Accessing the Platform
this web platform accessible at www.FLKitover.com (Platform) provided by FLK It Over Pty Limited (ABN 18 617 026 203) (we, us or our);
any services provided through the Platform (Services), including:
facilitating the entry by the relevant parties into residential tenancy agreements, sales and/or auction agreements, leasing agreements, licence agreements, property management agreements and or other agreements as provided on our Platform from time to time (Agreements);
facilitating Agreement management and administration services and other services, as relevant (including administration of rent increases), for those who pay the relevant subscription plan fees to us (Subscribers); and
such other services that we may provide from time to time.
Your use of the Platform or the Services means you agree to abide by these Terms.
We may change our Services or suspend, terminate or restrict your access to the Services, in accordance with these Terms.
Eligibility for use and acknowledgements
Our Services are only available to individuals (that is, natural persons) and entities that are capable of forming legally binding contracts under applicable law.
We reserve some parts of the Services for Subscribers. If you are a Subscriber, your subscription to the Services is not transferable, unless otherwise agreed by us.
In using the Services, you acknowledge and agree that:
while we may charge a fee for the Services, we are not a party to any Agreements; and
any Agreements, that are facilitated by the Services, are undertaken at each party’s own risk;
we are not responsible for any third party services that we connect you with through the Services, such as third party utilities providers and agents;
any statement made by a party in connection with or in any way related to, an Agreement, is attributable to that party. We do not take any responsibility for, or make any representations or warranties relating to any such statements, including as to any term of the Agreement or in relation to the property the subject of the Services or the Agreement; and
we are not responsible for any identification checks required under any Agreement, in the case of sales and/or auction agreements, the agents are responsible for completion and verification of all identity checks.
In order to use certain Services, you will need to become a Subscriber by registering with us for an account, providing the requested information, and paying the relevant subscription fee to us. You warrant that the information you supply on submitting each registration application, including for all of your approved users, is, to the best of your knowledge, accurate, complete and up to date.
The Services provided to Subscribers will depend on the subscription plan selected by you (Subscription Plan). To find out more about our Subscription Plans, please contact us at email@example.com or see the Platform.
We may add to or change features on any of our Subscription Plans from time to time as detailed on the Platform or otherwise notified to you. Please regularly check the Platform for updates that may affect your Subscription Plan.
If we need to remove any features from your Subscription Plan, we will use reasonable endeavours to notify you in advance, but do not guarantee that we will always be able to provide such notification.
We will not use your logo on our marketing materials, including our Platform, without your prior consent and subject to any terms and conditions that you reasonably impose.
Fees and charges
Prospective purchasers, licensees, lessees and tenants can access the Platform and the relevant Services to review and execute their Agreement without paying any fees to us.
Each Subscription Plan is subject to the payment of the relevant fee by Subscribers to us.
The Subscription Plan fees are inclusive of goods and services tax (GST), where applicable.
As a Subscriber, you agree to pay all applicable fees and taxes to us in connection with the relevant Subscription Plan selected by you, by one of the methods described on the Platform or as otherwise notified to you. Our fees are charged on monthly basis in advance.
All fees are in Australian dollars, unless otherwise stated.
You hereby authorise the collection of the relevant Subscription Plan fees by charging the credit card provided by you to us, or our payment processor, Stripe, or any other payment method described on the Platform.
If we do not receive payment of any of your fees within the relevant period requested by us, without prejudice to our other rights, we reserve the right to restrict your access to any of our Services, downgrade your Subscription Plan or terminate the Services to you, without further notice to you.
If payment is due from you, but your credit card on file is no longer valid or active, we may attempt to contact you to determine updated account information. We will usually make 3 attempts to contact you before cancelling your account in such instances.
We reserve the right to change our fees for any of our Subscription Plans or other Services at any time at our discretion. We will provide you with reasonable notice (at least 14 days’ notice) in writing of any new fees or changes to existing fees prior to commencing charging such fees. Your continued use of such Services, after the expiry of the 14 day period, will constitute your acceptance of such amendments to our fees.
If you do not agree to our new or amended fees on your Subscription Plan, you may terminate your subscription for the Services by emailing us at firstname.lastname@example.org, stating the reason for your termination. We will then cease the provision of such Services to you, with effect from the end of the current monthly Subscription Plan cycle in which you terminate your subscription for the Services.
You may upgrade your Subscription Plan to a higher level of Subscription Plan (e.g. from Small to Medium), at any time, by selecting the ‘change plan’ button on your Subscriber dashboard on the Platform and on payment of the relevant fees for the new Subscription Plan.
If you are close to the maximum number of Agreements permitted for your Subscription Plan per month, we will notify you and you will have the option to change your Subscription Plan, by selecting the ‘change plan’ button as detailed in section 4(k).
Your new Subscription Plan will commence immediately on payment of the relevant fee for the higher Subscription Plan.
If you wish to downgrade your Subscription Plan to a lower Subscription Plan (e.g. from Large to Medium), you can do so by selecting the ‘change plan’ button on your Subscriber dashboard on the Platform.
When you upgrade or downgrade your Subscription Plan, we will refund you the balance of your previous Subscription Plan fee, on a pro rata basis, for the remainder of the month and charge you the new Subscription Plan fee, on a pro rata basis, for the rest of that month.
Your downgraded Subscription Plan will commence once we issue confirmation to you of your new Subscription Plan.
Our Services come with guarantees that cannot be excluded under the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL).
provided with an unacceptable level of care and skill;
unfit for the purpose you asked for; or
not delivered within a reasonable time when there is no agreed end date.
If you cancel the Services for the reasons outlined in section 5(b) above, we will provide you with a refund of your Subscription Plan fee in the same form as your original payment, in accordance with these Terms. To the extent permitted by law, including the ACL, we do not otherwise provide any refund of fees paid in connection with the Services.
In this section 6, GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and terms used which are not defined in this document, but which are defined in the GST Law, have the meanings given in the GST Law. Unless stated otherwise, all consideration provided under this document is exclusive of GST. If GST is payable by the party making the supply (supplier), the recipient must, upon receipt of a tax invoice from the supplier, pay the supplier an amount equal to the GST payable on that supply.
Your rights and obligations in respect of the Platform
You may view and download and/or print any of the content on the Platform, including all text, graphics, images, information or any materials including template Agreements and special conditions and annexures provided by us on the Platform (Content) that we have expressly permitted may be printed or downloaded on your personal computer, laptop, smart phone, tablet, PDA or other similar device, to avail of our Services or for use in a personal and non-commercial capacity.
You agree that you will not:
alter or remove any copyright, trade mark or other proprietary notice of ours or of any other company or person on the Platform;
modify or edit the Content or publish, sell or license any Content, including, but not limited to, making the Content available on any other website;
to the maximum extent permitted by law, reverse engineer, translate, adapt or modify any software used in connection with the Platform;
create any links from any other website to the Platform, without our express prior written permission;
use any Content on the Platform for any commercial purpose other than as permitted by us;
use any robot, spider, other automatic device or manual process to monitor or copy any Content, without our prior written consent;
post to the Platform or transmit to us any content that contains viruses or other harmful computer code, files or programs designed to interrupt, limit or destroy the functionality of any computer software or hardware;
use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or the Services or to gain unauthorised access to the Platform, the Services or our computer systems or any activity that disrupts, diminishes the quality of, or interferes with the performance or functionality of the Platform or the Services;
use the Services to send any emails or communications to any third party which constitute or contain ‘affiliate marketing’, ‘junk mail’, ‘chain letter’, ‘pyramid schemes’, spam or ‘unsolicited commercial electronic messages’ as defined in the Spam Act 2003 (Cth) (or any amendments to, or replacements of, this legislation) or which otherwise breach that act; or
take any action that imposes an unreasonable load on the Platform’ infrastructure.
You are responsible for who has access to your Platform account (Account). You must keep your password and username to access the Platform and to use the Services safe and secure. Do not disclose your passwords to third parties.
If your contact details change, you are responsible for notifying us of such changes.
Subscribers may upload and store draft and executed Agreements, special conditions and annexures to Agreements, emails and other messages as permitted by the Services, details of vendors, purchasers, licensors, licensees, lessors, lessees, landlords, tenants, agents and property information required to complete Agreements or other materials to the Platform as permitted by us (Subscriber Content).
Subscribers are entirely responsible for each individual item of Subscriber Content that they upload, email or otherwise make available via the Services.
If a Subscriber requests our assistance with any Subscriber Content, such as to insert, amend or delete provisions of an Agreement, or if a Subscriber implies consent that we may assist with such Subscriber Content, either by written or oral means, or a Subscriber fails to inform us that any Subscriber Content should be removed, the Subscriber is still responsible for such Subscriber Content.
We are not responsible or liable for any Subscriber Content (including any Subscriber Content in Agreements) uploaded, downloaded, posted, emailed to or otherwise made available through the Services. As a Subscriber, you warrant that you have reviewed and checked all Subscriber Content, including all Agreements, prior to the Agreements being signed by either party and that the parties have given the requisite permissions to sign the Agreements via the Services. You indemnify us against any loss or damage of any kind suffered by you in relying on the Subscriber Content, the Services or the Platform (other than where such loss or damage is caused by a breach, by us, of these Terms).
You acknowledge that while you may store Agreements on the Platform, the Platform and the Services do not comprise a backup or storage service for Subscriber Content and you are responsible for Subscriber Content.
You acknowledge that we may establish limits concerning use of the Services, including the maximum number of days that Subscriber Content will be retained on the Platform, the maximum number and size of email messages, or other Subscriber Content that may be transmitted or stored via the Services, and the frequency with which you may access the Platform.
You agree that we have no responsibility or liability for the deletion or failure to store any Subscriber Content maintained or transmitted via the Services.
You acknowledge that we reserve the right, at any time, to modify the Services (or any part thereof), in accordance with these Terms and that we will not be liable to you or to any third party for any modification of the Services. We will not modify the Services, in a way that is, in our reasonable opinion, detrimental to you, without providing you with notice in advance.
All intellectual property rights in:
all Content and other information included on the Platform; and
the arrangement of the Content on the Platform, are owned by us or our licensors.
To the extent required for us to provide our Services to you, you grant to us a non-exclusive, royalty free, non-transferable licence to use, reproduce and modify (including the right to sub-license) any Subscriber Content of which you are the owner or licensee of the intellectual property rights, on and from the date of your first Subscription Plan payment, until the Services as between you and us are terminated or expire.
No duplication, public transmission, modification, deletion or reproduction of the Content may be made without our permission, except for printing and storage for personal use or other specific use permitted under copyright law.
Any use of the trade marks, logos or product names appearing on our Platform, without permission from us or the relevant rights holder, is prohibited except where specific use is authorised under trade mark law or other laws.
You must not upload any materials through the Platform, or use the Services, for purposes which are obscene, offensive, defamatory, discriminatory, inaccurate, fraudulent, misleading, unlawful, pornographic, promote violence, are hateful or which in any way infringe any third parties’ rights, including their intellectual property rights and privacy rights or circumvent storage space limits.
The Platform aims to provide you with clear and succinct information. However, if you misinterpret such information, we are not liable in any way for any such misinterpretation. Please contact us if you need to clarify something.
The information provided on the Platform is provided for general information purposes only and does not constitute professional advice. You must exercise independent skill and care in selecting any of the Services (and any third party services) referred to on, or made available through, the Platform. We do not give any advice as to the appropriateness or suitability of the Services for you.
We do not give or claim to give legal, taxation or financial advice. It is solely your responsibility to ensure that the Services you obtain through the Platform meet your requirements. If you are unsure about your requirements, you should contact your lawyer, accountant or financial advisor.
By using our Services, you warrant that the information you supply is, to the best of your knowledge, accurate, complete and up-to-date. It is your responsibility to inform us of any changes to that information. You may do this by contacting us at hello@FLKitover.com.
You must comply with all laws in connection with or in relation to the Services, including all real property or conveyancing legislation (as relevant to each State and Territory of Australia), all landlord and tenant legislation, privacy legislation and the ACL.
Subscribers are responsible for verifying the identity of prospective purchasers. licensees, lessees or tenants, including identity verification by way of copies of passports, driver licences or photographs, mobile phone numbers and signatures and for ensuring that all Agreements and their execution comply with the relevant legislation. We are not responsible, in any way, for any act or omission of any person with respect to Agreements. Subscribers indemnify us for any loss or damage of any kind suffered by any person with respect to the verification of vendors, purchasers, licensors, licensees, lessors, lessees, landlords, agents and tenants’ identities or authorisations to use the Services, including to execute Agreements through the Services.
If your residential tenancy agreement relates to a property in New South Wales or Western Australia, you must ensure that your signature is witnessed and that the name of the witness is input on the Platform, where indicated, at the time that you sign the residential tenancy agreement, using the Services.
Once an Agreement has been executed by the parties through the Services, any further changes or variations relevant to such Agreement will be agreed between the parties to the Agreement and not through the Services, unless otherwise notified to us.
We may, at any time, request a form of identification to verify your identity or the identity of other relevant persons in connection with our Services.
Neither we (nor any of our authorised representatives) will be liable for any charges or other damages or loss arising in connection with any incorrect information provided by you or any third party.
Your completion of an Agreement through the Platform, including submitting your signature, does not mean that you have entered into a legally binding Agreement. Entry into the Agreement will be subject to all relevant legal requirements.
You will not have entered into a legally binding Agreement until:
you have provided all of the information required by the Services for entering into the Agreement, including valid execution of the Agreement;
all other parties to the Agreement have also provided all relevant information and validly executed the Agreement; and
a copy of the fully executed Agreement is provided to each of the parties to the Agreement through the Services, as required by law.
We are not liable to you or anyone else if you are not able to enter a legally binding Agreement through the Platform, including in circumstances where any party to the Agreement:
fails to provide all information needed to enter into the Agreement;
provides inaccurate or false or misleading information; or
fails to execute the Agreement.
You are responsible for keeping a copy of your Agreement and any relevant information. We recommend that you save a copy of the executed Agreement to your system or print a copy of it, for your record keeping purposes, as soon as you receive a copy of the executed Agreement through the Services. Subscribers may retain copies of Agreements on the Platform through the Services for the term of their Subscription Plan.
Other parties’ products and services
If you use our Services with any third parties’ products or services, such as a third party hosting service provider, we are not responsible for any loss arising from or in connection with such use of third party products or services. We do not warrant that any of the Services are interoperable or are compatible with any such third parties’ products or services.
Accuracy of information
We are providing the Platform, the Content and the Services on an “as is” basis. While we try to keep the information on the Platform as accurate, complete and up to date as possible, we do not represent or make any warranty in respect of the accuracy, reliability, completeness, currency of any of the Content, contained in or distributed through, or linked, downloaded or accessed from the Platform.
Availability of the Platform
While we try to ensure that the Platform, including the Content, functionality, performance and features are available continuously, we do not represent or warrant that access will be secure, error free, uninterrupted or timely or that the Platform or the related server are free of viruses, bugs or other harmful applications or interference. You are responsible for implementing sufficient procedures and virus checks to satisfy your own requirements.
We will use reasonable efforts (but do not guarantee) to provide advance notice, to our registered users, by email (to the email address on our records) of any scheduled unavailability of the Platform or any of our Services, for maintenance, updating or any other reason. We are unable to provide advance notice of any unscheduled unavailability of the Platform or where urgent repairs or patches are required.
We may suspend your access to the Platform without prior notice due to maintenance, system failure, repair or any other reason beyond our control.
Overseas recipients of your personal information are not subject to Australian law, including the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles. The laws applying to such overseas recipients may differ from Australian laws and may apply a greater or lesser standard of protection for your personal information.
By accepting these Terms, you:
acknowledge that we will not be accountable under the Privacy Act for such disclosure and that you will not be able to seek redress under the Privacy Act.
If you become aware of, or suspect that there has been, an unauthorised access to, or unauthorised disclosure of Personal Information (as defined in the Privacy Act), or Personal Information has been lost in circumstances where unauthorised access to, or unauthorised disclosure of, the Personal Information may occur (collectively, a Data Breach), then you must promptly notify us of the Data Breach.
We will use our best endeavours and take all reasonable steps to complete an assessment of any suspected or known Data Breach in relation to any Personal Information held by us through the Services in a timely manner to determine the cause and extent of the breach, including the nature of the data involved in the breach to the extent that we are able to do so given the particular circumstances of the suspected or known Data Breach.
The relevant Subscriber(s) will provide us with such assistance as we may reasonably require in relation to making the determination regarding a Data Breach.
If we assess that the Data Breach amounts to an eligible data breach as defined in the Privacy Act, we (and where relevant, the Subscriber) will comply with the notification requirements set out in the Notifiable Data Breaches Scheme as set out in the Privacy Act.
In the event of a Data Breach, we and you each agree to bear our own costs in relation to complying with this section and any other obligations relating to the Data Breach.
You indemnify us (including our officers, directors, agents, subsidiaries and employees) against any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of your breach of these Terms, or your infringement of any law or the rights of a third party in the course of using our Services, including in relation to any Agreement you enter into through the Services and any Subscriber Content.
Limitation of liability
Subject to any condition, warranty or right implied by, or any statutory consumer guarantee contained in, any law (including the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded by agreement:
we give no warranties, and you have no other rights, apart from those expressly set out in these Terms; and
all implied conditions, guarantees, warranties and rights are excluded.
We exclude, to the maximum extent permitted by law, any liability which may arise as a result of your use of the Content, the Subscriber Content, the Platform and the Services (other than as a result of a breach of these Terms by us). Where liability cannot be excluded, any liability incurred by us is, to the extent permitted by law, limited as provided and as per our option under section 64A of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (namely, to supplying the Services again, or the payment of the cost of having the Services supplied again).
Subject to the provisions of sections 16(a) and 16(b) of these Terms and despite any implication arising from any other provisions of these Terms, our total liability to you in contract, in tort (including negligence), under any statute (to the extent permitted by law) or otherwise for, or in respect of, any direct or indirect loss, costs or damages that you incur or are liable for in connection with your use of the Platform, the Services, the Content or the Subscriber Content, including but not limited to:
any loss or claim relating to an Agreement entered through the Platform;
if caused by any computer virus including a virus passed from the Platform to your computer or other device or any third party computer, or loss of online connection to the Platform, the Services, the Content, or interruption to access to the Platform, the Services or the Content,
will not exceed the fees paid by you, as a Subscriber, to us in the 12 month period prior to the event giving rise to the liability or $100 if you are not a Subscriber and no such payment has been made, as applicable.
Any reliance you place on, or any act done based on or in response to, the Content, the Services or the Platform will be at your own risk.
Third Party Sites
We may provide links to other websites which are not under our control or maintained by us (Third Party Sites).
We are providing these links to you only as a matter of convenience and, to the maximum extent permitted by law, we will not be responsible for the content of such Third Party Sites.
the Third Party Site is in any way affiliated with us;
the Third Party Site is legally authorised to use our trade marks, trade names, logos or copyright; or
we are legally authorised to use the trade marks, trade names, logos or copyright of the Third Party Site.
We take no responsibility for any Third Party Site accessed via the Platform. Nor do we make any representations, warranties or undertakings in respect of the content available on or through any Third Party Site.
If you decide to link to a Third Party Site, you leave our Platform at your own risk.
Third Party Service Providers
If requested by you, we may provide your personal information to third party service providers who provide services relating to matters regarding your sale, lease, licence, moving or a new tenancy, such as valuers, surveyors, makers of signage and promotional materials, home decoration stylists, tradespeople, removalists, cleaners, utilities providers and utility connection agents and agents, removalists and cleaners (Third Party Service Providers).
We are connecting you with the Third Party Service Providers only to assist you with your sale, purchase, licence, move, lease or your new tenancy. To the maximum extent permitted by law, we will not be responsible for the goods or services provided by any Third Party Service Providers. We do not guarantee that any Third Party’s goods or services can be provided to you.
Your interactions with any Third Party Service Providers, including payment and delivery of goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party Service Providers. You should make whatever investigation you feel necessary or appropriate before making any decision to obtain their goods or services.
Any reference to any Third Party Service Provider on the Platform or any introduction to such Third Party Service Providers which we provide does not imply that the Third Party Service Provider is in any way affiliated with us or that we endorse them or their goods or services.
We do not make any representations, warranties or undertakings in respect of the goods or services provided by or through any Third Party Service Providers.
We reserve the right to immediately delete or deactivate your account, block your IP address, or otherwise immediately terminate your access to all or any part of the Platform, the Content, Subscriber Content (where relevant) or the Services if you breach any of these Terms and if you are a Subscriber, in addition to termination for your breach:
if there is a change in control, ownership or management of your business, where “control” includes the ability to determine the outcome of your financial or operating policies; or
if you sell or otherwise dispose of substantially all of your business assets to a third party; or
if you fail to make any payment within 14 days of the last payment date.
We may otherwise delete or deactivate your account, block your IP address, or otherwise terminate your access to the Platform, the Content, the Subscriber Content (where relevant) or the Services upon reasonable notice, which will not be less than 14 days.
We will not be liable to you or any third party for any termination, in accordance with these Terms, of your access to the Platform, the Content, the Subscriber Content (where relevant) or the Services. You agree not to attempt to use the Platform, Content, the Subscriber Content or the Services after termination pursuant to these Terms.
If we terminate these Terms with you for any reason other than the reasons in section 19(a) we will refund such portion of fees for the Services paid by you up to the date of termination on a pro rata basis for the portion of the relevant billing cycle remaining.
If you terminate these Terms with us in accordance with section 19(c) or if we terminate the Terms with you under section 19(a), then any fees paid by you prior to termination are not refundable to you and you must pay all outstanding fees due to us for the Services provided up to the date that the Terms terminate.
On termination or expiration of these Terms, as between us and you for any reason:
you agree to promptly return, delete or destroy (at our option) our confidential information and any materials provided by us to you during the term of these Terms;
we agree to promptly return, delete or destroy (at your option) your confidential information provided by you to us during the term of these Terms;
you will not have access to your account, including Subscriber Content which was submitted by you during your Subscription Plan up to the date of termination or expiration, unless otherwise agreed by us;
you will delete any links to the Platform from your websites;
you will immediately cease use of our intellectual property, such as our trade marks and the Content and will remove any trade marks from all of your materials, including your online properties;
if we have used your trade marks, including your logos, in our promotional materials and on our Platform, we will cease to do so;
we will immediately cease use of any Subscriber Content provided by you;
you may continue to use any Agreements or rent increase letters generated by you through the Services which you have already downloaded through the Services prior to termination; and
we will cease use of your Subscriber Content, subject to your acknowledgement that all backup copies of your Subscriber Content already stored on our systems, to the extent that they exist, may remain on our systems for archive purposes.
Modification to Terms
We may amend these Terms and any of our other policies relating to the Platform and the Services, at any time, at our discretion. We will notify you of any such changes, either by email, SMS, by notifications on the Platform or otherwise. Any such amendments are effective upon being published on the Platform or as otherwise notified.
You are responsible for reviewing these Terms regularly. Continued use of the Platform and our Services after any such amendments constitutes your consent to such amendments.
If you do not agree to any amendments to the Terms or any of our policies, then you may terminate the Services between us and you, by providing us with 14 days’ notice in writing – by emailing us at email@example.com, stating the reason for your termination. We will then cease the provision of such Services to you, with effect from the end of the current monthly Subscription Plan cycle in which you terminate your subscription for the Services.
A reference to the singular includes the plural number and vice versa.
If any provision or part of these Terms is for any reason declared invalid or unenforceable, the validity of the remaining portion is not to be affected and the remaining portion is to remain in full effect.
Subject to any separate agreements between us and paid Subscribers for our services, these Terms record the entire agreement between you and us in relation to your use of the Platform, the Content, the Subscriber Content (where relevant) and the Services and supersedes all previous negotiations, understandings, representations and agreements, in relation to the subject matter of these Terms.
Updated: 13 June 2019