certrak App, including moving features from version to version by giving You one month’s written notice. You may terminate Your access and use of the Certrak App if you do not wish to use the modified version of the Certrak App.
1.5 Other than as expressly permitted under this Agreement, You will not, during the Term or thereafter: commercially use or exploit the Certrak App; sell, lease, rent, licence or otherwise make available for use, the Certrak App to any third party; and/or reverse engineer, reverse compile or disassemble the Certrak App, generally, or with the intention of creating an online service the same as or similar to the Certrak App.
1.6 You agree that the Certrak App shall only be used by You to hold documents and documentary information relating to Your continuing professional development obligations and qualifications as a real estate agent. No other information or materials are permitted to be uploaded to the Certrak App and no other use is to be made of the Certrak App other than uses directly relating to Your continuing professional development obligations and qualifications as a real estate agent. Certrak reserves the right to suspend Your access to and use of the Certrak App and/or terminate this Agreement, at is sole discretion in the event that You are, in Certrak’s opinion, found to be in breach of the obligations under this clause. Nothing in this clause shall limit the operation of clause 4.5.
2 FINANCIALS
2.1 Unless otherwise indicated, subscription fees shall be due and payable monthly, in advance from the date of end of the Trial Period (the “Due Date”) or annually in advance from the date of the end of the Trial Period.
2.2 The amount of the subscription fees will be set out in the registration process.
2.3 Certrak reserves the right to vary the amount of the subscription fee, provided that a written notice will be sent to You via email notifying You of the variation. If You do not agree to the variation You may terminate Your access to and use of the Certrak App by not paying the subscription fee.
2.4 Certrak may suspend Your access to and use of the Certrak App in the event that You fail to pay the subscription fee by the Due Date, and may terminate this Agreement and your access to and use of the Certrak App in the event that You have not paid the subscription fees within 30 days after the Due Date.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 Certrak and its licensors are the owners or licensors of intellectual property rights in the Certrak App.
3.2 The CERTRAK name, Certrak logo and the Certrak App name are trade marks owned by Certrak.
4 TERM AND TERMINATION
4.1 Unless terminated in accordance with this clause 4, this Agreement shall commence on the Effective Date and shall continue for a one year period, after which time it will automatically renew for subsequent one year periods unless either Party provides notice to the other Party that it wishes to terminate the Agreement at the end of the one year period (on an anniversary of the Effective Date) by giving written notice via email 30 days on either side of the anniversary of the Effective Date (the “Term”).
4.2 Upon expiration of the Term or termination of this Agreement, the rights granted under clause 1 shall cease and You must cease any and all use of the Certrak App and Your access to and ability to use of the Certrak App will cease.
4.3 Certrak may terminate this Agreement immediately upon breach of any intermediate terms or conditions of this Agreement by You.
4.4 Certrak has the right to suspend or terminate Your access to, and use of, the Certrak App without cause upon giving You 30days’ notice in writing via email.
4.5 Upon request by You, and upon termination or expiration of this Agreement, Certrak shall provide You with a summary of Your current and historical continuing professional development data which is held on the Certrak App provided that Certrak shall not be obliged to provide any data that was added more than 7years ago.
4.6 No refunds of any subscription fees shall be paid by Certrak in the event of any termination of the Agreement or Your failure to terminate the Agreement upon its renewal.
5 WARRANTIES AND LIABILITY
5.1 You agree, acknowledge and understand that the Certrak App is an online organisational tool to be used to assist in the tracking, managing and monitoring of Your compliance with your continuing professional development obligations as a real estate agent.
5.2 You agree, acknowledge and understand that you shall have no claims against Certrak and Certrak shall not be liable for, Your inability to comply with, or demonstrate Your compliance with, Your continuing professional development obligations as a real estate agent due to the suspension or termination of your access and use of the Certrak App or Your inability to access and use the Certrak App or the unavailability of the Certrak App, for whatever reason.
5.3 Certrak expressly excludes any liability or responsibility for Your compliance with, or failure to comply with, Your continuing professional development and/or qualification obligations as a real estate agent.
5.4 Certrak makes no promises, undertakings, guarantees, warranties, indemnities or representations that Your use of the Certrak App will ensure Your compliance with Your continuing professional development and/or qualification obligations as a real estate agent.
5.5 The Certrak App is provided on an “as is” basis and Certrak makes no promises, undertakings, guarantees, warranties, indemnities or representations in relation to the Certrak App and, as such, to the fullest extent permitted at law, excludes any and all liability in relation to the Certrak App, Your use of it, its fitness for a particular purpose or any purpose, or that its use will not contravene the rights of any third party (including any intellectual property rights).
5.6 Neither Party shall be liable to the other Party for any:
5.6.1 indirect loss;
5.6.2 consequential loss;
5.6.3 loss of business;
5.6.4 loss of profits; or
5.6.5 for any loss that isnot reasonably foreseeable, whether arising in contract, tort (including for negligence, misrepresentation or breach of statutory duty) or as a result of any breach of this Agreement.
5.7 Certrak’s total aggregate liability under this Agreement shall not exceed limited AUD$500.00.
6 MISCELLANEOUS
6.1 Notwithstanding termination or expiration of this Agreement, the provisions of the following clauses shall survive termination of this Agreement: clauses 3, 4, 5, and 6.
6.2 This Agreement, as amended from time to time in accordance with the terms of this Agreement contains the entire Agreement between the Parties and shall supersede all previous agreements, arrangements and communications between the Parties, either oral or written, in relation to the arrangements between the Parties in relation to the subject matter of this Agreement.
6.3 You agree, acknowledge and understand that You have not entered into or continued with this Agreement in reliance on any promises, representations or undertakings made by the Certrak or made in relation to the Certrak App.
6.4 Certrak reserves the right to modify this Agreement and the terms of Your access to and use of any free version of the Certrak App, without notice.
6.5 Certrak reserves the right to modify this Agreement and the terms of Your access to and use of any paid for features or version of the Certrak App upon giving You one month’s written notice via email. You may terminate Your use of the paid for features or version of the Certrak App if you do not agree to any such modifications.
6.6 If any provisions of this Agreement should become fully or partially invalid or unenforceable for any reason whatsoever, or violate any applicable law, such provisions shall be deleted from this Agreement, and the remainder of this Agreement, to the extent permissible, shall be valid and binding as if such provision(s) were not included herein.
6.7 Any and all notices sent by Certrak under or pursuant to any provisions of this Agreement shall be sent to Your email address, being the email address that You provided upon Your initial registration for the Certrak App or as updated by You from time to time.
6.8 This Agreement shall be governed by the laws of New South Wales andthe exclusive jurisdiction of the New South Wales courts.