Subscription Agreement

This agreement is between ListingMate (ABN 65 809 392 374) (ListingMate, we, us) and the agency that signs up for ListingMate online or signs an Order Form (Customer, you). It starts on the date the Customer starts a free trial, chooses a plan online, or signs an Order Form, whichever is first (Start Date).

1. Definitions

1.1 In this agreement:

• Agreement means these terms, the Order Form and the Schedules.
• AI Output means content generated by the Platform, including captions, listing copy, images, video and audio.
• Authorised User means an employee or contractor of the Customer, or a person the Customer allows, who has a login to the Platform.
• Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
• Confidential Information has the meaning in clause 10.
• Connected Account means a third-party account the Customer links to the Platform, such as a Meta business account, a CRM such as AgentBox, or a listing feed.
• Customer Data means data the Customer or its Authorised Users put into the Platform, data received from Connected Accounts, and AI Output, but not Aggregated Data.
• Aggregated Data means data about use of the Platform that has been combined and de-identified so it does not identify the Customer or any individual.
• Fees means the fees set out in the Order Form.
• Intellectual Property Rights means all copyright, trade marks, designs, patents, confidential information, know-how and similar rights anywhere in the world, whether registered or not.
• Order Form means the plan, Fees and start date the Customer accepts when it signs up or chooses a plan online, or a signed order form agreed directly with ListingMate.
• Personal Information has the meaning given in the Privacy Act 1988 (Cth).
• Platform means the ListingMate software service, hosted by us and accessed online, and its documentation.
• Schedules means the Data Processing Schedule, the AI Output Schedule and, if selected in the Order Form, the White-label Schedule.
• Services means access to the Platform and any setup, onboarding or support services listed in the Order Form.

1.2 Headings are for convenience only. "Including" means "including without limitation". All amounts are in Australian dollars.

2. The Services

2.1 Access. From the Start Date, we give the Customer a non-exclusive, non-transferable right for its Authorised Users to access and use the Platform for the Customer's own real estate business during the term.

2.2 Setup. We will carry out the setup described in the Order Form, including connecting listing feeds. The Customer will give us the information, access and help we reasonably need. We are not responsible for delays caused by the Customer not doing so. Any help or advice we give during setup or support is about using the Platform, and is not legal, compliance or other professional advice.

2.3 Support. We will provide email support during Business Hours (9am to 5pm Melbourne time on Business Days) and aim to respond within one Business Day.

2.4 Availability. We will use reasonable efforts to keep the Platform available at all times, except for planned maintenance (which we will try to schedule outside Business Hours and give notice of) and events outside our reasonable control. We do not promise the Platform will be uninterrupted or error-free.

2.5 Changes to the Platform. We may improve and update the Platform. We will not make a change that materially reduces the core features the Customer has paid for during a paid period. If we remove a core feature, we will give at least 30 days' notice and the Customer may end the Agreement under clause 13.4.

2.6 Third-party services. The Platform relies on third-party services, including hosting, AI model providers and social media platforms. We choose reputable providers, but we do not control them and are not responsible for their outages or changes to their rules.

2.7 Free trial. A new Customer may get a free trial for the period and with the limits shown when it signs up. No Fees are charged during the trial. When the trial ends, nothing new is published and no new campaigns start until the Customer chooses a plan. The Customer's data is kept, as set out in clause 6.6.

3. Connected Accounts

3.1 To use some features, the Customer must link Connected Accounts. The Customer confirms it is allowed to link each Connected Account, that each Connected Account is in good standing, and to let us access the data in it for the purpose of providing the Services.

3.2 Connected Accounts are governed by the Customer's own agreements with those providers (for example, Meta's terms for Facebook and Instagram). The Customer must comply with those terms.

3.3 We access Connected Accounts only through the authorisation methods the provider supports, and only to provide the Services. We do not ask the Customer to give us its passwords for social media accounts.

3.4 If a provider suspends, limits or changes a Connected Account or its interface, we will tell the Customer as soon as practical and work with the Customer on a fix. We are not liable for the provider's actions.

4. Customer responsibilities

4.1 The Customer must:

1. keep login details secure and make sure each Authorised User has their own login;
2. tell us promptly if it becomes aware of any unauthorised access to its account;
3. make sure its Authorised Users comply with this Agreement (the Customer is responsible for what they do on the Platform);
4. comply with all laws that apply to its use of the Services, including the Australian Consumer Law, the Estate Agents Act 1980 (Vic) or the equivalent law where it operates, the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth); and
5. check AI Output before it is published, as set out in the AI Output Schedule.

4.2 The Customer must not:

1. let anyone other than Authorised Users use the Platform (except as allowed by the White-label Schedule);
2. copy, modify, reverse engineer or try to extract the source code of the Platform, except as the law allows;
3. use the Platform to publish content that is false, misleading, defamatory, discriminatory or obscene, or that infringes anyone's rights, including their privacy;
4. upload malicious code or try to get around the Platform's security or usage limits; or
5. use the Platform to build a competing product.

4.3 We may monitor use of the Platform to keep it secure, bill correctly and check that it is used in line with this Agreement.

5. Fees and payment

5.1 The Customer will pay the Fees set out in the Order Form, monthly in advance, by card through our payment provider (currently Stripe), unless the Order Form says otherwise.

5.2 Fees are exclusive of GST unless stated otherwise. We will issue a tax invoice for each payment.

5.3 If a payment fails, our payment provider will retry it and we will notify the Customer. If the amount is still unpaid 14 days after that notice, we may pause publishing and new campaigns under clause 12 until it is paid. The Customer's data is kept while access is paused.

5.4 We may change the Fees by giving at least 30 days' written notice. The change applies from the next billing period after the notice ends. If the Customer does not accept the change, it may end the Agreement before the new Fees apply, without any early termination fee.

5.5 Fees already paid are not refundable, except where this Agreement or the law says otherwise, or where we end the Agreement without cause, in which case we will refund Fees paid for any period after the end date.

5.6 We may charge interest on amounts more than 30 days overdue, from the due date until paid, at the rate fixed under the Penalty Interest Rates Act 1983 (Vic).

6. Customer Data and privacy

6.1 Ownership. As between the parties, the Customer owns the Customer Data.

6.2 Licence to us. The Customer gives us a non-exclusive, royalty-free licence to use, copy, store, modify and transmit Customer Data during the term only as needed to provide, secure and support the Services.

6.3 Aggregated Data. We may create and use Aggregated Data to run and improve the Platform. We will not publish or share Aggregated Data in a way that identifies the Customer or any individual.

6.4 AI model training. We will not use Customer Data to train, fine-tune or improve any AI model, whether ours or a third party's, unless that is needed to provide the Services to the Customer as it has asked, or the Customer agrees in writing. We will require our AI model providers not to use Customer Data to train their own models.

6.5 Personal Information. Each party will comply with the Privacy Act 1988 (Cth) to the extent it applies to that party. The Data Processing Schedule sets out how we handle Personal Information on the Customer's behalf.

6.6 Data when a plan ends. When a trial or paid plan ends, we keep the Customer Data so the Customer can pick up where it left off if it chooses a plan again. At any time, the Customer may export its Customer Data using the Platform's export tools, ask us for a copy in a common format, or ask us to delete it. We will delete it within 30 days of a request, except where the law requires us to keep it or it is held in routine backups that are deleted on their normal cycle. If an account has had no active plan for 12 months, we may delete its Customer Data after giving 30 days' notice.

7. Intellectual property

7.1 We and our licensors own the Platform, its code, design, templates, workflows and all improvements to it, including improvements made using feedback from the Customer. This includes know-how, integration code, prompts and templates we develop while setting up or supporting the Customer (for example, to connect a listing feed), which we may reuse for other customers as long as they do not contain the Customer's Customer Data or Confidential Information. Nothing in this Agreement transfers those rights to the Customer.

7.2 The Customer owns, or has the right to use, its brand, logos, fonts, photos, floor plans and other materials it supplies. It gives us a licence to use those materials only to provide the Services.

7.3 Ownership of AI Output is dealt with in the AI Output Schedule.

7.4 If the Customer gives us suggestions or feedback, we may use them freely without paying the Customer. We will not name the Customer as the source without its consent.

8. Warranties and the Australian Consumer Law

8.1 Each party warrants that it has the authority to enter into this Agreement, that it does not need anyone else's approval to do so, and that doing so does not breach any law or other agreement it is bound by.

8.2 We warrant that we will provide the Services with due care and skill, and that the Platform will perform materially as described in its documentation.

8.3 The Customer warrants that it has the rights and consents needed for us to use Customer Data and supplied materials, including any font files it uploads, as this Agreement allows.

8.4 Nothing in this Agreement excludes, restricts or changes any right or remedy, or any guarantee, warranty or term, that cannot lawfully be excluded, including the consumer guarantees in the Australian Consumer Law (Non-excludable Rights).

8.5 Where the law allows us to limit our liability for breach of a Non-excludable Right, our liability is limited, at our choice, to supplying the Services again or paying the cost of having them supplied again.

8.6 Apart from the warranties in this clause 8 and the Non-excludable Rights, we do not give any other warranties about the Services, including that AI Output will be accurate, complete or fit for any purpose.

9. Liability

9.1 Mutual cap. Subject to clauses 8.4 and 9.3, each party's total liability to the other under or in connection with this Agreement is limited to the total Fees paid or payable by the Customer in the 12 months before the event giving rise to the claim.

9.2 Indirect loss. Subject to clause 9.3, neither party is liable to the other for loss of profit, revenue, opportunity or goodwill, or for indirect or consequential loss, however caused.

9.3 Exceptions. The limits in clauses 9.1 and 9.2 do not apply to:

1. a party's liability under an indemnity in clause 11, or for infringing or misusing the other party's Intellectual Property Rights;
2. a party's breach of clause 10 (Confidentiality) or of the Data Processing Schedule, which is instead capped at two times the amount in clause 9.1;
3. the Customer's obligation to pay Fees; or
4. liability for fraud, wilful misconduct, death or personal injury.

9.4 Reduction. Each party's liability is reduced to the extent the other party, or its personnel, caused or contributed to the loss.

9.5 Mitigation. Each party must take reasonable steps to reduce any loss it suffers.

10. Confidentiality

10.1 Confidential Information means information of a party that is marked confidential, or that a reasonable person would understand to be confidential, including the terms of this Agreement, pricing, business plans, client lists and, in our case, the non-public parts of the Platform.

10.2 Each party must keep the other's Confidential Information confidential and use it only for the purposes of this Agreement. It may share it with its personnel, advisers and subcontractors who need to know it and are bound by similar confidentiality duties.

10.3 This clause does not apply to information that is public (other than through a breach), was already lawfully known to the receiving party, was independently developed, or must be disclosed by law or a stock exchange rule. A party may also disclose it to the extent needed to enforce its rights under this Agreement. If disclosure is required by law, the receiving party will tell the other party first where it lawfully can.

10.4 On request after this Agreement ends, each party will return or destroy the other's Confidential Information and confirm in writing that it has done so, except copies it must keep by law or in routine backups.

11. Indemnities

11.1 By us. We will indemnify the Customer against third-party claims that the Platform, used as this Agreement allows, infringes that third party's Australian Intellectual Property Rights. This does not cover claims caused by Customer Data, Customer-supplied materials, AI Output (which is covered by the AI Output Schedule), or the Customer combining the Platform with things we did not supply. If such a claim is made or likely, we may get the right for the Customer to keep using the Platform, change the Platform so it does not infringe, or end the Agreement and refund prepaid Fees for the unused period. Subject to clause 8.4, this clause 11.1 sets out our entire liability for claims that the Platform infringes a third party's rights.

11.2 By the Customer. The Customer will indemnify us against third-party claims arising from:

1. Customer Data or materials the Customer supplies infringing someone's rights or breaching the law;
2. content the Customer or its Authorised Users approve and publish through the Platform, including AI Output; or
3. a dispute between the Customer and a Connected Account provider.

11.3 Process. The party seeking the indemnity must notify the other promptly, let the other party control the defence and settlement (but no settlement may admit fault for the indemnified party without its consent), and give reasonable help at the other party's cost. The party seeking the indemnity may take part in the defence at its own cost, with its own lawyers.

12. Suspension

12.1 We may suspend the Customer's access, in whole or in part:

1. under clause 5.3 for unpaid Fees;
2. if we reasonably believe the Customer's use poses a security risk or is likely to cause us or others legal harm; or
3. if a Connected Account provider requires it.

12.2 We will give notice before suspending where practical, suspend only as much as is reasonably needed, and restore access promptly once the issue is fixed.

13. Term and ending the Agreement

13.1 Term. This Agreement starts on the Start Date and continues until ended under this clause 13. If the Order Form sets a minimum term, the Agreement continues for at least that term.

13.2 Ending for convenience. The Customer may cancel at any time in its account settings or by email. Cancellation takes effect at the end of the current billing month, and no further Fees are charged after that. We may end the Agreement by giving at least 30 days' written notice. No early termination fee applies. If the Order Form sets a minimum term, cancellation by either party takes effect no earlier than the last day of that minimum term.

13.3 Breach. Either party may end this Agreement by written notice if the other party materially breaches it and does not fix the breach within 30 days after receiving notice describing it, or if the other party becomes insolvent (to the extent the law allows the Agreement to be ended for that reason).

13.4 Changes. The Customer may end this Agreement by written notice, without any early termination fee, after receiving notice of a Fee change under clause 5.4, a feature removal under clause 2.5, or a change to these terms under clause 15.2.

13.5 Effect. When this Agreement ends, the Customer's access ends (its data is then dealt with under clause 6.6), and each party must pay any amounts owing up to the end date. Clauses 6.6, 7, 8.4, 8.5, 9, 10, 11, 13.5 and 14 continue after the Agreement ends.

14. Disputes

14.1 If a dispute arises, either party may give notice of it. Senior representatives of each party will meet (in person or online) within 10 Business Days to try to resolve it in good faith.

14.2 If the dispute is not resolved within 20 Business Days after the notice, either party may refer it to mediation through the Victorian Small Business Commission or, if that is not available, the Resolution Institute. Each party pays its own costs and half of the mediator's fees.

14.3 Neither party may start court proceedings until it has followed this clause, except to seek urgent injunctive relief.

15. General

15.1 Governing law. This Agreement is governed by the law of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria and the courts that may hear appeals from them.

15.2 Changes to these terms. We may update these terms by giving at least 30 days' written notice. If a change is materially to the Customer's detriment, the Customer may end the Agreement under clause 13.4 before the change takes effect. Otherwise, changes must be agreed in writing by both parties.

15.3 Assignment. Neither party may assign this Agreement without the other's written consent (not to be unreasonably withheld), except that either party may assign it to a buyer of all or substantially all of its business on notice, as long as the buyer agrees to be bound.

15.4 Subcontracting. We may use subcontractors and service providers. We remain responsible for their performance under this Agreement.

15.5 Notices. Notices must be in writing and sent by email: to the Customer at its account email or the address in the Order Form, and to ListingMate at hello@listingmate.com.au (or another address a party nominates). A notice is received when sent, unless the sender receives an automated message that it was not delivered. Notices sent after 5pm or on a non-Business Day are taken to be received on the next Business Day.

15.6 Publicity. We may name the Customer as a customer and use its logo on our website and in sales material, unless the Customer tells us not to. The Customer may withdraw this permission at any time by notice.

15.7 Force majeure. Neither party is liable for delay or failure to perform (other than paying money) caused by events outside its reasonable control, as long as it notifies the other party and takes reasonable steps to limit the effect. If the event lasts more than 30 days, either party may end the Agreement by notice.

15.8 Relationship. The parties are independent contractors. Nothing in this Agreement makes either party the agent, partner or employee of the other.

15.9 Order of precedence. If there is a conflict, the following order applies: the Data Processing Schedule (on privacy matters only), then the Order Form (only where it expressly says it overrides a clause), then the other Schedules, then these terms.

15.10 Entire agreement. This Agreement is the whole agreement between the parties about its subject matter and replaces earlier discussions and proposals.

15.11 Severance. If any part of this Agreement is invalid or unenforceable, it is read down or severed so the rest continues to apply.

15.12 Waiver. A failure or delay in exercising a right is not a waiver of it.

15.13 Electronic signing. This Agreement may be signed electronically and in counterparts, and accepted by clicking to agree in an online sign-up form, in line with the Electronic Transactions (Victoria) Act 2000.

15.14 Injunctions. Damages may not be an adequate remedy for a breach of clause 4.2, 7 or 10. The affected party may seek an injunction or other urgent relief, in addition to any other remedy.