Set out below are the terms and conditions on Only Property (BERKELIUM SOFTVARE LTD) provides the Service to its users. By registering for the Service, the User:
(a) acknowledges that they have read and understood these terms and conditions
(b) agrees to be bound by these terms and conditions; and
(c) represents and warrants that they have the authority to act enter into such agreement
Only Property reserves the right to update and change the terms and conditions from time to time without notice and such changes will be binding on the User.
2.1 In this Agreement and unless the context requires otherwise, the following terms have the meanings set out below and their derivatives have a corresponding meaning.
“Agreement” means these terms and conditions, as they may be amended from time to time.
“App” means the Only Property mobile application for phones, tablets, and other personal devices.
“Intellectual Property Right” means any intellectual property right of any kind, whether registered or unregistered, including but not limited to:
(a) patents, copyright, rights under the Circuit Layout Act 1989 (Cth) (and equivalent rights outside Russia in circuit layouts), registered designs, trademarks and any right to have any Confidential Information kept confidential, and any other proprietary rights; and
(b) any license or other application or right to use, or grant the use of or apply for registration of, any of the rights referred to in paragraph (a)..
“Service” means the Only Property Real Estate Cloud and Mobile App services made available (as may be changed or updated from time to time by Only Property) via the Website and/or the App.
“Subscription Fee” means the fee payable by the User for access to the Service in accordance with the fee schedule set out on the Website (which Only Property may change from time to time).
“Website” means the Internet sites at the domains www.OnlyProperty.com or any other site operated by Only Property.
“User” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service, and any person or organization that uses the Service with the authorization of that person or entity.
“User Data” means any data provided by the User to Only Property through the use of the Services.
2.2 In this Agreement, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) the words “including”, “for example” or “such as” do not limit the meaning of the words to which the example relates or examples of a similar kind;
(c) all monetary amounts are in EUR;
(d) a reference to time is to local time in Kaliningrad, EET; Russia; and
(e) a reference to any thing or amount is a reference to the whole and each part of it.
2.3 Headings are for convenience only and do not affect the interpretation of this Agreement.
3. Provision of the Service
3.1 Subject to the continued payment by the User of the Subscription fee, Only Property will provide the User with the Service for use by the User for use for its internal business purposes but for no other purpose.
3.2 Any use by a User during a free trial is for the purpose of evaluation only and not commercial use.
3.3 The provision of, access to, and use of, the Services is on an “as is” basis and at the User’s own risk. Only Property does not warrant the accuracy of the Service or that that the use of the Service will be uninterrupted or error-free. Only Property is not in any way responsible for any inaccuracy, unavailability of the Service.
3.4 It is the User’s sole responsibility to determine that the Service meet the needs of its business and is suitable for the purposes for which it is used or intended to be used by the User. Any reports or recommendations generated by the Service are the User’s information only. The User acknowledges and agrees that the User must rely on its own skill and expertise in accessing the accuracy or relevance of those reports and recommendations and in determining whether to implement any recommendations provided by the Service.
3.5 The User expressly acknowledged and agrees that the Services may not be or continue to be compliant with any laws, regulations or code of practice governing Real Estate Agents, including without limitation any obligations in respect of trust monies. It is solely the responsibility of the User to ensure such compliance.
4. User’s Obligations
4.1 As a condition of these terms and conditions the User must, without limiting or derogating from any obligations set out elsewhere in this Agreement:
(a) ensure that all usernames and passwords required to access the Service are kept secure and confidential and immediately notify Only Property of any unauthorized use of these usernames or any other breach of security;
(b) not attempt to undermine the security or integrity of Only Property’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
(c) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
(d) not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(e) not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(f) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
(g) only use any communication tools available through the Website or App (such as any forum, chat room or message center), lawful and legitimate purposes. Such communication tools must not be used for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which the User does not have the right to use).
5. Subscriptions fees & Payment
5.1 The User must subscribe to the Service in order to use it.
5.2 There is no fee payable during any Trial Period, By using the Service after the trial period, the User agrees to pay the monthly fee until this agreement is terminated.
5.3 Only Property may also charge additional fees, such as a set-up fee when you start the Service or a data export fee on termination or as otherwise requested by the User.
5.4 Only Property charges the fee monthly in advance. The amount is as specified on the Website or App, or as otherwise notified to the User (such notification to take precedence over any fee displayed on the Website or App).
5.5 Unless otherwise agreed, payment will by automatic secure credit card payment at the commencement of each payment period.
5.6 On successful payment, Only Property will email the User an Invoice suitable for claiming of VAT/GST or other applicable sales taxes.
5.7 Access to the Service is conditional on payment of the monthly fee. It is the User’s responsibility to ensure that the automatic payment is successfully made. If the automatic payment fails for whatever reason, Only Property may, at its discretion, restrict access to the Services and/or terminate this Agreement.
5.8 The User agreed to pay for Publishing service under its own Business name or Person name in Google or (and) Apple app store service, prior to being automatically billed.
5.9 The Trial period of 30 days provided for Beta testing service will be canceled and this Agreement will be terminated automatically if no payment made during this period.
6. User Data and Communications
6.1 Title to, and all Intellectual Property Rights in, the Data remain the User’s property. The User grants Only Property a license to use, copy, transmit, store, and back-up the User Data and other information provided by the User for the purposes of enabling the User to access and use the Services and for any other purpose related to the provision of the Services to the User.
6.2 It is the responsibility of the User to maintain copies of all User Data. Only Property adheres to its best practice policies and procedures to prevent data loss but does not make any guarantees that there will be no loss of User Data. Only Property expressly excludes liability for any loss or corruption of User Data no matter how caused.
6.3 Only Property will comply with all statutory confidentiality and privacy obligations applicable to its holding and dealing with the User Data.
6.4 Only Property is under no obligation to ensure that the communications on the Website or App are legitimate or that they are related only to the use of the Services. Only Property does not vet or edit such communications but reserves the right to remove any communication at any time in its sole discretion.
6.5 User acknowledges and agrees that all User Data will be deleted on termination of this Agreement and that it is the responsibility of the User to ensure such Data is copied prior to Termination.
7. Third-Party Services
7.1 The services provided to the User under this Agreement may include certain services developed, provided or maintained by third-party service providers of Licensor (“Third Party Providers”). Access to or use of any those services (“Third Party Services”) by the User is subject to any separate agreement that the User may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”).
7.2 The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto.
7.3 Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against the User in the case of any breach of those terms.
7.4 Disclosure. The Licensor receives commissions for third party services providers such as SMS credits, website providers, marketing companies and property export (“portal push”) services.
8. Intellectual Property
8.1 This Agreement does not transfer from Only Property to the User the ownership of any Only Property technology and all such ownership and Intellectual Property Rights will remain solely with Only Property.
8.2 The User acknowledges and agrees that:
(a) The right granted to them under this Agreement to use the Intellectual Property Rights of Only Property and its third-party vendors is limited to such use as is necessary to enjoy the benefit of the Services in accordance with this Agreement and no other use;
(b) they will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Only Property and/or its third-party vendors; and
(c) they shall indemnify and hold Only Property harmless from any loss or damage (including legal fees on a lawyer-client basis) arising from or related to any breach of this clause 7 or other provisions of this Agreement.
9. Warranties and Acknowledgements
9.1 Only Property gives no warranty about the Services. Without limiting the foregoing, Only Property does not warrant that the Services will meet the User’s requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
9.2 The User warrants and represents that they are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website, the App or these Terms.
9.3 To the extent permitted by law, the liability of the Licensor for any breach of a condition or warranty, implied into this Agreement under the Russian Consumer Law is limited (at Only Property’s sole election) to supplying the relevant services again; or payment of the cost of having those services supplied again.
10. Limitation of Liability
10.1 To the maximum extent permitted by law, Only Property excludes all liability and responsibility to the User or any other person in contract, tort (including negligence), or otherwise, for any loss (including loss of information, User Data or third party claims) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service.
10.2 If the User is not satisfied with the Service, their sole and exclusive remedy is to terminate the Agreement in accordance with clause 11.
11.1 Only Property has the right to suspend or terminate the Service and refuse any and all current or future use of the Service by the User for any reason at any time. In such cases, Only Property will credit the User for any unused pre-paid Subscription Fees.
11.2 Only Property may also terminate this Agreement immediately by notice in writing to the User if the Customer:
(a) fails to pay any fees or other amounts payable under this Agreement within ten (10) days of such amount being billed;
(b) commits any material breach of this Agreement (other than a failure to pay fees) and Customer fails to rectify such breach within ten (10) calendar days of written notice from Only Property to do so; or
(c) becomes subject to any form of external administration.
11.3 Customer may terminate this Agreement at any time by providing not less than ten (10) days notice to Only Property prior to the next due monthly fee payment. Failure to provide the required notice may result in the automatic monthly payment being processed by Only Property and if processed, no refund will be payable.
11.4 On termination of this Agreement howsoever occurring:
(a) Only Property’s obligation to provide the Services shall cease and except as provided for in clause 11.1, the User will not be entitled to any refund of any fees paid by it; and
(b) the rights of the User to access and use the Service and the Only Property Intellectual Property Rights granted under this Agreement will immediately terminate and the User must immediately cease to use the Services and the Website.
11.5 Termination of the Agreement is without prejudice to any rights and obligations of Only Property accrued up to and including the date of termination.
12. Modification to the Service and Prices
12.1 Only Property reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
12.2 Prices of all Services are subject to change upon ten (10) days notice from us.
12.3 Only Property shall not be liable to the User or to any third party for any modification, price change, suspension or discontinuance of the Service.
13.1 The User may not assign or transfer any rights to any other person without Only Property’s prior written consent.
13.2 Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Only Property must be sent to email@example.com or to any other email address notified by email to the User by Only Property. Notices to the User will be sent to the email address which the User provided when setting up access to the Service.
13.3 This Agreement is not intended to create a relationship of partnership, joint-venture or agency between the parties and neither party may hold itself out as being so related.
13.4 The obligations of the parties which are capable of enduring termination will survive termination of this Agreement.
13.5 A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. A party will not be liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
13.6 Each provision of this Agreement is severable from the others and no severance of a provision will affect any other provision.
13.8 This Agreement is governed by the laws having effect in the State of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts having jurisdiction in that State, and all courts hearing appeals from them.