1 Introduction to Airlisting – our Terms, updated 9 August 2018
To use the Site you may be a person who has not registered to use the Site or you may be a person who has registered to use the Site or an individual acting on behalf of a person who has registered to use the Site. If you register you are called a Member. "You”, “user” or “your” means any user of the Site. When we refer to persons in these Terms we mean any individual, company, partnership, unincorporated association or other legal body.
Any questions? If you have any questions about Airlisting's Terms, we’d love to hear from you. Use the contact form to send your query or email firstname.lastname@example.org and we’ll get back to you as soon as we can.
2 How the Site works and overview of the Terms
The Site is an online platform with 2 main functions. The Site is for real estate sales and real estate developments located in Australia only.
2.2 Listing functionality
The first main function is for sellers of real estate (whether an individual or individuals, companies, partnerships, unincorporated associations or other legal bodies including property developers) (Sellers) to market their real estate and for buyers of real estate (Buyers) to submit offers, subject to contract. Sellers and Buyers do not enter into a binding agreement to sell and purchase the real estate on the Site. If a Seller wishes to proceed with the Buyer, the Seller and the Buyer must enter into a contract for sale for the real estate outside of the Site. A binding agreement will only be formed if the Buyer and Seller enter into a separate written contract for sale.
Airlisting Sale Fee: If you are a Seller, you must pay us the Airlisting Sale Fee once the sale of the real estate you have listed on the Site settles or completes (or in the case of off-the plan sales, when persons enter into a contract for sale of the real estate). It is payable for any sale to what we call a "Site Connected Buyer", which includes not only other Members but persons on whose behalf they act or persons connected with a Member. It also applies to what we call a "Site Connected Sale" . Please review our Fee Policy for a more detailed explanation. As a Seller, you should not list your real estate on the Site, if you do not agree to pay this Airlisting Sale Fee.
2.3 AirPropertyDeveloper or AirPD
Once launched, the second main function of the Site is to provide a platform for property developers (Property Developers) to store documents and other information for a real estate development on a logically separated part of the Site (Designated Zone) and use the functionality of the Site to manage their real estate projects at any stage from feasibility studies to completion.
Property Developers may authorise construction or fit-out contractors, architects, surveyors, sales agents, and other persons contracting with property developers (AirPD Authorised Organisations) to access the Property Developer's Designated Zone area on the Site. Authorised Organisations must register as Members before they use the Site.
Airlisting Subscription Fee: If you are a Property Developer using AirPropertyDeveloper (also known as AirPD), you will be required to pay the Airlisting Subscription Fee that aligns with your chosen subscription. The Subscription Fee is charged monthly per project which uses AirPropertyDeveloper. Please review our Fee Policy for a more detailed explanation. As a Property Developer, you should not use the AirPropertyDeveloper or AirPD if you do not agree to pay this Airlisting Subscription Fee.
2.4 Airlisting's role
Airlisting provides the Site as a marketplace for Sellers to market real estate and for Sellers and Buyers to deal directly with each other and once AirPropertyDeveloper is launched, for Property Developers to manage their projects on the Site. In providing the Site Airlisting is not providing the services of a real estate agent or an auctioneer, and is not licensed to act as one in any State or Territory. Airlisting does not act as an agent for Sellers or Buyers, does not conduct an auction and does not sell or buy or negotiate real estate on the Site.
The Site also enables Sellers to buy certain products and services from suppliers such as property valuers, photographers, sign manufacturers and solicitors who are registered to market their products and services on the Site (Suppliers). These Suppliers are not part of Airlisting. If a Seller buys a product or service from a Supplier, the Seller is entering into a separate agreement with that Supplier.
Any messages and associated content sent through or uploaded to the Site and any images or other content displayed on the Site is called Content.
2.5 Overview of the Terms
To help you understand our Terms they are divided into different parts.
(c) Fee Policy – this provides information on our current fees for using the Site and Suppliers’ fees.
(d) Supplier Policy – this covers terms relating to Suppliers such as property valuers, photographers, sign manufacturers and solicitors, who offer to sell to Sellers products and services through the Site and Sellers' use of these Suppliers.
(e) Refunds and complaints policy – this explains how we manage refunds and complaints.
2.6 Changes to the Terms and Fees
(a) We may change the Terms from time to time by posting an updated version on the Site or by notifying you, or both. Your continuing use of the Site is your agreement to these Terms.
(b) If you are a Member, if we make changes to the Terms (other than our fees), which are adverse to you, we will give you not less than 30days' prior written notice of the change by sending a notice to your registered email address, unless we are making the change to comply with law or changes to GST. In this case, we will endeavour to provide you with prior written notice of the change to your registered email address. Terms applying to changes to fees are set out in the Fee Policy.
(c) As set out in clause 3.7 you may terminate your use of this Site or a subscription at any time for convenience, including if we propose to change the Terms and you do not wish to be subject to the new changed Terms.
(d) If you are a Member who is a Property Developer who has subscribed to AirPropertyDeveloper, and you terminate your subscription as a result of our proposed adverse changes to the Terms relating to AirPropertyDeveloper during a month prior to the proposed changes to the Terms taking effect, the change in Terms to AirPropertyDeveloper will not take effect until the end of your current monthly subscription during which the Terms would otherwise change.
(e) In some instances, where you are a Seller, we may provide a service associated with your order of products or services from a Supplier (please see clause 3.5 below). A change to our Terms which are adverse to you, will not apply to such a service connected with a product or service, which you have ordered from a Supplier, if the Supplier has accepted your order before the change in Terms.
3 Terms that apply to all users
3.1 General users, Members and Suppliers
(a) A person may browse the Site without registering, but will only have access to limited functionality.
(b) To become a Seller or Buyer, or both, you must register on the Site [hyperlink to registration?]. You may register yourself directly. In addition, where you are not a current Member and request information on real estate marketed on the Site from us, we may create a proposed membership for you using the details you have sent us, which you may then at your discretion accept, so that you can access the information you were after. Membership for access to the listing functionality on the Site is free, although certain fees apply to different activities on the Site including if you are a Seller and list real estate on the Site. You must not transfer your membership to another person. You must be 18 years of age or older to register on the Site.
(c) If you are a property developer and wish to use AirPropertyDeveloper once it is launched, you must register on the Site. AirPropertyDeveloper is subject to a subscription fee. AirPD Authorised Organisations must also register on the Site to access a Property Developer's Designated Zone.
(d) An individual may register on behalf of a company, partnership, unincorporated association or other legal body (Enterprise Member). For example, an individual may register on behalf of a company that is a property developer. In this case, the Enterprise Member is the Member, and the individual registering is acting on behalf of that legal person. Enterprise Members may have multiple individuals who are registered to use the Site. Each such individual must have the authority to act on behalf of the Enterprise Member. By registering on behalf of the Enterprise Member such individual represents to us that they have (and for as long as they are representing the Enterprise Member on the Site, will have) the requisite authority to act on behalf of the Enterprise Member. The Enterprise Member will be responsible and liable for the acts and omissions of its employees and other individuals acting or purporting to act on its behalf.
(e) An individual, who is a Member or an Enterprise Member may act as an agent on behalf of another individual or person, for example to sell a property on behalf of another individual or person or to place an offer on behalf of another individual or person. If you act as an agent you must have and represent that you have the authority to do so and you must have all necessary licences and authorisations, if required in law to act on behalf of another individual or person.
(f) To become a Supplier you must enter into a separate agreement with Airlisting. Please contact email@example.com to become a Supplier.
(g) The provision of the registration facility and any listed services is not an offer by us to provide the Site including a related service. An agreement is only entered into between you and Airlisting, when Airlisting sends you a confirmation that it has accepted your membership of the Site or your application or order for any part of the Site, including a related service.
3.2 Collection and use of personal information
3.3 Your obligations when using the Site
All users of the Site must comply with a number of obligations.
(a) Own use: You must only use the Site for your own personal purposes, or in the case of an Enterprise Member for itself, except a Member may act on behalf of another individual or Person as described in these Terms. You must not, however, re-sell or sub-licence this Site or re-sell or sub-licence Content on the Site (unless you have provided that Content) or represent or use the Site as if it is your own Site.
(b) Compliance with laws: You must comply with all laws relating to your activities associated with use of the Site. By way of example, there are laws in States and Territories requiring persons to be licensed as a real estate agent or auctioneer, or both, to perform certain services on behalf of another person. There are also foreign investment laws associated with the purchase of real estate and intellectual property laws protecting copying of copyright works and criminal laws on prohibited content and hacking of websites.
(c) Security and passwords: If you have registered you must keep your password confidential and secure. You must immediately inform us if you know or suspect unauthorised use of your password or if you know or suspect another person may know your password.
(d) Content that you transmit or display: You are responsible for all Content that you transmit, upload or display. You must ensure that:
(1) your Content is complete and accurate and is not misleading or deceptive;
(2) you have the rights to use the Content and grant us the rights to use the Content as described in these Terms and use of the Content (including by Airlisting) does not infringe another person's intellectual property rights;
(3) your Content does not breach any laws;
(4) your Content is not harmful, threatening, abusive, harassing, defamatory, vulgar, pornographic, offensive, indecent, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(5) your Content does not represent or imply that you or your Content is endorsed by us;
(6) your Content does not relate to commercial activities or sales other than as expressly permitted by the Terms and is not unsolicited messages or spam; and
(7) your Content does not contain images of any individual under 18 and your Content does not contain images of any other individual without that individual's consent or images of real estate other than the real estate the Seller is selling.
(e) Display of the Site and Content: Airlisting owns or licences the trade marks, copyright and other intellectual property rights in the Site and Content on the Site. You must not frame the Site or display Content from the Site in a manner which obscures or removes Airlisting branding or gives the impression that the Site or Content on the Site is associated with a different person or brand.
(f) Misuse of the Site. You must not:
(1) on your own or with others manipulate the price for any real estate;
(2) use any code or device to direct persons away from the Site to another webpage;
(3) scrape data from this Site or use any code or device to retrieve, index, data mine or copy or circumvent the workings of the Site or its Content;
(4) upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other harmful code; or
(5) interfere with or disrupt the operation of the Site.
(g) Backup of data. You must ensure that you back-up and have copies of all Content you transmit, display or upload to the Site in case that Content on the Site becomes unavailable, is lost, destroyed or is corrupted. If you use AirPropertyDeveloper you must back-up, on another system, all data that is stored in the Property Developer's Designated Zone.
3.4 Our rights to use your Content including valuations
(a) By submitting or posting Content for or on areas of the Site that are accessible by the public or other users, you grant to us an irrevocable, perpetual, transferable, worldwide, royalty-free, non-exclusive licence (with a right to grant sub-licences) to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Site and to use it in connection with the promotion of the Site and Airlisting group's business.
(b) By submitting or posting Content for or on areas of the Site that are not accessible by the public or other users, you grant to us a non-exclusive licence (with a right to grant sub-licences) to use such Content to provide the Site.
(c) You also grant to us an irrevocable, perpetual, transferable, worldwide, royalty-free, non-exclusive licence (with a right to grant sub-licences) to use, distribute, reproduce, modify, publish, and otherwise exploit information obtained by us through or in connection with the Site (including from a Seller's valuation of their real estate, and other real estate related pricing and location information, pricing of offers, subject to contract, and usage of the Site) for creating statistics, databases and compilations for use by the Airlisting group and third parties, provided that Airlisting will not disclose your information in any manner that identifies your information as yours.
(d) You acknowledge that we may use information provided by you to monitor publicly accessible land title records for the purposes of identifying whether there has been a sale of the real estate for the purposes of the Seller's obligation to pay us the Airlisting Sale Fee (please see the Fee Policy).
3.5 Our responsibilities and limitations to our responsibilities
We will provide the Site with reasonable skill and care. We will use our reasonable endeavours to make the Site available for access through the Internet. The Site includes functionality to market real estate and interact with potential Buyers and to interact with Suppliers. We will use reasonable endeavours to ensure that information we provide on the Site is materially accurate and complete.
When you order products and services from Suppliers through the Site, we may separately provide you with services to assist in the ordering process or your listing. By way of example, if as a Seller you order photographs for your listing or a valuation, we may receive the photos or valuation and use them to create a draft listing for you for your approval.
There are however, a number of limitations to the Site, including our associated services, which you should be aware of and we exclude responsibility for them and we exclude any implied warranties, conditions or other terms associated with them. Of course, none of these exclusions and limitations exclude or limit any consumer guarantees you may have under Australian consumer law.
(a) Errors and unavailability of Site: The Site may not operate error fee, there may be some minor functionality that does not work and there will be times when the Site is unavailable including for maintenance.
(b) Content provided us: Some of our Content relating to the real estate market generally is provided for general information purposes only and should not be relied upon.
(c) Content of other persons: We do not review or check the accuracy of any Content provided or transmitted by any Seller, Buyer or other person and we are not responsible for or liable for that Content. If you consider any Content is in breach of these Terms, you should notify us at firstname.lastname@example.org.
(d) Acts or omissions of other persons: We do not undertake identification checks on Sellers, Buyers or other users of the Site and we do not check that they comply with law. We also do not check whether Sellers, Buyers and Property Developers are authorised, have the capacity to, or will sell or buy real estate marketed on the Site. This includes where a Seller has decided to proceed with a Buyer. We cannot compel a Seller, Buyer or Property Developer to enter into a transaction. We are not liable for the acts or omission of Sellers, Buyers or other users of the Site.
(e) Linked sites: You may be able to link to third party websites through the Site. We do not endorse, review, or control those third party websites. We are not responsible for them or liable for loss or damage you may suffer when accessing them.
(f) Matters beyond our reasonable control: We are not responsible for a delay or failure in the performance of any of our obligations, which is beyond our reasonable control.
3.6 Our rights to remove Content or suspend use of the Site
(a) We may suspend or remove Content from the Site if, acting reasonably, we consider that the Content breaches or may breach the Terms. We will notify you as soon as reasonably practicable if we do so.
(b) We may also suspend your use of the Site, if, acting reasonably, we consider that you have breached or may breach the Terms. This includes if you have failed to pay a fee to us, when it is due and payable or if you have acted in bad faith including by listing real estate on the Site, which you do not intend to sell or as a Buyer making offers to Sellers in bad faith. We will notify you prior to the suspension or as soon as reasonably practicable after that.
(c) We may also suspend the Site or your use of the Site, to mitigate or prevent fraud, effects of viruses or other harmful code, security breaches or illegal activity in connection with the Site or loss, damage or misuse of the Site.
(d) Unless, we terminate your use of the Site in accordance with these Terms, we will reinstate your use of the Site or the Site, once the reason for suspension has been remedied or otherwise resolved. When exercising our rights of suspension we may suspend your entire use of the Site or selected parts affected by your breach or other event giving rise to our right to suspend.
3.7 Duration and termination
(a) Listing functionality - duration: If you are a Member who is a Seller or Buyer, or both, your right to use the Site continues until you or Airlisting terminates your use in accordance with the Terms. Please note that users have continuing obligations after termination (see clause 3.7(h) below).
(b) AirPropertyDeveloper – duration: AirPropertyDeveloper is a service, which has a monthly automatic rolling subscription. This means that your subscription will automatically be extended on a monthly basis, unless it is terminated by you or us (as described below). Please note that users have continuing obligations after termination (see clause 3.7(h) below).
(c) Your and our rights to terminate use of the Site for breach
(1) Our breach of Terms: You may terminate your use of the Site for our breach of the Terms on written notice (which may be immediate), if the breach is material and not capable of remedy or is capable of remedy and we fail to remedy the breach within 14 days of your written notice to us to remedy the breach. When exercising your rights of termination you may terminate your entire use of the Site or the following parts of the Site affected by the breach: your membership as a Seller or Buyer; as a subscriber to AirPropertyDeveloper; or as an AirPD Authorised Organisation.
(2) Your breach of Terms: We may terminate your use of the Site for your breach of the Terms on written notice (which may be immediate), if the breach is material and not capable of remedy or if you breach any of the Terms and do not remedy that breach within 14 days of our written notice to you to remedy the breach. When exercising our rights of termination we may terminate your entire use of the Site or selected parts affected by your breach. For example if you are a Property Developer and breach terms relating to AirPropertyDeveloper we may terminate your subscription of AirPropertyDeveloper and allow you to continue your membership as a Seller using the listing functionality.
(d) General users – your and our rights to terminate use of the Site for convenience
A general user, who is not a Member, may cease to use the Site at any time for convenience without notice and we may terminate your use of the Site at any time for convenience without notice.
(e) Listing functionality - your and our rights to terminate use of the Site for convenience
(1) If you are a Member using the listing functionality and associated services, as a Seller or Buyer, you may cease to use the Site at any time and terminate your membership at any time for convenience by selecting 'Close Account' in Settings when you are logged into your account and we may terminate your membership as a Seller or Buyer, or both, at any time for convenience by written notice to you (which may be immediate, unless we are required to give you longer notice under these Terms). You are not entitled to any refund of any of our fees except for any circumstances specified (if any) in our Refunds and Complaints Policy and any refund of Supplier's fees is subject to your agreement with a Supplier and their refund policy.
(2) If you are a Seller, we will give you not less than 30 days' prior written notice of termination for convenience.
(3) In addition if you are a Seller and we provide a service associated with your order of products or service from a Supplier (please see clause 3.5 above), we will not terminate such a service to you under this clause 3.7(e) if we have already agreed to provide that service, unless we refund you the Administration Fee payable for that service and arrange for the Supplier to refund its fee for that product or service.
(f) AirPropertyDeveloper - your and our rights to terminate use of the Site for convenience
(1) A Property Developer or Airlisting may terminate the monthly subscription of AirPropertyDeveloper for convenience by notifying the other in writing not less than 10 days' prior to the end of the current month's subscription.
(2) If a Property Developer and Airlisting agree to a subscription for AirPropertyDeveloper which has a minimum term neither the Property Developer nor Airlisting is entitled to terminate AirPropertyDeveloper for convenience prior to the end of the minimum term and each of them must provide not less than 10 days' prior written notice to terminate at the end of the minimum term.
(3) AirPD Authorised Organisations may cease to use AirPropertyDeveloper at any time and terminate their membership at any time for convenience by selecting 'Close Account' in Settings when you are logged into your account. AirPD Authorised Organisations may only access the Designated Zone for so long as the relevant Property Developer has a current AirPropertyDeveloper subscription and permits a person to access the Property Developer’s Designated Zone as an AirPD Authorised Organisation.
(g) Termination notices: You must send notices of termination by email to us at email@example.com. We must send notices of termination by email to you at your registered email address.
(h) Your continuing obligations after termination
(1) If your use of the Site or these Terms terminates for any reason, you are still responsible for your Content and past use of the Site and the indemnity you provide to us continues.
(2) You must also still pay fees relating to the use of the Site which were due prior to termination or if any are specified to be payable on termination in the Fee Policy (if any).
(3) In addition, if you were a Seller you must also still pay the Airlisting Sale Fee to us on any real estate listed on the Site in accordance with our Fee Policy, even if you are no longer a Member and even if the sale occurs after termination, unless you have lawfully terminated your use of listing functionality for our breach of these Terms associated with that listing. This is because the Airlisting Sale Fee is based on whether you have undertaken a sale connected with your use of the Site and therefore whether you have benefited from use of the Site, even when the sale occurs after termination.
(i) AirPropertyDeveloper – access to documents: Property Developers using AirPropertyDeveloper should download documents from their Designated Zone prior to termination. If you have not done so, you may contact us within 30 days of termination of your Designated Zone, and we will arrange access to your Designated Zone for a short period exclusively for you to download your documents, provided you have paid all fees which are due and payable to Airlisting (or if not, you promptly pay an outstanding fees). We will delete any documents in your Designated Zone within a reasonable period after this 30 days period (or if later a reasonable period after the period we allow you to download your documents or if we agree in writing with you to retain copies of your documents for a longer period, after such longer period).
(j) Refunds: Please refer to our Refund and Complaints Policy.
3.8 Our liability
(a) Australian consumer law: If you are a consumer under Australian consumer law, you are entitled to consumer guarantees. This clause 3.8(a) only applies to any of our goods or services, which are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Our liability for loss, damages, costs and expenses because of our failure to comply with a consumer guarantee howsoever caused (including negligence), is limited at our election:
(1) in the case of goods to any one or more of the following: the replacement of the goods or the supply of equivalent goods, the repair of goods, the payment of the cost of replacing the goods or of acquiring equivalent goods and the payment of having the goods repaired, provided it is fair and reasonable for us to rely on this clause; and
(2) in the case of services, to re-supplying the services or paying the cost of having the services supplied again, provided it is fair and reasonable for us to rely on this clause.
(b) Other liability: For liability, other than our liability under consumer guarantees, and other than for our fraud, we exclude and cap our liability under or in connection with the Terms and the Site, whether that liability arises from our breach of contract, negligence or otherwise, as follows. We exclude liability for: loss of profit, loss of revenue, loss of business and loss of opportunity (including relating to the sale or purchase of real estate); loss of data, business interruption and loss of anticipated savings; and indirect or consequential loss.
Our aggregate liability to you under or in connection with these Terms for all claims is capped at the greater of the fees paid to us in the 12 months immediately prior to the events giving rise to the claim and $100.
(c) Your liability to us: You indemnify us for our losses, damages, costs and expenses associated with: any of your Content; your misuse of the Site; and any demand or claim against us by another user arising from your acts or omissions. This indemnity does not apply, where the loss, damages, cost, expense, demand or claim, arises from our breach of the Terms, law, negligence or wilful or fraudulent act or omission.
3.9 Applicable law
4 Seller, Buyer and Property Developer terms
4.1 Seller rules
If you are a Seller you must comply with certain obligations.
(a) You must have the legal right to sell any real estate listed by you on the Site or must have the authority to act on behalf of another person who has the legal right to sell the real estate listed by you on the Site, or both.
(b) The real estate must be located in Australia.
(c) You must obtain a valuation from a Supplier, which is a valuer or any other qualified valuer before you market the real estate on the Site. If however, you are a property developer, selling off-the plan or selling near-complete or multiple apartments, you may instead provide details of how you determined the sales price and provide information to Airlisting to support that price, if requested by Airlisting.
(d) By listing your property on our Site, you acknowledge that you are in a position to proceed with a sale with a particular Buyer as soon as reasonably practicable if an offer for your listed real estate is accepted, subject to contract. To facilitate this, you must have prepared a form of contract for sale for the real estate and have identified your legal representative or licensed conveyancer (if you are using one) and you must upload on to the Site available for other users, a copy of the proposed contract to us (as confirmation that you are ‘sale ready’), before your property will be listed to the public.
(e) You must include all Content about the real estate as required by any mandatory fields on the Site.
(f) You must provide a Buyer with the right to inspect the real estate.
(g) You may withdraw real estate at any time from the Site, but you must still pay the Airlisting Sale Fee to us on any real estate marketed on the Site where a sale of the real estate settles or completes (or in the case of off-the-plan sales, where persons enter into a contract for sale) after you withdraw as described further in our Fee Policy.
(h) Once the real estate has been sold, you may keep the real estate on the Site, but you must use the functionality on the Site to mark and display that it has been sold.
(i) We may remove real estate from the Site in the following circumstances:
(1) if the real estate is no longer for sale;
(2) if your account has been inactive for 6 months;
(3) if we reasonably consider that you are not genuinely interested in selling the real estate you list; or
(4) if the real estate has been on the Site for longer than 12 months without a sale.
We will send a notice to your registered email address prior to removing your real estate. You may contact us at firstname.lastname@example.org if you have a query associated with our removal or proposed removal of your real estate.
4.2 More on valuations
(a) The valuation you use must be no older than 30 days, or within its validity period as stated by the qualified valuer who performed the valuation at the time of listing. If you use a valuer other than a Supplier, you must upload a copy of the valuation on to the Site.
(b) The reason we require you to have a valuation in order to market your real estate on the Site is so that you have an understanding what your real estate is potentially worth before listing. You will remember that this Site operates without the services of a real estate agent to assist a Seller in determining the appropriate price for its real estate.
(c) You can choose whether or not the valuation amount is visible to Buyers. This is done when editing your listing in the "listing price" section of your listing. The Site provides information to Buyers to inform them whether a Seller has used the valuation to inform the list price. If you use the valuation amount to inform your list price (i.e. offers over “valuation price”), a green tick will appear in your listing on the Site. This is to provide some useful guidance to Buyers as to the approximate price of the real estate.
(d) If you use a property valuer that is a Supplier, you authorise us to receive a copy of the valuation direct from the Supplier, and we are entitled to receive the valuation before you receive it, so that we can prepare your draft listing for you.
4.3 How your real estate is marketed
(a) Once a Seller has completed all mandatory fields for a Site and submitted the real estate, it will be displayed on the Site for sale.
(b) You may also opt-in to receive off-market offers from Buyers who are Approved Buyers' Agents (as described below). If you opt-in for this service, we will make available your draft listing through the Site to Approved Buyers' Agents, in the same format that we send the draft listing to you following receipt of your valuation, except that the Approved Buyers' Agents will not be able to view your valuation report. Approved Buyers' Agents will be able to identify your valuation price by the list price returned to you through your draft listing. Approved Buyers' Agents may request private inspections or make an offer, subject to contract. You are not required to respond to or accept any offers (subject to contract).
4.4 Buyer rules
If you are a Buyer you must comply with certain obligations.
(a) You must have the legal power and capacity to enter into a contract of sale for any real estate or you must have the authority to act on behalf of another person who has the legal power and capacity to enter into a contract of sale for any real estate, or both.
(b) Any dealings you have on this Site must be in good faith and we may suspend or terminate your use of the Site, if we consider you are not acting in good faith including if you make below market offers in bad faith.
(c) Buyers can nominate their purchasing power on the Site. If they do so and if the purchasing power nominated surpasses the amount offered by the Buyer for the real estate, the Seller will be able to see on the Site, that the Buyer's nominated purchasing power exceeds the amount offered for the real estate.
(d) If a Buyer saves a search or carries out a search for real estate, the Buyer agrees that there is no commitment from Airlisting that such real estate will be made available by a Seller for sale through the Site.
4.5 Approved Buyers' Agents
(a) We may at our discretion allow registered buyers' agents to be Buyers from time to time to and who are permitted to receive an off-market alert for new real estate listings on the Site, where Sellers opt-in to such functionality. We call such Buyers Approved Buyers' Agents.
(b) Buyers may only be Approved Buyers' Agents, if they are current members of real estate buyers' associations. We may at our absolute discretion approve, suspend or terminate a Buyer's categorisation as an Approved Buyers Agent including if a Buyer acts in bad faith and including where they make below market offers in bad faith.
4.6 Information made available through the Site
- The Site has functionality so that a Seller is informed if a Buyer saves a search for a type of real estate and a Seller has the type of property ready to list, although the Seller will not be informed who the Buyer is.
- The Site may have other functionality to notify Sellers and Buyers of potential interested parties.
4.7 Buyer's offers and steps for entering into a binding agreement
(a) The Site enables a Buyer to make an offer for real estate, subject to contract or to accept an offer (including a counter-offer) from a Seller for real estate, subject to contract.
(b) The Site enables a Seller to accept an offer (including a counter-offer) for the real estate, subject to contract or make an offer (including a counter-offer) to a Buyer, subject to contract.
(c) In the process of making offers and accepting offers (including counter-offers), subject to contract, the Buyer, who is the relevant Member using the Site, must enter into the Site the details of the person or persons, who will be the buyer(s) under the proposed contract for sale of the real estate, including where relevant any person on whose behalf a Member is acting (Prospective Legal Buyers).
(d) In the process of making offers and accepting offers (including counter-offers), subject to contract, the Seller, who is the relevant Member using the Site, must enter into the Site the details of the person or persons, who will be the seller(s) under the proposed contract for sale of the real estate, including where relevant any person on whose behalf a Member is acting (Prospective Legal Sellers).
(e) If an offer is accepted (subject to contract) on the Site, the Site will email and text the Seller, the Prospective Legal Sellers (where different), the Buyer and the Prospective Legal Buyers (where different) with details of the real estate, acceptance of the offer (subject to contract) and of the Prospective Legal Sellers and Prospective Legal Buyers and these details will also be provided to the nominated laws firm appointed by the Seller and Buyer.
(g) None of the above steps constitutes a binding agreement between a Seller and a Buyer to sell and purchase the real estate.
(h) Instead it is treated similar to a verbal offer that has been accepted for real estate. Each of the Seller and the Buyer must then use their best endeavours to enter into a contract for the sale and purchase of the real estate as soon as reasonably practicable and within 14 days.
(i) If an offer on the Site, subject to contract, is accepted the Site will display a message that the real estate is under offer, subject to contract, until the Seller removes the real estate from the Site or if the sale does not proceed, re-activates the real estate as being available for sale.
4.8 Property developer rules
(a) Property developers who are Sellers must comply with terms and conditions relating to Sellers.
(b) Property Developers who subscribe to AirPropertyDeveloper have administrative rights to authorise which persons may access their project information stored in the Designated Zone for their projects.
(c) Sales that reach agreement on Airlisting require formal contracts to be legally sold. This is up to the Property Developer and buyer to enable through their preferred legal representation.
- Payment of fees
You must pay all fees when they are due and payable. The fees described in this fee policy are inclusive of GST, unless they are expressed otherwise. In addition, we may charge you for our costs incurred in providing card facilities for payments by a credit or debit card or other form of payment. Our fee for using a credit or debit card or other form of payment will be specified on the Site at the time that you provide us with the relevant card or account details or we debit a fee from you.
- Account authorisation
In order to use the Site as a Seller or a Property Developer using AirPropertyDeveloper you must provide us with credit or debit card or other account details, permitted by our payment engine. By completing the relevant details and authorisation you authorise us to debit fees which are due to us under the Terms or to pay Suppliers for products or services which you have ordered through the Site.
- Late payment
If you do not pay us on time, we may charge you late payment interest of 10% per annum.
2 Airlisting Sale Fee payable by Seller
- What is the Airlisting sale fee?
A Seller must pay us a fee we call Airlisting Sale Fee in certain circumstances described below. The Airlisting Sale Fee is set out in the Fees Table part of this Fee Policy.
- When is the sale fee payable?
- Unless the Seller is selling off-the plan, as described in clause 2.2(a), the Airlisting Sale Fee is payable by a Seller if you, or the person on whose behalf you are marketing the real estate for on the Site, or both Settle the Sale with any Site Connected Buyer and the Sale is Connected with the Site. This is called a Standard Sale.
- If the real estate is off-the plan, the Airlisting Sale Fee is payable by a Seller if you, or the person on whose behalf you are marketing the real estate for on the Site, or both enter into a contract for sale of the real estate (and regardless of whether the contract for sale becomes unconditional or settles or completes) with any Site Connected Buyer and the Sale is Connected with the Site. This is called an Off-the Plan Sale.
- Settle the Sale. This means the sale of the real estate has settled or completed. Payment is due at this time. It can be organised to occur through the settlement process if you are using a law firm, which is Supplier under the Site and you have instructed them to make such payment.
Site Connected Buyer. This means a person who buys the real estate and that person is any of the following:
- a Member or was a Member;
- a person for whom a Member is or was acting as agent when using the Site (including customers of a buyer's agent and relatives and personal friends); and
- a person connected with the Member (including a company, personal friend or relative) that is used to purchase the real estate.
Site Connected Sale. This means any of the following:
- an offer has been accepted through the Site, subject to contract; or
- you had communications with the Buyer through the Site or the Site Connected Buyer learnt about your real estate from the Site; or
- the Site Connected Buyer learnt about your real estate from a third party site (including Domain or realestate.com.au) on which Airlisting advertised the real estate and contacted the Site or Airlisting about the real estate or otherwise communicated or interacted with Airlisting or communicated with you through the Site.
The sale fee is payable by the Seller who is or was the Member and whether you are still a Member or not. When we refer to persons in the Terms we mean any individual, company, partnership, unincorporated association or other legal body.
- Date of payment
For a Standard Sale, a Seller must pay us the Airlisting Sale Fee on the date you settle or complete. For an Off-the Plan Sale, a Seller must pay us the Airlisting Sale Fee on the date the legally binding contract for sale is entered into. It is the Seller who is the Member of the Site, who has the contractual obligation to pay us the Airlisting Sale Fee.
- How to make payment
You authorise us to debit your Account for the Airlisting Sale Fee when due and you may also arrange for a third party to pay us on your behalf.
If a Seller is acting on their own behalf in connection with the sale, the Seller must instruct their solicitor or licensed conveyancer or other person who receives settlement funds (where they are received) to make payment direct to us for the Airlisting Sale Fee. If a Seller is acting on behalf of other persons in connection with the sale, and wishes the Airlisting Sale Fee or other fees to paid from the settlement funds, the Seller must procure that the persons selling the real estate instruct their solicitor or licensed conveyancer or other person who receives settlement funds (where they are received) to make payment direct to us for the Airlisting Sale Fee. The Seller also authorises us to contact those persons to arrange payment.
You may also make payment by other means.
- How do we know when the Airlisting Sale Fee is due?
For a Standard Sale, you have an obligation to inform us when you settle or complete a sale . For an Off-the Plan Sale, you have an obligation to inform us when you enter into a contract for sale. You must also authorise any solicitor or licensed conveyancer or other person to inform us. We also may identify this has occurred from any Content you provide to the Site or from public records for real estate transactions.
3 Subscription Fee for AirPropertyDeveloper
- What is the Airlisting Subscription Fee?
A Property Developer must pay a fee we call the Subscription Fee for use of the service on the Site called AirPropertyDeveloper or AirPD.
- When is the Subscription Fee payable?
The Subscription Fee is a monthly fee, payable monthly in advance prior to the commencement of the relevant month. The Subscription Fee varies depending on the price at the time the Property Developer agreed to its subscription (subject to changes in accordance with these Terms) and is calculated per real estate project. Airlisting may offer a free trial for a specified period from time to time. However once the free trial has completed, a Property Developer must pay the Subscription Fee.
4 Airlisting Administration Fees for Suppliers.
- Where stated on the Site, Airlisting may charge Sellers a fee we call the Administration Fee, when Sellers purchase products and services from Suppliers on the Site.
- The Administration Fee is a once-off fee for Airlisting's administration and associated services in connection with an order of products and services from Suppliers. By way of example:
- if you order a valuation from a Supplier, we charge an administration fee for providing the marketplace for you to order the valuation and administration associated with the order and for our services to prepare a draft listing for you based on the valuation; and
- if you order a physical sign for installation outside your real estate, we will charge you an administration fee for providing the marketplace for you to order the sign and administration associated with the order and submitting files through the relevant Supplier’s ordering system or process.
5 Supplier Fees
- Any fees payable to Suppliers are not fees payable to Airlisting, but fees payable to Suppliers. If you purchase products and services from Suppliers, you authorise us to deduct the fee from your Account and pay it to the Supplier.
- You are not obliged to use any of the Suppliers. If you do use one of the Suppliers, the Fee that they may charge you, will be the fee agreed between you and the Supplier.
- Supplier's fees may vary depending on the products and services, you are purchasing from them. For example, the valuation fee charged by valuers who are Suppliers is dependent on the value of the real estate.
- To assist Sellers, Suppliers have committed to us, not to charge Sellers more than the maximum fee set out in our Fee Policy from time to time. If a Supplier charges you or wishes to charge you more than these maximum fees, please notify us immediately.
- At our election we may agree with a Seller to pay a Supplier's fee for you in return for you reimbursing us that amount (and you must reimburse us that amount) on the earlier of the following dates:
- the date you are obliged to pay the Airlisting Sale Fee;
- the date the listing on the Site is terminated;
- the date the Seller's membership of the Site as a Seller terminates; and
- 60 days after the date you ordered the product or service.
6 Commission payable by real estate developers to Buyers
- Some Enterprise Members who are real estate developers and Sellers may market real estate at a discount or may offer to pay an amount of the sale price back to a Buyer.
- If this occurs, this is an arrangement directly between you and any real estate developer.
7 Changes to Fees
- Airlisting fees
- We may make changes to the Airlisting fees from time to time by updating the table of fees in this Fee Policy.
- The Airlisting Sale Fee that was stated on the day you first listed your real estate is the Airlisting Sale Fee that applies to the sale of that real estate regardless of the date you settle or complete the sale (for a Standard Sale) or enter into legally binding contract for sale of the real estate (for Off-the-Plan Sale). When you list a specific real estate, we will not change the Airlisting Sale Fee that was in place at the time that you first listed that real estate. In this way you know the Airlisting Sale Fee that will apply at the time you list and subsequent changes to the Airlisting Sale Fee will only apply to your new listings.
- If we change our Administration Fee for orders from Suppliers, the change will only apply to future purchases of products and services from a Supplier, not an existing purchase.
- We will give you not less than 30 days' notice to your registered email address if there are any changes to the Subscription Fees for AirPropertyDeveloper.
- Supplier Fees
The maximum fees specified in this policy for Suppliers may change at any time, but they will only apply to future purchases of products and services from a Supplier, not an existing purchase.
8 Table of Fees (current updated [9 August 2018 ]) and maximum Supplier Fees
Pre-sale market valuation (sub $1M residential property)
$500 inc GST ($500 charged on the day of ordering)
Pre-sale market valuation ($1M - $2M residential property)
$770 inc GST ($500 charged on the day of ordering, $270 charged at valuation’s return)
Pre-sale market valuation ($2M - $4M residential property)
$1430 inc GST ($500 charged on the day of ordering, $930 charged at valuations return)
Pre-sale market valuation (above $4M, or rural)
Please contact Airlisting for a quote.
Photography & floorplans
Silver photography package (10 x edited photos, black and white floorplan)
$275 inc GST (charged on the day of ordering)
Gold photography package (15 x edited photos, colour floorplan)
$455 inc GST (charged on the day of ordering)
Drone photography (3 x drone images)
$275 inc GST (charged on the day of ordering)
Dusk timing of photography (call out fee)
$90 inc GST (charged on the day of ordering)
For Sale sign
6ft x 4ft custom For Sale sign (installed and removed)
$195 inc GST (charged on the day of ordering)
Standard advertisements on realestate.com.au and domain.com.au with unlimited updates and changes
$300 inc GST (charged on the day of ordering)
Managed Open Home or Private Inspections (up to 45 minutes) run by Airlisting Real Estate Guide
$85 inc GST / managed event (charged after the event has been completed)
Airlisting selling fee (chargeable at successful settlement)
$2,400 inc GST (charged after the event has been completed and can come from settlement funds)
1 Overview of Suppliers
The Site also enables Sellers to buy certain products and services from suppliers such as property valuers, signage manufacturers, photographers and solicitors who are registered to market their products and services on the Site (Suppliers).
These Suppliers are not part of Airlisting.
If a Seller buys a product or service from a Supplier, the Seller is entering into a separate agreement with that Supplier.
You are not required to buy any product or service from a Supplier and you may purchase equivalent products or services from any other person.
We may vary categories of Suppliers from time to time.
Some Suppliers may only provide their products or services for real estate located in specific areas.
Many of the products and services you purchase on the Site may be used for purposes unrelated to the Site. For example, a valuation report, photographs, building and pest reports and videos of your real estate may be used in connection with your listing on the Site and otherwise in connection with the sale of your real estate.
2 Types of Suppliers
The types of Suppliers will vary from time to time. Suppliers may include.
- Valuers: licensed valuers who can value your real estate.
- Solicitors and licensed conveyancers: who can act for you in connection with the sale or purchase.
- Photographers: who can take photos of your real estate and create a floorplan.
- Signage manufacturers: who can supply a physical for sale sign to be used outside your real estate. Any such sign will carry the branding "as advertised on "Airlisting" or similar.
- Real estate guide: individuals who will be at your real estate to prepare the real estate for the viewing and be at the real estate during inspections. Please note that these individuals may not be licensed real estate agents. You cannot ask them to act on your behalf or discuss or represent the property.
- Building & pest providers: who can complete a building and pest report and pool safety certificate for you.
- Videographers: who can create a video of your real estate in a format that can be displayed on the Site as well as third party real estate sites.
- External Advertisers: who can advertise your real estate on their established advertising platforms (for example realestate.com.au and domain.com.au)
3 Limitations to our responsibilities
The Suppliers are not part of Airlisting, and therefore you agree that:
- we are not responsible for Content published by Suppliers on the Site;
- we are not an agent of any Supplier, except for the purpose of collecting fees as described in the Fee Policy;
- we are not your agent in relation to the products or services provided by the Suppliers; and
- we do not provide any warranties in relation to the products or services provided by the Suppliers and we are not liable for their acts or omissions.
Refunds and complaints policy
1.1 Airlisting refunds
(a) Airlisting provides refunds in accordance with Australian consumer law.
(b) Seller refunds. This clause applies if you are a Seller and you terminate on us and all of the following circumstances arise:
(1) First, you terminate because of our proposed change to the Terms, relating to the listing functionality which are adverse to you and which is not required to comply with law or GST or if we terminate on you for convenience.
(2) Second, prior to the date we provided you with a notice of change to the Terms or a termination notice, a Supplier has already accepted through the Site an order to provide you with products or services , where the Supplier is to provide products and services after our proposed date for the change to the Terms or after the date of termination in our notice of termination for convenience.
(3) Third, the products and services can only be used in connection with a listing on the Site (Affected Supplier Products).
If you no longer wish to purchase the Affected Supplier Products, you may contact us if this has occurred. At our election, we will do either of two things.
(4) Option 1. We will arrange a refund of any Administration Fee paid to us for the Affected Supplier Products. We will also refund or arrange for the Supplier to refund the Supplier fee for the Affected Supplier Products, but only if there is no right under your agreement with the Supplier to cancel or terminate the Affected Supplier Product and then only if you have first contacted the Supplier to endeavour to cancel or terminate or obtain a refund and the Supplier has refused to do so.
(5) Option 2: We will delay the change to the Terms until after the agreed date for supply of the Affected Supplier Products or amend our notice of termination until after the agreed date for the supply of the Affected Supplier Products.
1.2 Supplier refunds
If a Seller buys a product or service from a Supplier, the Seller is entering into a separate agreement with that Supplier. Airlisting is not responsible for refunds from Suppliers, except as described in clause 1.1(b)(4). Please contact them directly. Please note that real estate guides require advance notice for any cancellation of an appointment and may not provide a refund if you cancel the appointment, unless they are required to under their agreement with you.
We aim to provide customer satisfaction.
If you have any concerns about Airlisting or the Site, please contact us at email@example.com or 1300 919 031.
If you have any concerns about any other users of the Site or any of the Suppliers, please contact us at firstname.lastname@example.org or 1300 919 031.
We will try and deal with your concern promptly.