Terms and Conditions for Commercial Off Market Pty Ltd (ACN 673 299 173)
Last update: 29 November 2023
1.1 These Terms and Conditions apply to all persons that use our Website to create a Listing, Account or otherwise.
1.2 Your use of Our Website constitutes your acceptance of these Terms.
1.3 Should you object to any of our terms of use or other notices on our Website your sole option is to immediately cease your use of our Website.
2.1 Definitions
In these Terms, unless the context otherwise requires, the following words have the following meanings:
(a) Account means a unique account created for You to access our Service or parts of our Service.
(b) Agent means a licensed real estate agent or property manager in accordance with the Land Agents Act 1994 (SA).
(c) Authorised Lister means:
i. an Agent; or
ii. are otherwise (as determined by Us, in our absolute discretion) suitable to create a Listing;
(d) Company (referred to as either the Company, We, Us or Our in these Terms) refers to Commercial Off Market Pty Ltd (ACN 673 299 173) and/or its related bodies corporate.
(e) Country means a federation and a state, territory, province or other part of a federation of the Australian jurisdiction, including the geographical area of Australia including its, states, territories and the Commonwealth.
(f) Content refers to content such as text, images, or other information that can be posted, uploaded, linked to or otherwise made available by You, regardless of the form of that content and includes text, illustrations, photos, audio, video, any combination of these or other content.
(g) Connections or Connection means the act of You reaching out or contacting an owner or agent via the Website under the ‘Make an Enquiry’ tab of the Listing.
(h) Connections Pack means the top up Connections Pack that contains 30 Connections that can be purchased via the Website for the Fee.
(i) Connections Fee means the fee in relation to the Connections pack top up fee as listed in the relevant section of the Website.
(j) Listing means an online advertisement promoting or offering a property for rent, lease or purchase.
(k) Listing Form means the prescribed form as provided on the Website which contains details to apply for a Listing, which form may change from time to time at the sole discretion of Us.
(l) Non-Agent Fee means the fee in relation to the Non-Agent fee as listed in the relevant section of the Website.
(m) Platform means the Website.
(n) Service refers to the Website.
(o) Terms and Conditions (also referred as Terms) mean these Terms and Conditions;
(p) Website(s) refers to Our website ‘Commercial Off Market – Australia’s Marketplace for Off Market Commercial Properties’ accessible from URL: https://commercialoffmarket.com.au.
(q) You (or Your) means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.
2.2 Interpretation
In these Terms unless the contrary intention appears:
(a) words denoting the singular include the plural and vice versa;
(b) a reference to any gender includes all genders;
(c) headings and the table of contents (if any) are for convenience only and do not affect interpretation;
(d) references to include and including are to be construed without limitation;
(e) a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, unincorporated body, authority or other entity and that party’s executors, administrators, successors and permitted assigns;
(f) law means common law, principles of equity, and laws made by parliament (and laws made by parliament including State, Territory and Commonwealth laws and regulations and other instruments under them, and considerations of any of them) including same as amended, variated, novated or replaced from time to time;
3.1 In order to place a Listing with Us, You must:
(a) be 18 years or older;
(b) be an Authorised Lister, and if You are an Agent, you make such listing in your capacity as an Agent;
(c) register an Account with Us; and
(d) complete and submit the online property Listing Form.
3.2 Your agreement with Us for Listing services (Agreement) consists of:
(a) your Listing Form;
(b) these Terms, as may be varied from time to time; and
(c) the terms and conditions of our Privacy Policy and our Acceptable Use Policy.
3.3 Once Your Listing Form has been submitted it cannot be cancelled or withdrawn.
3.4 We may vary, amend or revise these Terms or this Agreement at any time, and you agree to be bound by that varied Agreement upon your continued use of the Website. Whilst We will endeavor to notify You of any material changes to these Terms, Our Privacy Policy or Acceptable Use Policy, You agree that You will periodically review the most up to date version of these Terms, our Privacy Policy and Acceptable Use Policy as accessible on in the relevant section of the Website.
4.1 Agents will not be charged a fee to create a Listing on the Website.
4.2 A user of the Website who is not an Agent, or has not provided evidence that they are in fact an Agent, will be charged the Non-Agent Fee.
5.1 When registering an Account with us, You will be provided thirty (30) free Connections upon registration of your Account.
5.2 You will be given a further thirty (30) free Connections per month. Any unused Connections will be added on to the following months’ Connections and in effect topped up to the following month (the ‘Topped-Up Connections’).
5.3 Unless you purchase additional Connections, your maximum number of Connections will not exceed the thirty (30) free Connections you are given under this clause 5.
5.4 If You run out of free, or purchased Connections, you can purchase a Connections Pack via the Website.
For example:
You create an Account on the 20th of January 2023 and are given 30 Connections and You use 5 before the end of the month.
On the 1st of February you are given the amount of Connections you had used in the previous month, being 5, therefore your amount of Connections will be 30 for the month of February.
If you run out of Connections, you can purchase a further pack of 30 Connections for $50.00 (AUD) (plus GST) via the Website.
6.1 When registering an Account with Us, You must provide accurate, complete and up-to-date registration information. It is Your responsibility to inform Us of any changes to Your registration information.
6.2 You must not impersonate or create an Account for any person other than yourself.
6.3 We may at any time request evidence of Your identity to verify your registration information.
7.1 You hereby agree that we are not required to accept your Listing Form or publish your Listing until it has been accepted by Us. Your Listing Form and Listing is accepted by Us once we publish your Listing on our Website, however we reserve our rights to suspend or remove the Listing at any time if we are permitted to do so under the terms of this Agreement (including under clause 8 of these Terms and Conditions).
7.2 All features of our Website and products (including Listings) are subject to change, development and discontinuation and we may vary or discontinue any feature of the Website or any product at any time without notice to You.
7.3 We will use best endeavours to provide you with continuous and fault-free operation of the Website and the other services we provide you, however we cannot guarantee and do not warrant same, and technological failures or delays may prevent us from doing so.
7.4 We have absolute editorial control in relation to the publication of your Listing, including but not limited to, the format, position and placement of your Listing. This may mean that the way your Listing appears on the Website may vary from any preview provided when you submitted your Listing Form.
7.5 The ranking or order in which listings appear on our Website is determined in our absolute discretion, subject to users’ search criteria and ordering preferences. Certain listing products contain enhanced features which enable those listings to rank ahead of other listings of a different ranking.
7.6 The services we provide are in the capacity of a publisher of property listings only. We:
(a) do not provide any representation, warranty or guarantee that your property will be leased, tenanted or purchased through our Website or any of our services;
(b) are not, and will not be, a party to any contract, arrangement or understanding between you and any potential tenant, purchaser, or applicant in relation to your Listing; and
(c) do not verify or authenticate the identify of any person who may contact you through our Website, and do not guarantee or make any assessment as to the suitability of any person as a tenant for your property.
8.1 You acknowledge and agree that:
(a) you grant us an irrevocable, perpetual, world-wide, royalty free licence to publish, copy, license to other persons, use and adapt for any purpose related to our business, any Content you provide to us in connection with this Agreement, and this licence survives termination or expiry of this Agreement; and
(b) you are solely responsible for the Content of your Listing and any errors or omissions in your Listing. Our role is strictly as a publisher.
8.2 You represent and warrant that to Us that:
(a) you have the appropriate legal authority to advertise or offer the property specified in your Listing on our Website. We may at any time request evidence of your authority to offer the property which may include, for example, evidence that you own the property, or documentation evincing your authority as agent for the owner of any such property;
(b) you have the authority to publish all Content contained in the Listing on our Website;
(c) all Content and other information provided in your Listing Form (including contact information) is accurate and complete;
(d) you have the authority, and have taken all necessary steps, to grant Us the irrevocable licence contained in clause 8.1(a) of these Terms;
(e) you will promptly comply with any direction we give to you in relation to your Listing, including any direction to delete, amend or update any relevant Listing where the Listing or the Content does not comply with these Terms or the Acceptable Use Policy;
(f) you will ensure that your Listing and any statement you make to us or any Content supplied by you (including in your Listing Form):
i. is not unlawful;
ii. is not provided for an improper purpose;
iii. is not misleading or deceptive or likely to mislead or deceive;
iv. does not include information that is defamatory, fraudulent, infringes the intellectual property rights of third parties or would otherwise expose us to any liability, legal proceedings or other sanction; and
v. does not otherwise breach the Acceptable Use Policy;
(g) You will only use features and products we may provide you in connection with your Listing for legitimate purposes for which they are provided. For example, you may only receive and use enquiries (and all information contained in those enquiries or subsequently provided, including personal information) for the sole purpose of letting or selling that Property only;
(h) You will comply with all applicable laws and mandatory codes or guidelines, including without limitation, the Competition and Consumer Act 2010 (including the Australian Consumer Law); Trade Marks Act 1995; fair trading legislation; tenancy legislation and regulations, the Privacy Act 1988, the Spam Act 2001 and any other applicable advertising standards and regulations;
(i) You will, and will ensure that anyone acting on your behalf in respect of this Agreement or your Listing will, treat our employees with courtesy at all times and not threaten, harass, abuse, assault, use offensive language towards, defame or repeatedly and unnecessarily contact our employees, contractors or agents or otherwise cause them distress or discomfort; and
(j) you will ensure that your username and password for accessing any service supplied by us are kept secure at all times and are only disclosed to persons authorised to act on your behalf. You are responsible for any activity using your username and password by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use.
9.1 If you are not an Agent, you must pay the Non-Agent Fee at the rate and in the manner set out in the Listing Form or as otherwise notified to you in respect of any other services We may provide you.
9.2 If you remove your Listing (for example if the property is sold, leased or tenanted), all fees remain payable and you will not be entitled to a refund or credit to all or any part of the fees already paid.
9.3 You are not entitled to any refund or credit if you are in breach of this Agreement and we determine to refuse to publish your Listing, terminate this Agreement or suspend or remove your Listing.
10.1 Without limiting our other rights, we may immediately terminate this Agreement or suspend or remove any of your Listings if:
(a) you breach or do not comply with any terms of this Agreement; or
(b) in our sole opinion, your ongoing use of our services will or may bring Us into disrepute or cause Us to be in breach of any applicable laws.
10.2 Termination of this Agreement or suspension or temporary removal of Listings pursuant to clause 10.1 does not:
(a) relieve either party of its accrued obligations and liabilities pursuant to this Agreement which may be enforced before or after termination; or
(b) waive any accrued rights in respect of any breach of this Agreement by either party.
11.1 Subject to clause 11.4 below, to the extent permitted under the Competition and Consumer Act 2010 (including the Australian Consumer Law) or any other applicable law, each party:
(a) excludes all conditions and warranties implied into this Agreement;
(b) excludes liability for consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue, loss of data and loss of profits); and
(c) limits its liability for breach of any consumer guarantee, condition or warranty that cannot be excluded to (at the party’s option) resupplying the relevant service or paying the cost of having the relevant service resupplied.
11.2 Each party must take all reasonable steps to minimise any loss it suffers or is likely to suffer and that is the subject of a claim under this Agreement. If a party does not take reasonable steps to minimise that loss, then liability for the relevant claim will be reduced accordingly.
11.3 Neither party will be liable under this Agreement to the extent that liability is caused by:
(a) the other party’s breach of its obligations under this Agreement or its negligent act or omission; or
(b) any delay in performance or breach of this Agreement which arises as a result of any matter beyond its control (including, in our case, viruses, other defects or failure of the server hosting the Website).
11.4 You indemnify Us and our officers, employees and agents (those indemnified) against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any Content uploaded or submitted by you in connection with this Agreement or any other act or omission by you in connection with your use of the Website or our other services.
11.5 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
12.1 Except where expressly stated otherwise, Content on Commercial Off Market is provided as general information only. It is not intended as advice and must not be relied upon as such. You should make your own inquiries and take independent advice tailored to your specific circumstances prior to making any decisions.
12.2 We do not make any representation or warranty that any Content on the Website will be reliable, accurate or complete, nor do we accept any responsibility arising in any way from errors or omissions.
12.3 You must take your own precautions to ensure your access to the Website does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system or other personal devices.
12.4 We will not be liable for loss resulting from any action or decision by you in reliance on the Content on the Website, nor any interruption, delay in operation or transmission, virus, communications failure, Internet access difficulties, or malfunction in equipment or software.
12.5 You acknowledge that we are not responsible for, and accept no liability in relation to, any other users’ use of, access to or conduct in connection with the Website in any circumstance.
13.1 We may feature or display links and pointers to websites operated by third parties on the Website. Such websites do not form part of Commercial Off Market’s Website and are not under our control. We do not accept any responsibility in connection with any such website. If you link to any such websites, you leave Commercial Off Market’s Website entirely at your own risk.
13.2 You must not link to Commercial Off Market’s Website from any other website (or otherwise authorise any other person to link from a third-party website to Commercial Off Market’s Website without our prior written consent.
13.3 The Commercial Off Market’s Website may feature or display third party advertising. By featuring or displaying such advertising, we do not in any way represent that we recommend or endorse the relevant advertiser, its products or services.
13.4 If you contact a third party using functionality provided on the Website, including via e-mail, we do not accept any responsibility for any communications or transactions between you and the relevant third party
By using the Website, you affirm that you are 18 years or over or otherwise possess legal parental or guardian consent.
We will send all notices and other communications to you at the email address you have provided to Us in any such Account you have created.
If part or all of any provision of these Terms is illegal or unenforceable it will be severed from these Terms and will not affect the continued operation of the remaining provisions hereof.
These Terms, Privacy Policy, and Acceptable Use Policy contains the entire understanding between the Parties, supersedes all prior and contemporaneous agreements or understandings.
The failure or omission of a party to enforce or require strict compliance with a provision of this Agreement does not affect or impair that party’s right to subsequently enforce or require strict compliance with that provision or to avail itself of any remedies it may have in respect of any breach of that provision. No waiver by a party will be effective unless it is in writing and signed.
Nothing contained in these Terms shall create the relationship of partnership or of principal and agent or of joint venture between the Parties and no term herein nor any act of the Parties shall create any relationship between them.
These Terms are governed by the laws of South Australia. Each party submits to the non-exclusive jurisdiction of the Courts of South Australia in connection with any action or proceeding which may be brought at any time in any way relating to these Terms.
