1. BACKGROUND AND DEFINITIONS
(a) These general terms and conditions for DIAKRIT products (the “General Terms”) shall apply to all orders of Products and any materials relating to the Products provided by DIAKRIT to the Customer. These General Terms constitute an integral part of the Agreement between DIAKRIT and the Customer.
(b) Unless the context clearly specifies or requires otherwise, the following terms and expressions shall have the meanings assigned to them below.
“Agreement” shall mean the agreement between DIAKRIT and the Customer consisting of the Customer’s order, DIAKRIT’s order confirmation, these General Terms and any other documentation referred to as being part of the agreement.
“business day” shall mean 8.30am to 5.30pm (Sydney time) on any day on which banks are open for trading in Sydney.
“Customer” shall mean the company ordering a Product from DIAKRIT.
“DIAKRIT” shall mean Diakrit Australia Pty Limited, ACN 611 722 546 of 2 Holt Street, Surry Hills NSW 2010.
“News” shall mean Nationwide News Pty Limited, ACN 008 438 828 or a related body corporate of Nationwide News Pty Ltd as nominated by that company from time to time.
“Products” shall mean the products (including any Software Products) in DIAKRIT’s service range, available at www.diakrit.com.au, such as D-Navigator, D-Showroom, D-Configurator, 2D Floorplans, 3D Floorplans, D-Furnish, 3D Renderings, 3D Interior Visualizations, 3D Panoramas, Photo Styling, Professional Photo Services, Video and Social Video as ordered by the Customer using the Online Ordering System.
“Result” shall mean any intellectual property rights which are generated by the use of the Products provided by DIAKRIT, including but not limited to trade marks, design, copyright and patents.
“Software Products” shall mean those Products which are based on a software solution provided by DIAKRIT such as D-Navigator, D-Showroom, D-Configurator, Furnish, Photo Styling or other similar software based product provided by DIAKRIT.
“Specification” shall mean the Product specification in the order system.
“User Content” shall mean the content provided by the Customer to DIAKRIT for use in relation to the ordered Products.
“Online Ordering System” shall mean DIAKRIT’s online ordering system and/or any delivery/CRM/listing or other system that is connected to DIAKRIT’s ordering platform.
(a) The Customer shall place its order with DIAKRIT via the Online Ordering System. An order is binding once it has been confirmed by DIAKRIT. The Customer has no right to cancel any order which has been confirmed by DIAKRIT, except as set forth in these General Terms.
(b) DIAKRIT shall deliver the Product(s) in accordance with the Specification applicable for the ordered Product(s).
(a) DIAKRIT reserves the right to make changes to the Products, agreed time schedule and prices, subject to DIAKRIT providing the Customer with at least thirty (30) days prior written notice thereof. In case the Customer does not accept such change, the Customer is entitled to cancel a placed order which will be affected by the change, by notifying DIAKRIT in writing thereof no later than the day the change would come into effect.
(b) If the Customer requests variations to the agreed Products and such variations require additional work by DIAKRIT, the Customer shall reimburse DIAKRIT for any costs, expenses or charges incurred by such work as agreed between the parties prior to the work commencing, subject to the issue by DIAKRIT to Customer of a valid invoice.
DIAKRIT undertakes to deliver the Product(s) on the terms set out in DIAKRIT’s order confirmation, or, in case the delivery terms for the relevant Product are set out in Appendix 1, in accordance with the delivery times for the Product(s) set out in Appendix 1, or as otherwise agreed by the parties in writing.
5. SPECIFIC PROVISIONS FOR FLOOR PLANS
(a) The delivery times set out in Appendix 1 for floorplans only apply if the complete and clear materials are received by DIAKRIT in accordance with section 5(b).
(b) The Customer is responsible for providing DIAKRIT, together with a placed order, a clear sketch of the property, which contains the information specified in the Online Ordering System to convert this into a floorplan.
6. SPECIFIC TERMS FOR PHOTOS
(a) DIAKRIT cannot guarantee the availability of photographers within a requested region. The Customer may request a photographer from another region than the region allocated and if this is to be provided then it is subject to the payment by the Customer of a fee consisting of the photographer’s reasonable travel expenses, as notified to the Customer prior to those expenses being incurred.
(b) DIAKRIT reserves the right to charge a cancellation fee as set out in Appendix 2 if:
(i) Less than 12 hours before the appointed time, the Customer cancels, postpones or delays any agreed photo session, or
(ii) DIAKRIT is unable to perform an ordered photo session due to an inability to access the property and/or building specified by the Customer (other than due to the negligence or lack of diligent and genuine effort by DIAKRIT or the photographer).
(c) If Customer wishes to cancel a booked photo session, then it may do so by the following means (subject always to clause 6(b)):
(i) up to 24 hours before the booked photo session via the Online Ordering System; or
(ii) by telephone or e-mail to Diakrit Australia on business days from 8.30 a.m. to 5.30 p.m. Monday-Friday, (Sydney Time). .
(d) If there is a delay in delivery of the ordered photo session due to factors beyond the control of DIAKRIT or DIAKRIT’s photographer (e.g. due to severe weather conditions or illness of the photographer) then, without any price reduction, the parties will agree to reschedule the photo session to the earliest convenience of both parties (acting reasonably) and DIAKRIT shall have no other liability in relation to the delay of the initial photo session. In such circumstances, DIAKRIT will endeavor to provide as much notice as reasonably possible to the Customer. DIAKRIT shall not be liable for any loss or damage suffered by the Customer arising from such postponement.
(a) DIAKRIT only offers corrections, modifications or changes of Products as set forth below.
(b) Any requests for corrections, modifications or changes of floorplans or photos need to be submitted using DIAKRIT’s correction tool. Corrections submitted in any other way will not be accepted by DIAKRIT.
(c) DIAKRIT aims to deliver corrections, modifications or changes, requested in accordance with this clause 7, in accordance with Appendix 1.
(d) DIAKRIT may charge a fee for any correction, modification or change made by the Customer in accordance with Appendix 2 (Correction & Retouch Charges) and otherwise as set forth in section 3(b) of these General Terms and Conditions.
(e) Corrections of floorplans and photos can be submitted to DIAKRIT using DIAKRIT’s correction tool up to thirty (30) days after the first delivery of the relevant floorplan/photo to the Customer.
8. THE CUSTOMER’S UNDERTAKING
(a) The Customer shall be solely responsible for its own User Content, and any consequences of uploading, posting or publishing such content. The Customer warrants and represents that the Customer has the necessary licenses, rights, consents and permissions to use and to authorize DIAKRIT to use all patent, trade mark, trade secret, copyright or other proprietary rights in and to any and all User Content for the delivery of the Products to the Customer.
(b) The Customer shall make any information or documentation available to DIAKRIT as instructed in the Online Ordering System during the process of placing an order and shall ensure that the information provided is correct.
(c) The Customer undertakes to ensure to download or produce a back-up copy locally (on their own device) of any floorplans or photos delivered by DIAKRIT. DIAKRIT shall not be responsible for providing any replacements of floorplans or photos for a period longer than six (6) months from the first delivery date.
(d) DIAKRIT shall not be liable for defects or delays caused by the Customer’s failure to comply with its obligations under these General Terms and in particular due to a failure to provide necessary information for the delivery of the Products or failure to provide correct information by the specified times.
9. NO WARRANTIES
Subject to clause 13, the Products are provided “as is” except as expressly provided in these General Terms
10. SPECIFIC TERMS RE SOFTWARE PRODUCTS
(a) Unless the parties have agreed otherwise, the Customer is granted a non-exclusive right for the term of this Agreement to use the Software Products in its own business only for the purpose of marketing, selling or renting real estate. The Customer may allow contractors to use the Software Products on its behalf on the same terms as are set out herein and the Customer remains liable for the acts or omissions of those contractors.
(b) The Customer may not copy, alter or reverse engineer software or related documentation that is included in the Software Products, or attempt to do so or assist others to do so, and shall follow any reasonable written instructions provided by DIAKRIT from time to time for the use of the Software Products.
(c) The Customer may not alter, remove or otherwise edit any statements contained within the Software Products to the effect that the intellectual property rights in the Software Products are owned by DIAKRIT or a related body corporate of DIAKRIT.
(d) DIAKRIT may, without prior notice, make changes to the Software Products, the method of providing the Software Products or implement the updates or new versions provided by DIAKRIT (including any Software Products provided by DIAKRIT’s licensor) in the Software Products provided such change does not materially denigrate the functionality of the Software Products. Where possible, DIAKRIT will provide reasonable prior notice of such change to the Customer.
(e) In circumstances where DIAKRIT makes a major update resulting in a new version/platform of the Software Product and the Customer still has a live project on the older version, the Customer will be offered to upgrade to the new platform for a discounted price. Should the Customer decide to remain on the older platform, DIAKRIT will stop supporting the older version six (6) months after written notice of the intended cessation of support has been provided to the Customer. After this period DIAKRIT cannot guarantee the functionality of the older version of the Software Product.
(f) Access to the Software Products may require that the Customer is complying with certain minimum requirements relating to software and hardware which will be stated in the Online Ordering System from time to time. It is the Customer’s responsibility to ensure that the Customer has the required software or hardware.
(g) This section 10 shall apply exclusively to the Software Products.
11. PRICES AND PAYMENT
(a) The prices for the Products payable by the Customer are as set out in DIAKRIT’s current price list as at the date an order is placed, unless the Customer and DIAKRIT have entered into a separate agreement thereon.
(b) All prices set out in this Agreement are inclusive of all fees and taxes, including goods and service tax (GST) and like taxes incurred in connection with the Products.
(c) Diakrit may appoint News or another third party to invoice customers on behalf of DIAKRIT.
(d) Unless otherwise indicated on the invoice, the terms of payment are thirty (30) days from the date of the invoice. Payment shall be made in Australian Dollars (AUD), unless otherwise agreed.
(e) Any dispute regarding invoice value must be raised promptly with DIAKRIT and no later than 90 days after the invoice date. After that time, the Customer will be deemed to have accepted that the full amount set out in the issued invoice is due and payable by the Customer.
(a) This clause 12 applies subject to clause 13.
(b) DIAKRIT is liable for defects in the delivered Product(s), only if such defects mean that the delivered Products materially do not conform to the Specification for the ordered Product(s).
(c) If the Customer claims that any Product is defective, the Customer must provide to DIAKRIT a written notice promptly after the defect has been or reasonably should have been noticed by the Customer. DIAKRIT shall only be liable for defects if DIAKRIT receives the notice within three (3) months of the date of delivery of the Product in question.
(d) In case of a defect in a delivered Product in accordance with section 12(b), DIAKRIT undertakes to promptly, and free of cost, provide services in order to correct such Product. Where this is not viable or commercially reasonable, DIAKRIT will refund the fees paid by the Customer in relation to that defective Product.
(e) DIAKRIT’s liability for defects is limited to what is set forth above and the Customer cannot make any other claims against DIAKRIT on the grounds of defects.
13. LIMITATION OF LIABILITY
(a) Nothing in these terms and conditions excludes or varies any rights or remedies under the Australian Consumer Law in the Competition and Consumer Act (2010) (Australian Consumer Law) which cannot be excluded, restricted or modified. However, DIAKRIT excludes all rights, remedies, guarantees, conditions and warranties in respect of goods or services from a Customer’s use of or acquisition of or in relation to the ordering or booking of any Product whether based in statute, common law or otherwise to the extent permitted by law. To the fullest extent possible and subject to DIAKRIT’s liabilities and obligations under the Australian Consumer Law, the remaining provisions of this section 13 shall apply.
(b) Subject to section 13(a), the parties’ liability under any cause of action arising under these General Terms or under any indemnity contained in these General Terms, shall in no event exceed the amount of the fees paid or payable by the Customer for Products delivered by DIAKRIT under the Agreement.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 13(a), THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.
(d) Subject to section 13(a), DIAKRIT’s liability for a breach of a term or guarantee implied by law is limited at DIAKRIT’s discretion, to the supply of the Product again or payment for the cost of having the Product supplied again.
(e) Subject to section 13(a), DIAKRIT has no responsibility or liability to Customer in relation to any failure of telecommunications services or systems which affect the receipt by DIAKRIT or delivery by DIAKRIT to Customer of any material, a notice or communication of any kind.
Both parties undertake to obtain and maintain, at its own expense, adequate and suitable insurance to cover its liability under this Agreement.
15. INTELLECTUALLY PROPERTY RIGHTS
(a) The Software Products provided by DIAKRIT under these General Terms will fully remain the property of DIAKRIT or its licensors. Unless otherwise agreed between the parties, DIAKRIT or DIAKRIT’s licensor shall own all rights to the Products and to the Result. The Customer shall not acquire any intellectual property right or other rights to the Products or to use the Products by means of this Agreement except as expressly set out in clause 10.
(b) No program, documentation or subsequent upgrade thereof may be disclosed to any third party, without the prior written consent by DIAKRIT, nor may they be copied, reverse engineered or otherwise duplicated even for the Customer’s internal needs, except as permitted by law.
(c) For programs and documentation created and delivered at the Customer’s request, DIAKRIT may grant the Customer a license, on terms to be agreed, for non-exclusive and non-assignable exploitation.
(d) The Customer shall immediately and in writing notify DIAKRIT if a third party addresses any claim towards the Customer relating to or asserting a claim that the Products and/or Result infringe upon a third party’s intellectual property rights. Diakrit will indemnify the Customer in relation to all direct costs and losses arising from such claim provided that the Customer complies with the obligations in this clause 15, allows Diakrit to run the settlement or defense of any such claim and provides all assistance and co-operation as requested by Diakrit (at Diakrit’s expense). Despite the foregoing, Diakrit will have no responsibility or liability if the claim arises due to a breach of this or any other agreement between Diakrit and the Customer or a modification to the Products or materials not authorized (in writing) by Diakrit or a use not licensed by Diakrit.
(e) Should such infringement conclusively exist or if, according to DIAKRIT’s own assessment, it is probable that such infringement exists, DIAKRIT shall at its own expense and at its own discretion either (i) ensure the Customer’s right to continue to use said Products/Result, (ii) substitute the Products/Result with another equivalent Product/Result whose use shall not constitute any infringement, or (iii) change the Products/Result to ensure that no infringement exists without materially derogating from the quality or benefits to the Customer of the Product/Result, or (iv) terminate this Agreement and refund any prepaid monies to the Customer in relation to services or Products not delivered.
(f) Despite anything else, DIAKRIT is not liable for any infringement or alleged infringement upon a third party’s intellectual property right by the Result if DIAKRIT has modified, created or produced the Result according to the Customer’s wishes, instruction, specification or design. The Customer shall indemnify DIAKRIT against any claim, lawsuit or other legal proceeding which may arise following an actual or alleged infringement of such Result and for each loss, cost, damage and expense which DIAKRIT incurs accordingly.
(g) In case of any third party owned intellectual property included in the Software Products (such as a third party application) (“third party applications”), the Customer may only use such third party applications in accordance with the licensing terms issued by DIAKRIT’s licensor and notified prior to use to Customer by DIAKRIT (whether in these terms and conditions or through the Online Ordering System). Subject to clause 13, with respect to third party applications:
(i) DIAKRIT’s liability for faults or intellectual property infringements is restricted to an obligation to report the fault/infringement to DIAKRIT’s licensor immediately;
(ii) DIAKRIT has no other responsibility for fault or infringement in relation to third party applications. If it is finally decided that infringement has occurred or if it is likely, in the opinion of DIAKRIT, that such infringement has occurred, and DIAKRIT’s licensor does not take the necessary action, DIAKRIT may terminate this Agreement with three (3) months’ notice.
16. FORCE MAJEURE
If and to the extent that either party’s performance of its obligations under this Agreement is made unreasonably onerous or is impeded by circumstances beyond its reasonable control including general labor disputes, war, fire, lightning, acts of terrorism, natural disasters, restrictions in energy supplies, amendments to regulations issued by governmental authorities, intervention by governmental authorities and faults or delays in services by sub-contractors caused by any such circumstances referred to in this clause, such party shall be released from liability in damages and any other penalties. A party intending to claim relief by reason of any such circumstance as referred to in this clause shall without undue delay notify the other party in writing accordingly. If a party’s performance is materially prevented for more than three (3) months as a result of any circumstance as referred to in this clause, the other party shall be entitled to cancel an order in writing with immediate effect.
All information which is not publicly available, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a party or to any of its business matters, which has been disclosed or may be disclosed to the other party (the “Receiving Party”) or which the Receiving Party has or may otherwise become aware of in connection with this Agreement, shall during the term of this Agreement and for a period of five (5) years after its termination for whatever reason be kept strictly confidential by the Receiving Party and not be used for any other purpose than the performance or enforcement of this Agreement, nor be disclosed to any third party without the prior written consent of the other party (such consent not to be unreasonably withheld). The obligation of confidentiality does not apply when the Receiving Party is required by law, regulation or a governmental decision to disclose information or discloses it to an external adviser or auditor on a need to know confidential basis.
18. PREMATURE TERMINATION OF THE AGREEMENT
(a) Each party shall have the right to terminate the Agreement immediately by giving written notice to that effect to the other party (i) if the other party should commit a material breach of contract and neglect to remedy such breach of contract within thirty (30) days after receipt of written notice to that effect, or (ii) if the other party should declare himself insolvent, enter into liquidation, be declared bankrupt, initialize company reorganization, enter into composition proceedings or otherwise be considered as insolvent. The notice of termination shall be given without delay once the breach of contract becomes known or should have become known to the aggrieved party.
(b) In addition to the provisions stated above DIAKRIT shall at all times have the right to terminate the Agreement with immediate effect by giving written notice to that effect to the Customer if monies owing to Diakrit under an Order by the Customer remain unpaid for at least 14 days after DIAKRIT provides written notice to the Customer that such monies are outstanding.
(a) Terms used in this clause have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999.
(c) If GST is imposed on any supply made under or in accordance with this Master Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Master Agreement.
(d) If this Master Agreement requires a Party to pay for, reimburse or contribute to any expense, loss or outgoing (reimbursable expense) suffered or incurred by another Party, the amount required to be paid, reimbursed or contributed by the first Party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other Party is entitled in respect of the reimbursable expense plus any GST payable by the other Party.
(a) DIAKRIT reserves the right to change these General Terms at all times. Any changes to these General Terms will be posted in the Online Ordering System, and will become valid thirty (30) days after DIAKRIT has informed the Customer of the changes by posting the new General Terms in the Online Ordering System. A Customer may cancel any order which it has placed and which would become subject to such amended General Term by notifying DIAKRIT in writing thereof no later than the day the change would come into effect.
(b) If any provision in these General Terms is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permitted by applicable law.
(c) DIAKRIT shall have the right to engage a sub-contractor to fulfill its obligations under the Agreement. Should DIAKRIT engage a subcontractor DIAKRIT shall be liable for such sub-contractors as for its own obligations.
(d) Any exemptions agreed upon regarding these General Terms shall be in writing and be duly signed by DIAKRIT and the Customer in order to be valid. Any general terms and conditions from the Customer shall only apply if approved by DIAKRIT in writing.
21. DISPUTES AND APPLICABLE LAW
(a) These terms and conditions are governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of that state.
(b) Except as provided under this section 21, a Party must not start arbitration or court proceedings in relation to a dispute arising under an order or these terms and conditions unless it has complied with this section 21.
(c) The Parties will meet within seven days after the date on which a Party has delivered a written notice to the other declaring the dispute. If the Parties fail to meet within fourteen days, or failing resolution of the dispute at the meeting, the Parties will agree on appointment of a mediator having industry knowledge and expertise to facilitate resolution. Failing agreement on such appointment, either Party may apply to the President or other appropriate officer of the Law Society (or equivalent body) for the State of New South Wales to appoint a mediator. The dispute will then be referred to the mediator for resolution and the parties must try their best to resolve the dispute within a further seven days of the appointment.
(d) The role of the mediator is to assist in negotiating a resolution of the dispute. The mediator may not make a decision that is binding on the Parties unless they have so agreed in writing. The Parties cannot be represented by lawyers at any mediation meeting.
(e) Any information or documents disclosed by a Party in attempting to resolve the dispute must be kept confidential and may not be used except to attempt to resolve the dispute in the course of the mediation.
(f) Each Party must bear its own costs of complying with this clause. The Parties must bear equally the costs of the mediator.
(g) After the expiration of the second seven-day period referred to in section 21(c), either party may terminate the mediation process at any time by giving notice to the other Party.
(h) The Parties will continue to perform their obligations under this Agreement pending the resolution of any dispute referred to mediation under this clause.
(i) Nothing in this clause affects in any way the rights of a Party to seek urgent interim or interlocutory relief.
(j) If a Party fails to comply with this clause or refuses to meet or otherwise blocks the process set out in this clause, the other Party need not comply with this clause before referring the relevant Dispute to mediation or commencing proceedings in any court or tribunal of competent jurisdiction.
APPENDIX 1 – DELIVERY TIMES FOR DIAKRIT PRODUCTS (SINGLE ORDERS)
Below delivery times are applicable if nothing else is agreed in writing with DIAKRIT AUSTRALIA PTY LTD.
|DIAKRIT PRODUCT||REGULAR ORDER||EXPRESS ORDER|
|Floorplans/D-Furnish||Within 24 hours on the next business day from time of placement*||Within 6 hours on business days|
|Photos/Additional photos/Social Video/Day to Night/Evening photos||Within 24 hours on the next business day commencing at the end of the photo shoot||Before the end of the same business day**|
|Drones and video services||Within 72 hours on business days, commencing at the end of the photo shoot||N/A|
|Photo styling||Within 48 hours on the next business day commencing at the end of the photo shoot||N/A|
|Floorplan corrections||The same business day***||N/A|
|Photo corrections||Within 6 business hours****||N/A|
|Photo retouch requests||Within 24 hours on the next business day from time of placement||N/A|
*For floorplan orders where an onsite measurement is required, the 24-hour delivery time commences at the completion of the performed onsite measurement.
**Provided that the ordered photo shoot is completed by 10 a.m., Monday – Friday
***Floorplan corrections sent to DIAKRIT prior to 2 p.m. on business days will be delivered on that same day. Corrections sent to DIAKRIT after 2 p.m. will be delivered the following business day by 12 p.m.
****Photo corrections sent to DIAKRIT prior to 12 p.m. on business days will be delivered within 6 hours on that same day. Corrections sent to DIAKRIT after 12 p.m. will be delivered within 6 business hours and will therefore be delivered the following business day.
DIAKRIT strives to deliver the Products in accordance within the time frames provided above. However, DIAKRIT reserves the right to deliver outside these times, e.g. in respect of bulk orders or otherwise due to unforeseen circumstances deemed by DIAKRIT.
APPENDIX 2 – CORRECTION & RETOUCH CHARGES
DIAKRIT will not charge for correction requests where the error is on the part of DIAKRIT.
DIAKRIT reserves the right to charge for each individual correction request where the error is on the part of the customer, or due to lacking / incorrect / unclear / erroneous material having been provided to DIAKRIT without negligence of DIAKRIT.
A retouch fee will be charged for removing wires, dirt or other details that are not included in DIAKRIT’s standard photo editing.
Photo session Cancellation fee for less than 12 hours’ notice – $99 (incl GST)