TERMS OF SERVICE & CONDITIONS
Effective 1/April/2023
Please read these Terms of Service (the “Agreement”) carefully before using the https://www.kenekt.app website and the Kenekt application https://app.kenekt.com.au (together, or individually, the “Services”) operated by Kenekt Group Pty Ltd. (“Kenekt”, “us”, “we”, or “our”). Your (“Customer,” “you”, or “your”) access to and use of the Services is conditioned upon your acceptance of and compliance with this Agreement. This Agreement applies to all visitors, users and others who wish to access or use the Services. By accessing or using the Services you agree to be bound by this Agreement. If you disagree with any part of this Agreement, please email us at team@kenekt.com.au and do not access, browse or otherwise use the service till you have discussed the terms with us.
FEES & PAYMENT
If you wish to purchase any product or service made available through Kenekt, you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.
The Services may employ the use of third party services for the purpose of facilitating payment and the completion of Purchases. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.
You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorise us to charge your chosen payment provider for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation.
We reserve the right to refuse or cancel your order at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service and error in your order. We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected.
CANCELLATION
You can cancel your subscription at any time by contacting us using the contact information provided below. Your cancellation will take effect at the end of the current paid term and you will not be entitled to a refund or credit for any Subscription Fee already due or paid.
If you are unsatisfied with our services, please email us at team@kenekt.com.au or call us at 1300 536 358. Additionally, you may cancel a Subscription Service at any time from your Stripe Subscription Account.
NON PAYMENT
We will provide you with notice of non-payment of any undisputed amount due. Unless the full amount not in dispute has been paid, we may suspend your access to the Services thirty (30) days after such notice. We will not suspend the access to the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Services are suspended for non-payment, we may charge a reactivation fee to reinstate your access to the Services.
CHANGES
We reserve the right, at our sole discretion, to modify or replace this Agreement at any time. If a revision is material we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised Agreement. If you do not agree to the new Agreement, please email us at team@kenekt.com.au and do not access, browse or otherwise use the service till you have discussed the terms with us.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of Australia, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Service, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission. Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.
USER REPRESENTATIONS
By using the Site, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Service; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Site through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Site for any illegal or unauthorized purpose; and (7) your use of the Site will not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
USER REGISTRATION
You may be required to register with the Site. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to refuse service, terminate accounts, remove or edit Customer Data, or cancel orders in our sole discretion.
CHANGE OF FEES
We reserve the right to change our Subscription Fee upon at least thirty (30) days’ advance notice. Your continued use of Subscription Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.
AVAILABILITY, ERRORS AND INACCURACIES
We are constantly updating product and service offerings for the Services. We may experience delays in updating information on the Kenekt web site regarding the Services, information in our advertising on other web sites, or information we provide as part of the Services (“Services Information”). The Services Information may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Services and we cannot guarantee the accuracy or completeness of the Services Information. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
COMMUNICATIONS
By creating an account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
CUSTOMER DATA
Our Services allow you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Customer Data”). You are responsible for the Customer Data that you or your customers/partners post on or through the Services, including its legality, reliability, and appropriateness. By posting Customer Data on or through the Services, You represent and warrant that: (i) the Customer Data you post on or through the Services is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in this Agreement, and (ii) that the posting of your Customer Data on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright or otherwise in violation of this section.
You retain any and all of your rights to any Customer Data you submit, post or display on or through the Services and you are responsible for protecting those rights. We take no responsibility and assume no liability for Customer Data you or any third party posts on or through the Services. We will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.
COPYRIGHT POLICY
We respect the intellectual property rights of others. It is our policy to investigate any claim that Customer Data posted on the Services infringes on the copyright or other intellectual property rights of any person or entity. If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to team@kenekt.com.au, with the subject line: “Copyright Infringement” and include in your claim a detailed description of the alleged infringement as detailed below, under “DMCA Notice and Procedure for Copyright Infringement Claims” You may be held accountable for damages (including costs and attorneys’ fees) for misrepresentation or bad-faith claims on the infringement of any Customer Data found on and/or through the Services on your copyright.
THIRD PARTY SITES AND APPLICATIONS
The Services may contain links to third party web sites or services that are not owned or controlled by Kenekt. Kenekt has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Kenekt shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites that you visit or services that you enable.
CONFIDENTIALITY
Each party acknowledges that as a result of the Services provided, such party (the “Receiving Party”) may receive information from the other party (the “Disclosing Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Your Confidential Information includes, but, but is not limited to, your Customer Data, internal business information, contact information including names and email addresses of clients and prospective clients, and other information about clients and prospective clients. Kenekt’s Confidential Information includes, but is not limited to, information Kenekt provides in its provision of the Services, its business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Kenekt. The Receiving Party acknowledges that the Disclosing Party’s Confidential Information will remain solely the Disclosing Party’s property and proprietary information of the Disclosing Party and that the Receiving Party’s knowledge of the Disclosing Party’s Confidential Information may enable the Receiving Party to cause the Disclosing Party’s irreparable harm upon the unauthorized disclosure of such matters. The Receiving Party covenants and agrees that it will not use or appropriate for its own behalf, or disclose or communicate, directly or indirectly, any of the Disclosing Party’s Confidential Information to any external third-party individual, firm, company or other entity or person without the Disclosing Party’s prior written consent, except to the extent necessary to perform its obligations under the Agreement.
The Receiving Party shall take all commercially reasonable steps required to protect the Disclosing Party’s Confidential Information from unauthorized disclosure to any third party and shall keep the Confidential Information protected while stored with industry standard and commercially reasonable measures typically used in similar commercial sectors.
The foregoing obligations of confidentiality do not apply to any information that: (a) is made publicly known without fault of the Receiving Party; (b) is lawfully disclosed to the Receiving Party by a third-party having the right to disclose the information; (c) is produced by the Receiving Party pursuant to legal process, or under a court or government agency order to be produced, provided that the Receiving Party shall promptly notify the Disclosing Party of the request or order so that the Disclosing Party has a timely opportunity to seek a protective order or other appropriate relief; or (d) is developed by the Receiving Party independent of the receipt of the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary set forth herein, Kenekt may collect and use data regarding the use and performance of the Services in anonymized and aggregated form, to analyze and improve the Services and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of any individual is revealed.
The Receiving Party shall, at the Disclosing Party’s option, return or destroy all Confidential Information in Receiving Party’s possession, and all copies thereof, at any time upon the Disclosing Party’s request.
LIMITATION OF LIABILITY
In no event shall Kenekt or its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Services; (ii) any conduct or content of any third party on the Services; (iii) any content obtained from the Services; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose. You acknowledge and agree that Kenekt’s maximum liability to you will not exceed the amount you have paid Kenekt in the six (6) months immediately preceding the date on which you first assert a claim.
WARRANTY & DISCLAIMER
Kenekt will provide the Services in a professional and workmanlike manner, but your use of the Services is at your sole risk. Except as provided herein, the Services are provided on an “AS IS” and “AS AVAILABLE” basis and without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or course of performance. Kenekt, its subsidiaries, affiliates, and its licensors do not warrant that a) the Services will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Services are free of viruses or other harmful components; or d) the results of using the Services will meet your requirements.
GOVERNING LAW
These Terms and Conditions are governed by and construed in accordance with the State of New South Wales, Australia. In the event that a dispute arises from these Terms, each of Kenekt Group Pty Ltd and you agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. If any provision of this Agreement is held to be invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in effect. This Agreement constitutes the entire agreement between us regarding our Services, and supersedes and replaces any prior agreements we might have had between us regarding the Services.
Australian Consumer Law – Consumer Guarantees
Nothing in these Terms is intended to exclude, restrict or modify the rights which you may have under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the “Australian Consumer Law”). If you are a Consumer, as defined in Section 3 of the Australian Consumer Law (“Consumer”), Kenekt Group Pty Ltd acknowledges that the Consumer Guarantees in Division 1 of Part 3-2 of the Australian Consumer Law will apply to the supply of goods or services (or both) under these Terms. Kenekt Group Pty Ltd’s liability for breach of a Consumer Guarantee is governed by Section 18.
“Consumer Guarantee” means a guarantee provided to a Consumer applicable to goods or services supplied or to be supplied under these Terms by operation of the Australian Consumer Law, including any Express Warranty.
Australian Consumer Law – Limitation of Liability
“Consumer Guarantee” means a guarantee provided to a Consumer applicable to goods or services supplied or to be supplied under these Terms by operation of the Australian Consumer Law, including any Express Warranty.
TERMINATION
If either party materially breaches any of its duties or obligations under this Agreement or an Order Form (the Contract that you sign to initiate the service), and such breach is not cured within thirty (30) calendar days of the non-breaching party providing the breaching party of written notice of the breach, the non-breaching party may terminate this Agreement or the applicable Order Form, as applicable.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
KENEKT MARKETPLACE
Principal & Supplier Responsibilities
Kenekt Co Pty Ltd (hereinafter referred to as the Principal) indirectly acts for and on behalf of the Stock Supplier/Builder/Developer (hereinafter referred to as Supplier) and offers services in setting up a software platform to list and display such properties (hereinafter referred to as Kenekt Marketplace).
The Supplier, in consultation with the Principal, shall appoint Project Sales Agencies/Agents (hereinafter referred to as Marketing Partners) to tender services regarding the representation and sales of their properties in the Kenekt Marketplace.
The Supplier will provide the Marketing Partner as soon as practicable following the execution of this agreement:
The Principal agrees to act diligently toward resolving any matters of conflict, should they arise, between the Marketing Partner and the Supplier. The Principal accepts no legal liability arising from or connected to any dispute between the entity buying the property (hereinafter referred to as the Purchaser), Marketing Partner or Supplier.
The Principal acknowledges that all clients introduced to the Principal or Supplier by the Marketing Partner are always acknowledged as the Marketing Partner’s clients.
The Principal is not responsible for the non-fulfilment of contracts or disagreements with the Supplier or Marketing Partner.
Kenekt provides no support towards contract negotiation, settlement, commission payments.
Marketing Partner Appointment
The Supplier appoints the Marketing Partner, and the Marketing Partner accepts the appointment to render services for selling the properties in the Kenekt Marketplace.
The appointment/Allocation (Assignment of Property for sale) hereby given may not be sole or exclusive to the Marketing Partner. The appointment is given on the understanding that the Marketing Partner is a contractor and will comply with such regulations, including the supply of a GST-compliant ABN.
Marketing Partner Responsibilities
The Marketing Partner will have in effect such current licenses, authorities and permits as required for the Marketing Partner to lawfully carry out their duties pursuant to this agreement in accordance with the law & the legislative
requirements of the Property Occupations Act 2014
The Marketing Partner will introduce clients to such projects and properties that the Principal represents on behalf of the Supplier.
The Marketing Partner will always act lawfully, in good faith and exercise the necessary due care and skill in the marketing of the properties and negotiation and execution of contracts for the sale of the properties to purchasers.
The Marketing Partner will not, to any Purchaser or third party, make any representation that is misleading, deceptive, untrue or incorrect, and in respect of representations made as to future events, shall ensure that those representations are
made with reasonable grounds.
The
Marketing Partner will not, to any purchaser or third party, make any representation that the Supplier or any other person will do or refrain from doing any particular thing in connection with the development or the sale to the Purchaser without the
consent of the Supplier, first hand and obtained in writing.
The Marketing Partner hereby covenants to indemnify and keep indemnified the Principal and its servants or agents, against any claim or demand arising in any way from any act or omission of the Marketing Partner, in breach of the terms of this agreement unless otherwise specific instructions are given to The Marketing Partner by the Principal which may contradict this agreement.
The Marketing Partner agrees to report all relevant information to the Principal regularly.
The Marketing Partner will ensure that all marketing material, price lists, stock lists and building schedules are current, accurate and in good supply, subject to the Principal providing the Marketing Partner with the above-mentioned details in an accurate and timely manner.
The Marketing Partner may not publicly list or promote the projects on their public websites or on websites such as realestate.com.au or domain.com.au without the Supplier’s written consent.
Property Supply: Non-Compete Agreement
If you subscribe to supply stock for sale in the Kenekt Marketplace, you agree to respect our relationship with Marketing Partners and pay sale commissions and fees as required.
For the entire duration of this agreement, the Supplier will not engage in any capacity with a Marketing Partner working within the Kenekt Marketplace network to sell properties directly, i.e. outside the Kenekt Agreement. The Marketing Partner, on their part, will only approach the Supplier to sell their properties in the Kenekt Marketplace.
Remunerations for Marketing Partners
The Marketing Partner shall be entitled to commissions if a purchaser enters into and settles a valid, enforceable contract of sale.
Payment terms will vary depending on the Supplier's terms and conditions and will be specified by the Supplier in their marketing agreement with the Marketing Partner. The Marketing Partner will work out details, terms and conditions of payments with the Supplier. The Principal does not take responsibility for such terms and will not provide support for non-payment of commissions and dues by the Supplier.
To avoid any doubt, where the Supplier chooses to distribute payments via the Principal, the Marketing Partner is not entitled to be paid any consultancy fees and/or commission unless the Principal has first been paid the corresponding consultancy fees and/or commission and such funds are cleared in the Principal's bank account.
Remunerations for the Principal
The Principal reserves the right to charge the Supplier a service fee for initiating the property sale. This fee will be withheld/paid to Kenekt once the initial Holding Deposit is received after the completion of a Sales Advice. The service fee amount will be decided upon initiating the subscription with the Supplier. This service fee is over and above the subscription that may be charged to the Supplier.
CONTACT US
If you have any questions about this Agreement, please contact us at: team@kenekt.com.au or call us at 1300 536 358.