AUSSIE HOUSE SWAP & CAR SWAP – TERMS AND CONDITIONS
Itchyfoot Pty Ltd ACN 154 572 577 (referred to as Aussie House Swap) provides an online introductory service (the Services) to home owners and vehicle owners (Owner) through which they are able to offer to other Owners the temporary right to use their home and vehicle in exchange for the same temporary right to use the home and vehicle of other Owner (an Exchange). The Services are available on the AUSSIE HOUSE SWAP website at http://www.aussiehouseswap.com.au/ (Site).
1. Contract
(a) These House Swap Terms and Conditions (Terms) form a binding legal agreement between Aussie House Swap, its directors, officers, employees, successors and assignees, and each person, organisation or entity using the Services. By using the Site and Services, each Owner agrees to comply with and be legally bound by these Terms. Please read the Terms carefully. If there are any questions, the Owner is encouraged to contact Aussie House Swap using the contact details at the end of these Terms.
(b) The Owner’s use of the Site and the Services indicates that:
(i) the Owner has had sufficient opportunity to access the Terms and contact Aussie House Swap;
(ii) the Owner has read, accepted and will comply with the Terms;
(iii) the Owner has legal capacity to enter into a contract for sale; and
(iv) the Owner is 18 years or older.
If this is not correct, or if the Owner does not agree to these Terms, the Owner is not permitted to use any of the Services.
(c) These Terms may be amended from time to time, without prior notice. Use of the Services following any such amendments will be deemed to be confirmation that the Owner accepts those amendments. Aussie House Swap recommends that each Owner check the current Terms, before continuing use of the Services. Aussie House Swap’s agents, employees and third parties do not have authority to change the Terms.
(d) These Terms supplement and incorporate Aussie House Swap’s policies and terms and conditions, including without limitation the Website Terms of Use and Privacy Policy posted on the Site.
(e) The Owner is also subject to:
(i) the PayPal Terms of Service including, without limitation, the User Agreement; and
(ii) the eWay Terms and Conditions.
(f) Aussie House Swap’s Privacy Policy sets out how Aussie House Swap collects, uses and protects the personal information of its Owners. Aussie House Swap’s Website Terms of Use govern your use of the Site. These documents are available on the Site.
2. Introductory Service Only
(a) Owners are able to create a listing (Listing) on the Site to offer an Exchange.
(b) Owners must set out all relevant information of an offer of Exchange in a Listing such as potential times and dates for when their home and/ or vehicle will be available and any other applicable terms and conditions.
(c) Owners can view Listings, and contact other Owners via the Site’s messaging system to make arrangements with other Owners.
(d) Each Owner understands and agrees that the Site is an online introductory platform only, and that Aussie House Swap’s responsibilities are limited to facilitating the availability of the Site and the Services. Aussie House Swap is not a party to any agreement entered into between Owners. Aussie House Swap is not a referrer or booking agent, and provides no such related services. Aussie House Swap has no control over the conduct of Owners, and any other Owners of the Site and the Services. Aussie House Swap disclaims all liability in this regard, as set out in these Terms.
(e) Any arrangement including any agreements for Exchange between Owners are solely between the Owners. It is strictly and expressly not part of the Owner’s agreement with Aussie House Swap.
(f) Aussie House Swap may, at the request of an Owner, provide a template form to the Owner to use in setting out their details with another Owner. Owners are under no obligation to use the template form. Aussie House Swap assumes no responsibility for the validity or effectiveness of any such agreement or form and is strictly and expressly not part of any such agreement.
(g) For the avoidance of doubt, Aussie House Swap assumes no responsibility for an Owner’s compliance with any applicable laws, rules and regulations or these Terms.
(h) Aussie House Swap reserves the right, at any time and without prior notice, to remove or disable access to any Account and/or Profile (as defined below) and/or Listing for any reason, including Accounts and/or Profiles (as defined below) and/or Listings that Aussie House Swap, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or Services.
3. Online Registration
(a) An Owner can freely browse and view the Site and Profiles/ Listings. An Owner must register on the Site and create an account (Account) to access some features on the Site and some Services, including making a Listing and contacting other Owners.
(b) Each Owner may only have one (1) Account on the Site although each Account may list more than one home and/ or vehicle and offers of Exchange.
(c) Basic information is required when registering on the Site for an Account. Each Owner is required to provide certain information including name, email address, and location and select a username and password.
(d) Each Owner agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Aussie House Swap reserves the right to suspend or terminate any Owner’s Account and their access to the Site and Services if any information provided to Aussie House Swap proves to be inaccurate, not current or incomplete.
(e) Information on the storage and security of your personal information can be found in our Privacy Policy and Website Terms of Use.
(f) It is the Owner’s responsibility to keep its Account details, username and password confidential. The Owner is liable for all activity on its Account. The Owner agrees that it will not disclose its password to any third party and that it will take sole responsibility for any activities or actions under its Account, whether or not it has authorised such activities or actions.
(g) The Owner will immediately notify Aussie House Swap of any unauthorised use of its Account.
4. Owner Profiles
(a) Owners who have created an Account are permitted to create Profiles/ Listings. The Owner’s Profile/ Listings for its use of the Site is created from the personal information it provides to Aussie House Swap (Profile). The Profile/ Listings does not disclose the Owner’s personal email unless provided by the Owner.
(b) Each Owner acknowledges and agrees that it is responsible for its own Profile/ Listings including any issues that may arise as a result of the Owner disclosing their personal email.
(c) Owners can access the Site to communicate with other Owners.
(d) Each Owner acknowledges and agrees that any communications entered into with another Owner is at their own risk. Aussie House Swap does not provide an Owner with and cannot guarantee that other Owners have genuine intentions.
(e) Each Owner should report to Aussie House Swap, any activities or requests of Owners which are, or which the Owner reasonably believes to be:
(i) suspicious;
(ii) inconsistent;
(iii) illegal; or
(iv) likely to have a negative effect on the reputation of Aussie House Swap, the Site, Services and/or an Owner.
(f) Each Owner acknowledges and agrees that while the Site allows Owners to communicate with each other, Owners are not permitted to share the contact information of other Owners.
5. Owner Warranties and Representations
(a) Each Owner represents and warrants that any content that it provides and Profile and Listing that it posts:
(i) will not breach any agreements it has entered into with any third parties;
(ii) will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any Owner in its local area and country; and
(iii) will not conflict with the rights of third parties.
(b) Each Owner represents and warrants that in relation to its home and vehicle:
(i) it has full comprehensive and current insurance policies and cover in place for their home and vehicle including insurance for any and all loss, liability and personal injury that may occur to any third party (including other Owner) that is occupying or using the home and/ or vehicle or which results from an act (or failure to act) of any third party (including other Owner) that is occupying or using the home and/ or vehicle during any period of Exchange. Note legal requirements in relation to home and vehicle insurance may be different in each local area, state, territory, province and/ or country. Owners are solely responsible for ensuring the legality and appropriateness of any insurance in their own legal jurisdiction;
(ii) that all land rates, property taxes, utilities, mortgage payments, body corporate fees, television/ radio licences, fire, police, ambulance and other emergency services levies, and all other levies, rates, taxes, charges, tolls and/ or tithes that are payable by the Owner are paid for and will be paid for during any period of Exchange;
(iii) that all fittings and appliances (as relevant) are in good working order immediately prior to the commencement of any period of Exchange; and
(iv) that it will be responsible for and bear the cost of any repairs required to be made to their house and/ or vehicle attributable to normal wear and tear including any fittings, appliances and contents (as relevant).
(c) Each Owner represents and warrants that in relation to any home and/ or vehicle it occupies and uses during Exchange:
(i) that they will be responsible for and bear the cost of any repairs required to be made to the house and/ or vehicle that are attributable to any neglect or misuse including any fittings, appliances and contents and will immediately report the required repairs to other Owner’s nominated agent (Owners Agent).
(ii) that they will immediately report to other Owner’s Agent any loss, liability and personal injury that occurs to any third party (including themselves) that is occupying or using the home and/ or vehicle or which results from an act (or failure to act) of any third party (including themselves) that is occupying or using the home and/ or vehicle during any period of Exchange;
(iii) that they will be responsible for maintaining any lawns, gardens and pools;
(iv) that they will be responsible for minor costs such as but not limited to replacing light globes;
(v) that they will keep the home and vehicle clean, tidy and in a good state of repair;
(i) that they will replace any broken items with items of equivalent use and quality;
(ii) that they will not sublet or rent out the home or vehicle;
(iii) that the home and vehicle will be securely locked at all times;
(iv) that they will not do anything, or authorise any third party to do anything that could terminate or invalidate any insurance cover for the home and/ or vehicle;
(v) that they will not smoke in the home or vehicle;
(vi) that they will forward any mail to other Owner’s Agent;
(vii) that they will following any period of Exchange, leave the house and vehicle clean, tidy and in a good state of repair; and
(viii) that they will following any period of Exchange, pay for any amounts that are reasonably due to be paid by them as a result of any of the above warranties and or representations.
(d) For the avoidance of doubt, Aussie House Swap assumes no responsibility for and makes no representations or warranties for an Owner’s compliance with any applicable laws, rules and regulations or these Terms including compliance with their warranties and representations as set out in this clause 5.
6. Owner Warranties and Representations for Vehicle Exchange
(a) Owners who are Exchanging their vehicles represent and warrant that in addition to the warranties and representations as set out in clause 5, in relation to (as relevant) their and each other’s vehicle:
(i) that it complies with all relevant legal and regulatory requirements for use;
(ii) that it is in good working condition;
(iii) that it has been recently serviced;
(iv) that they will provide the other Owner with documentation detailing information on the vehicles registration and insurance policy;
(v) that they will provide the other Owner with a list of their vehicles’ minor defects;
(vi) that other Owner’s vehicle will only be driven by the Owner unless otherwise agreed in writing;
(vii) that the Owner has the appropriate licences and documentation to legally drive the other Owners’ vehicle; and
(viii) that other Owner’s vehicle will be driven only on sealed roads;
(b) Owners who Exchange their vehicles represent and warrant that in addition to the above warranties and representations, in relation to other Owner’s vehicle:
(i) that they will immediately report to the other Owner’s Agent any accident or mechanical failure; and
(ii) that they will report any accident to the relevant authority.
(c) For the avoidance of doubt, Aussie House Swap assumes no responsibility for and makes no representations or warranties for an Owner’s compliance with any applicable laws, rules and regulations or these Terms including compliance with their warranties and representations as set out in this clause 6.
7. Owners Agent
(a) Each Owner must appoint an Owners Agent and must provide other Owner with the Owner’s Agent’s contact details.
(b) The Owners Agent is responsible for and must have authority to authorise any repairs to the Owner’s house and/ or vehicle irrespective of whether the Owner of other Owner is responsible for the cost of the repairs. Where other Owner is responsible for the cost of the repairs, the Owners Agent must provide an invoice of the costs and expenses incurred for the repairs.
(c) Owners will permit other Owners Agent to inspect the home and/ or vehicle with reasonable notice. Where an inspection is required as a result of an emergency no notice is required.
(d) For the avoidance of doubt, Aussie House Swap assumes no responsibility for and makes no representations or warranties for an Owner’s compliance with any applicable laws, rules and regulations or these Terms including compliance with their warranties and representations as set out in this clause 7.
8. Endorsements
(a) Owners may endorse another Owner (Endorsement).
(b) Endorsements can be viewed by any Owner. Endorsements will remain viewable until the relevant Owners’ Account, Profile and/ or Listing is removed or terminated.
(c) Owners must provide true, fair and accurate information in their Endorsement.
(d) If, in Aussie House Swap’s reasonable assessment, an Endorsement is untrue, unfair, inaccurate, offensive or inappropriate, Aussie House Swap may delete the Endorsement or ban the Owner from posting the Endorsement. Aussie House Swap does not undertake to review each Endorsement.
(e) To the fullest extent permitted by law, Aussie House Swap is not responsible for the content of any Endorsements.
9. Payments
(a) Owners and other Owners are required to pay the fees as set out on our Site (Fees).
(b) Each Owner agrees to pay the relevant Fees, including half-yearly, annually and biennially subscription fees (Subscription Fees), as relevant, in the currency specified on the Site, at the time that it creates an Account.
(c) Future Subscription Fees shall automatically be charged to an Owner’s debit card, credit card or PayPal account (details of which the Owner provides upon creating an Account) on a half-yearly, annual or biennial basis, depending on the type of subscription purchased.
(d) Goods and Services Tax (GST) will be charged where applicable.
(e) The Owner must not pay, or attempt to pay, for the Services through any fraudulent or unlawful means.
(f) In the absence of fraud or mistake, all payments made are final and each Owner agrees to satisfy all such payments made.
(g) If Aussie House Swap does not receive a Subscription Fee in full on its due date for any reason, the Owner will be notified of the unsuccessful payment, and until such time as the Subscription Fee is received in full by Aussie House Swap, the Owner will not have access to their Account or the Services.
(h) The Owner makes a payment by debit or credit card, the Owner warrants that the information provided to Aussie House Swap is true, accurate and complete, that the Owner is authorised to use the debit or credit card to make the payment, that the payment will be honoured by the card issuer, and that the Owner will maintain sufficient funds in the account to cover the Fees.
(i) Nothing prevents Aussie House Swap from taking any action necessary to recover any unpaid Fees. If the Owner fails to pay, the Owner’s information will be passed on for collection and or legal action. The Owner acknowledges and agrees that it is liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense. If the Owner at any time exceeds Aussie House Swap’s payment terms and as a result are passed on for collection and or legal action, Aussie House Swap may place a default against the Owner with a credit reporting agency.
(j) Aussie House Swap’s pricing structure or payment methods may be amended from time to time at its sole discretion.
10. Offers and Promotions
(a) Aussie House Swap may, from time to time, make offers or promotions which may be applicable to the Services.
(b) The conditions of such offers or promotions will be specified on the Site.
(c) The Owner acknowledges and agrees that Aussie House Swap may, at its sole discretion, remove or extend any offers or promotions, and Aussie House Swap will not be responsible or liable for any potential loss or damage which the Owner incurs as a result of the removal or extension of any offers or promotions.
11. House Swap Guarantee
(a) If an owner has not completed a house swap since registering with Aussie House Swap, we will offer a further 12 months membership for free. Once the owner has completed a house swap, the guarantee is void. If the owner completed a house swap in one year and does not complete a house swap in the following or any future years, the owner is ineligible for the guarantee.
(b) To be eligible for the 12 months free guarantee, the owner must have filled out their profile in full including photo’s. The owner must also have made a genuine attempt to secure a house swap within the previous year.
(c) The 12 months free guarantee is only available to an owner on a 12 or 24 month plan. Owners on a 6 month plan are ineligible for the guarantee.
12. Reward Credits
(a) Aussie House Swap may award Owners credit towards payment of their Fees (Reward Credits).
(b) Reward Credits can be earned by Owners as set out on our Site, and including, but not limited to:
(i) sending their first Endorsement;
(ii) achieving a Membership Badge (as defined below); and
(iii) referring a friend who becomes an Owner.
(c) When a Reward Credit is credited to an Owner’s Account, the Reward Credit will be automatically applied to reduce the cost of the Owner’s next Subscription Fee.
(d) Reward Credits are not transferrable or redeemable.
(e) If an Owner has earned a Reward Credit, but their membership to their Account has lapsed, the Reward Credit will remain on the Account until such time as the Owner re-establishes their membership to their Account. The Reward Credit will then be credited to payment of the re-establishment Fee.
(f) Aussie House Swap’s structure and method for Reward Credits and Membership Badges may be amended from time to time at its sole discretion.
13. Membership Badges
(a) Owners can earn membership badges reflecting their length of membership to Aussie House Swap (Membership Badges).
(b) Earning Membership Badges can result in Owners earning Reward Credits, as set out on our Site.
14. Dispute Resolution
(a) By using our Site and Services, each Owner agrees that any legal remedy or liability that they may seek to obtain for actions or omissions of an Owners or other third party, will be limited to a claim against an Owner or other third party, who caused harm to them. Aussie House Swap encourages Owners to communicate directly with the relevant Owners or third party to resolve any disputes.
(b) Aussie House Swap welcomes feedback from its Owners. Aussie House Swap seeks to resolve concerns quickly and effectively. If any Owner has any feedback or questions about the Services, please contact any member of the staff.
(c) If there are any complaints from an Owner, Aussie House Swap will aim to respond and provide a suitable solution within 45 days. If an Owner is not satisfied with Aussie House Swap’s response, the Owner and Aussie House Swap agree to the following dispute resolution procedure:
(i) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Owner and Aussie House Swap agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(ii) If a resolution cannot be agreed upon at the Initial Meeting, either the Owner or Aussie House Swap may refer the matter to a mediator. If the Owner and Aussie House Swap cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales, Australia to appoint a mediator. The mediator will decide the time and place for mediation. Each party to the dispute must attend the mediation in good faith, to seek to resolve the dispute.
(d) Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.
15. Cancellation of Registration
(a) If an Owner wishes to cancel its Account, it will need to do so by writing an email to admin@aussiehouseswap.com.au. Owners can also deactivate their Account at any time via the Site.
(b) No refunds will be made upon cancellation, however, we will not charge any further Subscription Fees to an Owner’s credit card or PayPal account from the time of cancellation.
16. Consumer Guarantees
(a) Consumer legislation in Australia including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) provides consumers with guarantees that cannot be excluded, restricted or modified (Rights). Similar consumer protection laws and regulations in other countries may provide consumers with similar guarantees.
(b) If the Owner is a consumer as defined in the ACL, the following notice applies to the Owner from Aussie House Swap: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from the Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
17. Intellectual Property
(a) All logos, slogans, content, designs, diagrams, drawings, graphics, images, layout, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, rights in circuit layouts (or similar rights), registered or unregistered trade marks, trade names, patent, know-how, trade secret and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed on the Site and Services, the layout and look of the Site, together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of these Terms and whether used or contained in the Site is owned, controlled or licensed to Aussie House Swap (or its affiliates and/or third party licensors as applicable).
(b) The Owner agrees that, as between the Owner and Aussie House Swap, Aussie House Swap owns or holds the relevant licence to all Intellectual Property rights in the Site and Services, and that nothing in these Terms constitutes a transfer of any Intellectual Property. The Intellectual Property, Site and Services are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary or industrial rights whether such rights are capable of being registered or not, and also may have security components that protect digital information only as authorised by Aussie House Swap or the owner of the content.
(c) Some Intellectual Property used in connection with the Site and Services are the trademarks of their respective owners (collectively Third Party Marks).
(d) Aussie House Swap’s Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Aussie House Swap or the applicable trademark holder or Intellectual Property owner.
(e) Owners of the Site do not obtain any interest or licence in the Intellectual Property or Third Party Marks without the prior written permission of Aussie House Swap or the applicable Intellectual Property owner. Owners may not do anything which interferes with or breaches the Intellectual Property rights.
18. Owner Licence
(a) Subject to these Terms, Aussie House Swap grants the Owner a personal, non-exclusive, non-transferable, limited and revocable licence to use the Site and Services for its own personal and/or non-commercial use only on a computer or mobile device owned or controlled by the Owner as permitted in accordance with these Terms (Owner Licence), and not to use the Site and Services in any other way or for any other purpose, apart from local fair dealing legislation in accordance with the Copyright Act 1968 (Cth). All other uses are prohibited without Aussie House Swap’s prior written consent.
(b) The right to use the Site and Services is licensed to the Owner and not being sold to the Owner. An Owner has no rights in the Site and Services other than to use it in accordance with these Terms.
(c) This Agreement and Owner Licence governs any updates to, or supplements or replacements for the Site and Services, unless separate Terms accompany such updates, supplements or replacements, in which case the separate Terms will apply.
19. Permitted and Prohibited Conduct
(a) The Owner is solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations that may apply to its use of the Site and Services. In connection with the Owner’s use of the Site and Services, the Owner may not and agrees that it will not:
(i) use the Site or Services for any commercial or other purposes that are not expressly permitted by these Terms;
(ii) register for more than one Account or register for an Account on behalf of another individual and/or entity;
(iii) use the Services to find another Owner and then complete, or assist another individual to complete, a transaction independent of the Services in order to circumvent the obligation to pay any fees related to Aussie House Swap’s provision of the Services;
(iv) post any Review or upload any content that is offensive, contains nudity or inappropriate language, contains racial or religious ranting or discrimination or defames another Owner, Profile or Listing;
(v) submit any false or misleading information;
(vi) as an Owner, offer an Exchange that it does not intend to honour or cannot provide;
(vii) as an Owner, make any offers to other Owners that it does not intend to honour;
(viii) violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
(ix) copy, store or otherwise access any information contained on the Site and Services or content for purposes not expressly permitted by these Terms;
(x) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
(xi) use the Site or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(xii) use the Site or Services in connection with the distribution of unsolicited commercial email, i.e. spam or advertisements;
(xiii) stalk or harass any other Owner or collect or store any personally identifiable information about any other Owner other than for purposes of transacting as an Owner on the Site;
(xiv) use, display, mirror or frame the Site, or any individual element within the Site, Services, Aussie House Swap’s name, any Aussie House Swap trademark, logo or other Intellectual Property, information, or the layout and design of any page or form contained on a page, without Aussie House Swap’s express written consent; or
(xv) advocate, encourage, or assist any third party in doing any of the foregoing.
20. Content
(a) The Site, Services, and Intellectual Property are protected by copyright, trademark, and other laws of Australia and international countries. The Owner acknowledges and agrees that the Site, Services and Intellectual Property, including all associated intellectual property rights are the exclusive property of Aussie House Swap and its licensors. The Owner will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site and Services, or Intellectual Property.
(b) The Owner must not post, upload, publish, submit or transmit any content that:
(iv) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(v) is fraudulent, false, misleading or deceptive;
(vi) denigrates Aussie House Swap, the Site, Services, or any other Owner;
(vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(viii) is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(ix) is violent or threatening or promotes violence or actions that are threatening to any other person; or
(x) promotes illegal or harmful activities or substances.
21. Owner Content
(a) Owners are permitted to post, upload, publish, submit or transmit relevant information and content (Owner Content). By making available any Owner Content or any Intellectual Property on or through the Site and Services, the Owner grants to Aussie House Swap a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the Owner Content and Intellectual Property, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such Owner Content and Intellectual Property on, through, or by means of the Site and Services.
(b) The Owner agrees that it is solely responsible for all Owner Content and Intellectual Property that it makes available through the Site and Services. The Owner represents and warrants that:
(i) it is either the sole and exclusive owner of all Owner Content and Intellectual Property that it makes available through the Site and Services, or that it has all rights, licences, consents and releases that are necessary to grant to Aussie House Swap the rights in such Owner Content or Intellectual Property, as contemplated under these Terms; and
(ii) neither the Owner Content nor the posting, uploading, publication, submission or transmittal of the Owner Content or Aussie House Swap’s use of the Owner Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(c) Aussie House Swap may at its sole discretion remove any Owner Content that is offensive or in breach of these Terms.
22. Disclaimers
(a) Aussie House Swap does not guarantee that Owners offers of Exchange will be accepted by any other Owners, nor does Aussie House Swap guarantee that Owners will be able to find desirable other Owners and their offers of Exchange or that Owners are compliant with these Terms.
(b) Aussie House Swap does not endorse any Owners, Profiles, or Listings including whether any Owner is compliant with these Terms. Aussie House Swap requires Owners to confirm that they have provided accurate information but does not otherwise perform any sort of background checks of Owners, and does not confirm, any Owners identity, Profile, Listing, or offers of Exchange.
(c) Aussie House Swap cannot and does not control the content contained in any Profiles or Listings or the condition, legality or suitability of any Owners or their offers of Exchange or their compliance with these Terms. Owners are responsible for determining the identity and suitability of other Owners and their offers of Exchange that they contact via the Services.
(d) Aussie House Swap accepts no responsibility for and makes no representations or warranties to the Owner or to any other person or entity as to the reliability, accuracy or completeness of the information contained on the Site including as to whether Owners are compliant with these Terms. Aussie House Swap disclaims any and all liability related to any and all Owners, Profiles, Listings, offers of Exchange.
(e) Aussie House Swap recommends all Owners check the identification of other Owners prior to an Exchange. Aussie House Swap also recommends all other Owners exercise due skill and care in verifying the identity of any Owners prior to an Exchange.
(f) By using the Site or Services, the Owner agrees that any legal remedy or liability that it seeks to obtain for actions or omissions of other Owners or other third parties will be limited to a claim against the other Owners or other third party who caused then harm. Aussie House Swap encourages the Owner to communicate directly with the relevant other Owner or third party on the Site and Services regarding any communications or arrangements made between them and to resolve any dispute between them.
(g) To the fullest extent allowable under applicable law, Aussie House Swap disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Site or Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors as well as to whether Owners are compliant with these Terms.
(h) For the avoidance of doubt, Aussie House Swap is not responsible for any duties, fees, taxation, visa or immigration matters associated under these Terms. Aussie House Swap advises that all Owners using the Site and Services should seek advice in relation to these matters.
(i) Each Owner and other Owner who uses the Site and the Services does so at their own risk and makes no representations or warranties for an Owner’s compliance with these Terms.
(j) Aussie House Swap excludes all express and implied conditions and warranties, except for the Owner’s Rights, to the fullest extent permitted by law, including but not limited to:
(i) Aussie House Swap expressly disclaims any implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in these Terms;
(ii) Aussie House Swap does not warrant that the Site, the Services, content on the Site (including pictures, videos, sound clips, resumes, links etc.), or the Owner’s access to the Site or the Services will be error free, that any defects will be corrected or that the Site or the server which stores and transmits material to the Owner is free of viruses or any other harmful components;
(iii) Aussie House Swap takes no responsibility for, and will not be liable for, the Site, the Services, the Owners, other Owners, other Owners Services and other Owners Listings, house, vehicle or house hold contents being unavailable, of a particular standard of workmanship, failing to meet the Profile description, failing to meet the Listing description, failing to meet the Owner’s needs, or being of less than merchantable quality;
(iv) Aussie House Swap will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special, consequential and/or incidental, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal, bodily injury, death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on the Owner’s information systems or costs of replacement goods, or otherwise, suffered by the Owner or claims made against the Owner, arising out of or in connection with the Site, Services, content on the Site, inability to access or use the Site, the Services, any Profile, any Listing, other Owners, the Terms, even if Aussie House Swap was expressly advised of the likelihood of such loss or damage; and
(v) ensuring an Owner’s compliance with these Terms.
(k) The Owner agrees not to attempt to impose liability on, or seek any legal remedy from Aussie House Swap with respect to such actions or omissions.
23. Limitation of Liability
(a) Aussie House Swap’s total liability arising out of or in connection with the Site, the Services or the Terms, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by the Owner to Aussie House Swap in the twelve (12) month period prior to the event giving rise to the liability, or sixty five dollars ($65) if no such payments have been made, as applicable.
(b) The limitations of damages set forth above are fundamental elements of the basis of the bargain between Aussie House Swap and the Owner. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to the Owner.
(c) This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these terms inure to the benefit of Aussie House Swap.
24. Indemnity
(a) Each Owner agrees to defend and indemnify and hold Aussie House Swap (and Aussie House Swap’s parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the Owner’s use of or access to the Services; any breach by the Owner of these Terms; any wilful, unlawful or negligent act or omission by the Owner; and any violation by the Owner of any applicable laws or the rights of any third party.
(b) Aussie House Swap reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Owner, in which event the Owner will cooperate in asserting any available defences.
(c) This defence and indemnification obligation will survive these Terms and the Owner’s use of the Site or Services. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the Owner, but may be assigned by Aussie House Swap without restriction.
25. General
(a) Accuracy: While Aussie House Swap will endeavour to keep the information up to date and correct, Aussie House Swap makes no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site for any particular purpose. The Owner hereby acknowledges that such information and materials may contain mistakes, inaccuracies or errors and Aussie House Swap expressly excludes any liability for such to the fullest extent permissible by law.
(b) Security: Aussie House Swap does not process, record or store credit card information on our servers. All credit card and PayPal payments are processed by a secured third party processor with Level 1 PCI DSS compliance.
(c) Termination: Aussie House Swap reserves the right to refuse supply of the Services required by any Owner, terminate any Owner’s Account, terminate its contract with any Owner, and remove or edit content on the Site at its sole discretion, without incurring any liability to the Owner. If Aussie House Swap decides to terminate an Owner’s Account any of the following may occur, with or without notice to the Owner: (a) the Owner’s Account will be deactivated, its password will be disabled and it will not be able to access the Site, Services, its Account or its Owner Content; (b) any pending or future offer of Exchange will be immediately terminated; (d) Aussie House Swap may communicate to the relevant other Owners or Owners that the Booking has been cancelled; (d) Aussie House Swap may refund the Owners in full, regardless of the cancellation and refund policy; and (e) the Owner will not be entitled to any compensation for Exchanges that were cancelled as a result of a suspension, deactivation or termination of their Account.
(e) Fraudulent Activities: Each Owner acknowledges and agrees that, in the event Aussie House Swap reasonably suspects that there are fraudulent activities occurring within the Site and Services, Aussie House Swap reserves the right to immediately terminate any Accounts involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
(f) Force Majeure: Aussie House Swap will not be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond its reasonable control.
(g) Notice: Any notice in connection with the Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
(h) Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by Aussie House Swap of any of the Terms shall be effective unless Aussie House Swap expressly states that it is a waiver and Aussie House Swap communicates it to the Owner in writing.
(i) Assignment: An Owner must not assign any rights and obligations under the Terms whether in whole or in part without Aussie House Swap’s prior written consent.
(j) Severability: If any of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
(l) Jurisdiction and Applicable Law: These Terms, use of this Site, the Services and any dispute arising out of any Owner’s use of the Site or Services is subject to the laws of New South Wales, Australia, and subject to the exclusive jurisdiction of the New South Wales, Australia courts. The Site may be accessed throughout Australia and overseas. Aussie House Swap makes no representation that the content of the Site complies with the laws (including intellectual property laws) of any country outside Australia. If an Owner accesses the Site from outside Australia, it does so as its own risk and are responsible for complying with the laws in the place where they accesses the Site.
(m) Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between Aussie House Swap and each Owner, and supersede any prior agreement, understanding or arrangement between Aussie House Swap and each Owner, whether oral or in writing.
For questions and notices, please contact:
Aussie House Swap - admin@aussiehouseswap.com.au
Itchyfoot Pty Ltd ACN 154 572 577
Last update: September 2017
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited.
