Downsizer – Terms and Conditions
Last updated: 30 April 2024
Block Builder Pty Ltd trading as Downsizer Global (Downsizer, we, us or our) operates a platform which allows property developers and real estate agents to list properties online, and for end users (End User, you, your) to express their interest in purchasing properties (the Platform). The Platform is made available to users via our website www.downsizer.com.
By using the Platform and Services, you agree to the following terms and conditions and a binding agreement will form between you and Downsizer (Terms). You may not use the Services unless you have agreed to these Terms.
The meaning of defined words are set out at the end of these Terms. These Terms apply in addition to any other document referred to in the Terms, including our Privacy Policy, available at https://app.downsizer.com/privacy.
1. PROVISIONS OF THE PLAFORM AND SERVICES
1.1 Platform and Services
Downsizer operates the Platform, which (amongst other things) permits you to view Listings offered by Developers and submit expressions of interest to Developers for the purchase of Listings. Subject to these Terms, Downsizer agrees to make the Platform and related services (together, the Services) available to you. Downsizer reserves the right to add, remove and update features and functionality of the Platform at any time, and you acknowledge that fees may apply for the provision of the Services or other features or functionality provided by Downsizer or a Developer.
1.2 Sales process
Downsizer is not a party to any sales process, which would occur between you, the Developer and Deposit Power. Downsizer's role is limited to providing the Platform.
You will be responsible for assessing Developers and any potential sale of a Property. Downsizer will not be a party to any contract of sale related to a potential sale of a Property. You must obtain your own tax, financial, and legal advice in relation to any potential sale of a Property, as Downsizer does not provide any such advice.
2. Use of the Services
You must ensure that any information provided by you is complete, accurate, up-to-date and meets any other requirements notified to you by Downsizer from time to time.
You must comply with the use requirements set out in clause 3 and any additional terms or conditions made available on the Platform from time to time.
Certain aspects of the Services are provided by third parties, including the provision of data, components and pre-verification of end users (if applicable). You acknowledge that additional terms may apply to your use of such third party items (Third Party Terms), which will be made available on the Platform. You acknowledge that the Third Party Terms, and the privacy policies of any of those third parties, will apply to the use of their services.
3. PERMITTED USES
3.1 Use requirements
Downsizer cannot guarantee that the Platform will work under all conditions or on all devices. You are responsible for ensuring that you have all equipment, software and services (such as internet services) necessary to access the Services. If you have any questions, you can review Downsizer's user guides and frequently asked questions provided on the Platform.
Subject to clause 6(d), Downsizer is not responsible for any failures of the Platform due to issues with equipment, software or services used by you to access the Services or the inability of you to access any necessary equipment, software or services.
3.2 Prohibited uses
You agree that you will not, and will not permit or encourage any other person to, use the Services:
(a) to modify, adapt, translate, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of any portion of the Platform;
(b) to develop a competitive product or service, or copy any features, functions, interfaces or graphics of the Platform;
(c) in a manner that:
(i) could harm, disable, destroy or interfere with the Services, including any material that contains viruses, worms, spyware, adware, or other potentially damaging programs or files;
(ii) is false, fraudulent, misleading or deceptive (including impersonating any other person, or falsely stating or otherwise misrepresenting your affiliation with any person or entity);
(iii) interferes with the standard operation of the Platform or the use of the Platform by other users; or
(iv) violates, or would cause Downsizer to violate, any applicable law (including any laws or regulations applicable to privacy, surveillance, anti-spam, and export controls); or
(d) use any robot, spider, scraper, or other automated or manual means to access the Platform or the Services, or copy any Content or any of our confidential information, or misuse any of our APIs or third party services.
4. INTELLECTUAL PROPERTY
You acknowledge and agree that the Content, including the content and compilation of the Platform and any Services, and the trade marks, service marks, trade names and business names (in each case, including any attached rights in goodwill) of Downsizer, Deposit Power and any Developer (Marks), are owned by, registered by, or licensed to, Downsizer or its licensors (including Deposit Power and Developers who use the Platform).
Downsizer grants you access to the Platform (including Content) for your personal use only, to the extent necessary for you to use the Services, for the duration of the term of these Terms.
You acknowledge and agree that the only rights granted to you in relation to the Services are those expressly specified in these Terms. All other rights are expressly reserved by Downsizer and its related entities and licensors, including Deposit Power and Developers (where applicable).
5. PRIVACY
Downsizer will comply with applicable privacy laws and will handle personal information in accordance with the terms of its Privacy Policy available https://app.downsizer.com/privacy (as amended from time to time).
6. ACCESSIBILITY
Downsizer will continue to work towards meeting the latest standard of the Web Content Accessibility Guidelines at an AA level. We will continue to improve the website to meet changing web accessibility standards. Still, we cannot guarantee that all content meets this standard at the present moment. If you need help accessing information on our site, please email us. If you have suggestions on how we can improve its accessibility, please get in contact as well. Our email address is hello@downsizer.com
7. MODERN SLAVERY
We want to find and end any slavery and human trafficking in our business and supply chains.
We act with ethics and integrity in our business relationships.
We respect human rights and the integrity of individuals.
We aim to ensure we comply with all relevant modern laws when running our businesses. We encourage all our employees to report malpractice or illegal acts. This includes suspicion of modern slavery and human trafficking. This extends to past employees, partners and contractors as well.
8. DIVERSITY & INCLUSION
Downsizer is a global company that values the diversity of our employees. We bring together people from various backgrounds with different skills, experiences, and viewpoints. Diversity embodies all the differences that make us unique and applies to everyone. This includes any gender identity or sexual orientation. It consists of all races, nationalities, religions, and ages. It includes people with disabilities. Our workplace is one of inclusivity, respect, openness, honesty, trust, and cooperation. The diversity of our people at Downsizer is a genuine strength.
9. DISCLAIMER
You use the Services at your own risk. Information on the Platform is illustrative in nature and remains subject to change without notice. Content, including images, illustrations plans and descriptions, are provided by Developers only for convenience, and may not be an accurate representation of the Property. You should rely on your own independent enquiries, and seek expert advice where required before entering into any contract of sale for purchase of a Property. These Terms and any Content on the Platform does not constitute an offer or inducement to enter into a legally binding contract, nor does it form part of any contract of sale.
You acknowledge and agree that, to the extent permitted by law (including the Australian Consumer Law), and subject at all times to clauses 8.1, Downsizer:
(a) disclaims all representations and warranties, express, implied or statutory, not expressly set out in these Terms, including any implied warranties of merchantability, fitness for a particular purpose and non-infringement;
(b) does not make any representation or warranty that the information provided on, or made accessible via, the Platform is reliable, accurate or complete;
(c) does not warrant that the availability of the Services or that your use of the Platform will be uninterrupted, error-free or that any errors will be corrected. The Services are provided to you on an "as is" and "as available" basis; and
(d) is not responsible for any delays, interruptions, delivery failures or delays, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, theft, alteration or unauthorised access to records, or any other loss or damage resulting from any matter outside of its reasonable control (including any outage of the Services); and
(e) is not responsible for the accuracy, suitability or currency of any information accessed or received by you in connection with the Services, your use of, or reliance on, the Services and any Content, any feedback, commentary or Content uploaded to the Platform by a Developer, or the actions or inactions of you or any other users.
For clarity, nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by applicable law (including the Australian Consumer Law) that cannot be limited or excluded.
10. INDEMNITY
You agree to indemnify Downsizer from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) (Loss) incurred, suffered or arising out of on in connection with:
(a) your breach of clause 3.2 of these Terms or any Third Party Terms; or
(b) your use of the Platform, the Services or any Content or Marks in breach of these Terms.
Your liability under this clause will be reduced to the extent Downsizer directly caused or contributed to any such Losses.
11. LIABILITY
11.1 Limitation of liability
Subject to clauses 8.2 and 8.3, to the maximum extent permitted by law (including the Australian Consumer Law), the liability of Downsizer will be limited in all cases (including contract, tort (including negligence), in equity, or under statute) to, at Downsizer's discretion:
(a) the resupply of the Services to you; or
(b) the cost of resupplying the Services to you.
Neither party will be liable for any loss not arising naturally according to the usual course of things, loss of profit or savings, loss of goodwill or damage to reputation, loss of data, or loss that is indirect, incidental, special, consequential or exemplary.
11.2 Exclusions from limitation of liability
Notwithstanding clause 8.1:
(a) neither party's liability under these Terms (including in contract, tort (including negligence), equity, or under statute) is limited in relation to personal injury (including sickness and death), fraud, wilful misconduct or any unlawful act or omission, or other liabilities that cannot be limited by law; and
(b) your liability under these Terms is not limited in relation to the non-payment of fees (if applicable), a breach of any Third Party Terms or the prohibitions under clause 3.2 by you, or an infringement of Intellectual Property Rights by you.
11.3 No exclusion
Nothing in these Terms limits or excludes any liability imposed by law (including the Australian Consumer Law) that cannot limited or excluded.
12. TERMINATION AND SUSPENSION
12.1 Termination
You can stop using the Platform at any time and without providing notice. Downsizer may immediately terminate these Terms or withdraw or suspend the Services for any reason, at any time and without providing prior notice.
Termination or stopping your use of the Platform will not affect any other agreements you have with us or with any third parties, including any contract of sale with a Developer.
12.2 Survival
Terms that by their nature continue to apply after termination or the date you stop using the Platform will survive, including indemnities, licences and clauses 4, 5, 6, 7, and 9.2.
13. GENERAL
13.1 Governing law
This document and any dispute arising out of or in connection with these Terms is governed by the laws of the State of New South Wales within the Commonwealth of Australia.
Each party submits to the exclusive jurisdiction of the courts of that State and courts of appeal from them, in respect of any proceedings arising out of or in connection with these Terms.
13.2 Amendment
Downsizer may update these Terms from time to time by posting an updated version on the Platform. Your continued use of the Platform constitutes acceptance of the updated terms.
13.3 Assignment and subcontracting
Downsizer may subcontract its obligations under these Terms (in whole or in part) without your consent.
Downsizer may assign or novate its rights under these Terms at any time without your consent, including in connection with a sale of its business or assets, merger or consolidation. You may not assign or novate any of your rights under these Terms without Downsizer's written consent.
13.4 Operation of these terms and conditions
Except as set out in clauses 3.1 and 5, these Terms contain the entire agreement between the parties about their subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by these Terms and has no further effect.
Any right that a person may have under these Terms is in addition to, and does not replace or limit, any other right that the person may have.
Any provision of these Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these Terms enforceable, unless this would materially change the intended effect of this document.
14. INTERPRETATION
14.1 Definitions
The following definitions apply in these Terms.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Content means documents, photos or other information or materials, and includes both Downsizer Content and Developer Content (as the case may be).
Deposit Power means DP Bonds Pty Ltd ABN 39 625 083 810, trading as 'Deposit Power'.
Developer means a property developer or real estate agent that has entered into a Platform Access Agreement (Developer) with Downsizer.
Developer Content means Content provided or uploaded by a person authorised by a Developer to access or use the Services, in connection with the use of the Platform.
Downsizer Content means any Content that is accessible by you through the Platform or that is otherwise provided to you by Downsizer, including the Content described in clause 4, but excluding any Developer Content.
Intellectual Property Rights means all present and future rights conferred by law in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
Listing means a listing for a Property or group of Properties made available on the Platform by a Developer.
Platform means the online platform operated by Downsizer at http://www.downsizer.com/ and other related websites.
Property means a lot in an unregistered plan or a plan a Developer has registered that is offered by the Developer and is the subject of a Listing on the Platform.
Services has the meaning set out in clause 1.1.
Terms means the terms and conditions set out in this document.
Third Party Terms has the meaning given in clause 2.
14.2 Rules for interpreting this document
Headings are for convenience only, and do not affect interpretation. Except where the context makes it clear that a rule is not intended to apply, if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.