Platform Terms and Conditions for Builders and Land Suppliers // Koti

Thank you for using Koti. We are excited to offer our services to you as a builder or land supplier and are looking forward to facilitating your connections with prospective purchasers who are looking to purchase and build on vacant land.

Our online platform consists of our website located at www.mykoti.com.au and the “Koti” web application  (collectively, Platform), which are owned and operated by Koti Group Pty Ltd ACN 639 917 561 (Koti, we, us, our).

Please read these terms and conditions (Terms) carefully as they form a contract between our builder and land supplier Platform users (Supplier, you) and us (Agreement). By using the Platform, you agree with and accept the Terms in this Agreement.

This Agreement, our Privacy Policy and all policies and guidelines published on the Platform from time to time form the entire agreement between you and us. If you do not accept any terms of the Agreement, you must cease using the Platform immediately.

We reserve the right to amend the Terms at any time, and by continuing to use the Platform, you accept the Terms as they apply from time to time.

2.1          Overview

(a)       Through our Platform, we facilitate connections between prospective purchasers (Consumers) who are searching for vacant land with builders and land suppliers who are selling vacant land or who can build on vacant land. Consumers and Suppliers are collective, Users of the Platform for the purposes of this Agreement.

(b)       You can post lots, vacant land, house designs, plans, house façade images, building products or services and developer services that you offer (Supplier Posts) which can be searched and viewed by Consumers who can connect with you to further explore your products and services.

(c)       The lots, vacant land, house and land designs, plans, building products or services and developer services that you may offer are collectively Supplier Services.

2.2          Our role

(a)       We act as the developer and provider of the Platform and our role is limited to:

(i)         facilitating your access to and use of the Platform;

(ii)        taking feedback about the Platform; and

(iii)      improving and modifying the Platform.

(b)       By accessing and using the Platform, you agree and acknowledge that:

(i)         we are not responsible for, and have no control over the use of the Platform by other Users;

(ii)        we do not accept payments from Consumers for your Supplier Services on behalf of you; and

(iii)      we reserve the right, but are not obliged, to monitor, verify, modify or delete, any material or information created, generated or transmitted by Consumers and Suppliers through the Platform, including any Supplier Posts (collectively, User Content) and we do not control the accuracy of User Content.

3.1          Account Registration

(a)       To obtain access to our Platform, you must register for an account with us (Account) and accept these Terms and our Privacy Policy www.mykoti.com.au/privacy-policy which forms a contractual relationship between you and us.

(b)       To register a Supplier Account, you must:

(i)         possess the legal right and ability to enter into a legally binding agreement;

(ii)        provide current, complete and accurate information to all the items in the sign-up page of the Platform, which may include:

(A)      your full name;

(B)      valid email address;

(C)      phone number;

(D)      credit and debit card details;

(E)      whether you are a builder, land supplier or developer; and

(F)      business details including ABN and ACN (if relevant),

(together, the Registration Information).

(c)       When registering an Account, you must nominate a username and password. You are responsible for maintaining the confidentiality and integrity of the Account, Registration Information, the password and for all use and activity carried out on your Account. If you believe that there has been unauthorised access to your Account, please contact us.

(d)       The information you provide us through the Platform, including but not limited to your Registration Information, must be accurate, complete and up to date. You must promptly update all information to ensure it remains up to date. We are not obliged to confirm the identity of Suppliers (or any other User) but may, at our discretion, take reasonable steps to ensure details are accurate.

(e)       You acknowledge and agree that if the information that you provide to us is inaccurate or becomes out of date, you may not be able to use all or any of the features of the Platform.

(f)        We reserve the right to refuse to register any Supplier for any reason at our sole discretion or to deny anyone access to an Account or the Platform at any time and for any reason, without notice.

3.2          Subscription

(a)       By creating an Account, you are registering for a subscription to the Platform.

(b)       There are subscription tiers for a subscription that apply to different levels of access to the Platform, based on the volume of User Content, including Supplier Posts, that can be posted by Suppliers for each subscription period. The types and features of the available subscription plans and subscription tiers are displayed on the Platform during registration and are updated from time to time.

(c)       Each Subscription will automatically renew on the last day of the initial subscription period that you agreed to, calculated from the date the subscription begins until the subscription is cancelled or this Agreement is terminated in accordance with clause 18.

3.3          Use

(a)       By accessing and using the Platform as a Supplier, you represent and warrant that:

(i)         you are at least 18 years of age;

(ii)        you have the legal right, authority and capacity to agree to and abide by the Terms of the Agreement;

(iii)      if you are a builder or developer, that you are a registered or licensed builder with the relevant State or Territory authority;

(iv)      if you are a land supplier, that you have the relevant rights and consents to supply or sell the land that you post on the Platform;

(v)       you will use the Platform in a manner consistent with any and all applicable laws and regulations; and

(vi)      if you are using the Platform on behalf of a company, that company is taken to have accepted the Terms and you are taken to have been duly authorised to bind the company.

(b)       By accessing and using the Platform as a Supplier, you agree and acknowledge that:

(i)         we do not make any guarantees as to a set, regular, continuous or minimum amount of Consumers that will view or enquire about your Supplier Posts and your Supplier Services;

(ii)        you are under no obligation to accept enquiries from Consumers on your Supplier Posts or other User Content and it is at your discretion to accept the Consumer’s enquiry;

(iii)      we are not a party to, or a participant in, any contractual relationship between you and any other User;

(iv)      you are responsible for complying with any relevant legislation and regulations that may become applicable as a result of any contractual relationship you enter into with another User;

(v)       we have no control over of the conduct of our Users or your interactions with other Users (whether in person or online);

(vi)      you should always verify a Consumer’s details and exercise due diligence and care when dealing with Consumers;

(vii)     we do not guarantee the existence, availability, suitability, legality or safety of the Platform;

(viii)    your access to and use of the Platform is non-transferable;

(ix)      we may deny anyone access to an Account or the Platform any time where you have breached any provision of this Agreement; and

(x)       we are not obliged to confirm the identity of the Users, including our Suppliers, except to the extent of any applicable verification procedures outlined within this Agreement.

(c)       By registering for an Account, you agree that we may send you text (SMS) messages, push notifications and emails as part of the normal business operation of your use of the Platform. You may opt-out of receiving these communications from us by contacting us and you acknowledge that opting out of receiving these communications may impact your use of our Platform.

(a)       Your subscription tier may include limits on the number of Supplier Posts you can post for your subscription period (Usage Limit) and your ability to post further Supplier Posts on the Platform is subject to any Usage Limits.

(b)       If you reach your Usage Limit, you will not be able to post further Supplier Posts during the subscription period (Additional Supplier Posts) unless you add Additional Supplier Posts either:

(i)         by contacting us to add Additional Supplier Posts to your Account; or

(ii)        through the function in your Account, and

(iii)      pay any fees for the Additional Supplier Posts in accordance with clause 8.

(c)       If you do not reach your Usage Limit during the subscription period, any unused Supplier Posts will not be rolled over to the next subscription period.

We do not engage you as an agent or employee of Koti and there is no contractual or implied relationship of employee and employer, agency, or independent contractor, between us and Suppliers. It is the express intention between us and you that any such relationships are denied.

6.1          Permitted Use

(a)       You may view the Platform using a web browser or mobile device and copy or print hard copies of parts of the Platform solely for the purposes provided for in these Terms.

(b)       Any other use, including the modification, distribution, transmission, republication, display or performance of the content on the Platform, except as provided for under these Terms, is strictly prohibited.

6.2          Your Obligations

You represent and warrant that you will:

(a)       only use the Platform in accordance with these Terms and for lawful purposes; and

(b)       comply with applicable laws and regulations.

6.3          Limitations

In accessing the Platform, you represent and warrant that you will not:

(a)       modify or copy the layout of the Platform or any computer software and code contained in the Platform;

(b)       commit any act or engage in any practice that:

(i)         is harmful to our systems, reputation or goodwill; or

(ii)        interferes with or disrupts the integrity of the Platform, including but not limited to, by hacking, transmitting any viruses, spyware, malware or any other unauthorised malicious code of a destructive or disruptive nature;

(c)       create accounts with us through unauthorised means, including by using an automated device, script, bot or other similar means;

(d)       restrict, or attempt to restrict, another User from using or enjoying the Platform;

(e)       interfere with the privacy of another person or harvest or otherwise collect information about others, including Registration Information, without their consent;

(f)        infringe any intellectual property rights or any other contractual or proprietary rights of another person;

(g)       bypass any measures used to prevent or restrict access to our Platform;

(h)       do any act, engage in any practice or omit to do any act or engage in any practice that:

(i)         is or could reasonably be considered obscene, illegal, offensive, inappropriate, defamatory, indecent, threatening or objectionable in any way;

(ii)        would cause us to breach or to be taken to breach a law;

(iii)      would bring us into disrepute; or

(iv)      interferes with the integrity or supply of the Platform to all Users; or

(i)         encourage or facilitate violations of these Terms;

(j)         distribute or send communications that contain spam, chain letters, or pyramid schemes; and

(k)       harass, intimidate, act violently or inappropriately towards or be discriminatory against another User.

(a)       Subject to any Usage Limits, you may post Supplier Posts on the Platform. You must include in your Supplier Post the information and details required by the Platform, including but not limited to:

(i)         if you are a land supplier or developer, the lot details, rules and any calculations for the lot, disclosure plan or lot plan; or

(ii)        if you are a builder, the details of the designs for the building or structure; and

(iii)      the estimated price for your Supplier Services offered.

(b)       Consumers may search, view and enquire about your Supplier Posts through the Platform.

(c)       If a Consumer enquires about your Supplier Post, the Platform will automatically provide you with the Consumer’s contact details and their enquiry. We are not responsible for and accept no liability in relation to any subsequent communication, conduct, acts or omissions by Consumers.

8.1          Subscription Fees

(a)       We may charge monthly fees to Suppliers in consideration for us making the Platform available (Subscription Fees).

(b)       We will advise you of any applicable Subscription Fees (including any applicable GST) when you are creating your Account with us. Our Subscription Fee rates can be found at www.mykoti.com.au/partner-packages.

(c)       Subscription Fees are payable in advance and are non-refundable, except as expressly provided in these Terms.

(d)       Subscription Fees and all other fees, charges and prices are stated in Australian dollars and are exclusive of applicable taxes, unless otherwise stated. We will be entitled to add on GST for any supply in Australia.

(e)       We reserve the right to change the Subscription Fees at any time and we will provide Suppliers with reasonable notice of any fee changes before they become effective.

(f)        You are responsible for paying all fees and taxes in respect of your Account and we reserve the right to charge you such applicable taxes.

8.2          Free trial

(a)       We may offer a free 6-month trial to Suppliers from time to time where your Subscription Fees for the first 6 months of your subscription period are waived if your subscription period is over a year in length. If you are eligible for the free trial, we will notify you during the Account Registration process.

(b)       For the avoidance of doubt, the free trial applies to your Subscription Fees only and does not apply to any other fees under this Agreement.

8.3          Payment method

(a)       Subscription Fees must be paid in accordance with your selected subscription plan with a valid credit card, electronic funds transfer or through payment processing services provided by Stripe and access to the Platform is conditional on timely payment of all fees by you.

(b)       Any other fees must be paid through the functionality of the Platform or if we send you an invoice.

(c)       All credit card payments are subject to validation checks and authorisations by the card issuer. If the issuer of your payment card refuses to or does not for any reason authorise payment of the Subscription Fees the payment will not be processed.

(d)       If you process any payment through Stripe, you are subject to and agree to the relevant Stripe Connect or Stripe Billing terms and conditions, as applicable, which includes the Stripe Terms of Service. Please review these terms and conditions before making payment of the Subscription Fees through Stripe. We reserve the right to change the payment processing service provider from time to time.

(e)       If the applicable Subscription Fee is not paid to us or automatically debited for any reason by the due date, we may, at our discretion:

(i)         charge interest on the outstanding amount at a rate of 10% per annum, accruing daily;

(ii)        cancel your Account; and/or

(iii)      temporarily suspend your access to all or some of the features of the Platform until such time as payment of the Subscription Fee is received by us in full.

8.4          Refund of fees

(a)       If you cancel your Account under clause 18 or if we cancel your Account as a result of you breaching these Terms, then any Subscription Fees already paid will not be refunded and any outstanding Subscription Fees become immediately due and payable upon cancellation.

(b)       If we terminate your Account or access to or operation of the Platform for any other reason and you have paid applicable Subscription Fees in respect of the period after cancellation, we will refund any Subscription Fees you have paid on a pro rata basis by cheque or to a bank account notified by you for that purpose within 28 days of cancellation.

8.5          Fees between Users

Payment arrangements between Consumers and you are to be arranged solely between the Consumer and you. We do not accept any liability or responsibility for the payment of fees by Consumers to you in exchange for your Supplier Services or otherwise.

(a)       The parties agree that the Subscription Fees are to be considered inclusive of GST (as per the meaning within A New Tax System (Goods and Services Tax) Act 1999 (Cth)). GST becomes payable on any party making a supply under this Agreement.

(b)       As at the date of this Agreement, Koti is registered for GST, and agrees to promptly inform its Users of any changes to that status.

(a)       In these Terms, Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.

(b)       We own or are the licensee of all rights, title and interest (including Intellectual Property Rights) in the Platform or to the material (including all text information and content, graphics, logos, type forms and software) made available to you on the Platform (collectively, Platform Content). Your use of and access to the Platform does not grant or transfer any rights, title or interest to you in relation to the Platform Content.

(c)       You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, reverse engineer, create derivative works from, transfer, or sell any Platform Content or any other material in whatever form contained within the Platform unless expressly stated otherwise in these Terms.

(d)       To the extent that the Platform uses any open source or third-party code that may be incorporated into the Platform, such access to the open source code is provided subject to the terms imposed by the licensor of that open source code. You acknowledge and agree that any open source code is made available "as is", without any warranty from us.

(e)       We may request the use of any User Content for our business or commercial purposes (including marketing and promotional). If you consent to the request, you grant us a royalty free, worldwide, perpetual, non-exclusive  licence to use, reproduce, copy, store, share, and exploit any such User Content for our business or commercial purposes.

11.1       General

(a)       You are solely responsible for the User Content you post, publish or otherwise transmit through the Platform, including but not limited to your Supplier Posts, and that you obtain though accessing or using the Platform.

(b)       We reserve the right, but are not obliged, to monitor, review, verify, edit, modify or delete User Content and we do not control the accuracy of User Content.

(c)       We do not claim ownership of any User Content. You grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide, assignable and transferable licence to use, reproduce, modify, copy, store and share the User Content, for the purpose of your use of the Platform.

(d)       You consent to any act or omission which would otherwise constitute an infringement of your moral rights. If a third party has moral rights in your User Content, you must ensure the third-party consents in the same manner.

(e)       The views expressed in any User Content are the views of Users and not those of us unless specified otherwise. We are not responsible for and disclaim all liability in respect of any User Content. We encourage you to report problems, offensive content or comments and malicious use of the Platform to us.

11.2       Security of content

(a)       We will take all reasonable steps to implement, maintain and enforce security procedures and safeguards to protect the security, confidentiality and integrity of the User Content from unauthorised access or use by a third party or misuse, damage or destruction by any person.

(b)       However, we do not guarantee and cannot ensure the security of User Content and we expressly exclude liability for any such loss, however caused.

11.3       Prohibited content

You must not create or generate any User Content:

(a)       unless you hold all necessary rights, licences and consents to do so;

(b)       that would cause you or us to breach any law, regulation, rule, code or other legal obligation;

(c)       that we consider inappropriate, defamatory, offensive, abusive, indecent, illegal or disparaging;

(d)       that would bring us into disrepute; or

(e)       that infringes the rights, including intellectual property rights, of any third party.

The Platform may contain links and other pointers to websites or applications owned and operated by third parties. We do not control these linked websites and are not responsible for the contents of any linked website. Your access to any such website is entirely at your own risk. You should contact the relevant third-party directly to enquire as to the accuracy and completeness of that information prior to entering a transaction in relation to the third-party products and services.

To the fullest extent permitted by law, you agree and acknowledge that:

(a)       the Platform is provided “as is” and “as available” and the entire risk arising out of your use of the Platform remains solely with you;

(b)       we do not control, endorse and are not responsible for any User Content;

(c)       we make no warranty or representation that any User Content is accurate and it is the responsibility of Users to review and verify the accuracy of all information input into the Platform;

(d)       we retain complete control over the Platform and may alter, amend or cease the operation of the Platform in our sole discretion;

(e)       we make no warranty or representation that any result or objective can or will be achieved or attained by accessing the Platform;

(f)        we make no warranty or representation that the Platform will be continuous, uninterrupted, accurate, fault-free, virus-free, secure or accessible at all times;

(g)       we may remove any content, material and/or information, including any User Content, without giving any explanation or justification for removing the material and/or information;

(h)       you are responsible for considering the appropriateness of the Platform, its services and any Platform Content, for your intended application and use and we give no warranty, guarantee or representation that the Platform, its services or the Platform Content is suitable for or meets your requirements; and

(i)         we reserve the right, but are not obliged, to monitor or become involved in any dispute between Suppliers.

You must:

(a)       take out and maintain adequate public liability insurance with a reputable insurance provider throughout the subscription period and any subsequent subscription periods; and

(b)       ensure that you have the relevant licenses, authorisations and qualifications required by any applicable law to deliver your Supplier Services in your Supplier Posts.

(a)       To the fullest extent permitted by law, we are not liable to you or anyone else for any loss or damage you may suffer or incur in connection with:

(i)         your access to and use of the Platform and Platform Content;

(ii)        your inability to access or use the Platform and Platform Content;

(iii)      your provision of your Supplier Posts or your provision or supply or attempted provision or supply of your Supplier Services to Consumers you interacted with on the Platform;

(iv)      your reliance on information provided by another User through the Platform and external to the Platform;

(v)       any User Content;

(vi)      any interactions between Suppliers and Consumers or conduct of other Users;

(vii)     any User breaching or failing to comply with any applicable laws;

(viii)    any personal injury or death caused or contributed to by a User; and

(ix)      unauthorised creation, access or use of your personal information, Account or your User Content,

even if we have been advised of the possibility of such loss.

(b)       To the fullest extent permitted by law, we exclude:

(i)         liability for special, indirect or consequential damages, including damages for loss of data, reputation, goodwill and opportunity, loss of or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit; and

(ii)        all representations, warranties or terms (whether express or implied) other than those set out in these Terms.

(c)       Pursuant to s64A of Schedule 2 of the Australian Consumer Law, this clause 15(c) applies in respect of services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Our liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by s51 to s53 of the Australian Consumer Law) is limited at our option to:

(i)         the re-supply of the services or products; or

(ii)        the payment of the direct cost of having the services or products resupplied.

(a)       You agree to indemnify us for all losses, damages, liabilities, claims and expenses (including reasonable legal costs) incurred by us arising out of or in connection with your use of the Platform and Platform Content, Supplier Posts, Supplier Services, any User Content or your breach of the Terms or any rights of third parties.

(b)       We reserve the right to assume exclusive control of any matter for which you are required to indemnify us, and you agree to provide assistance at your expense for the purposes of defending and managing all such claims as is reasonably requested by us.

17.1       Disputes between Users

We will not monitor or become involved in any way in disputes between Users.

17.2       Disputes between Suppliers and Us

(a)       The parties must use reasonable endeavours to resolve any dispute through negotiation.

(b)       If the dispute cannot be negotiated between the parties within 30 days of the dispute arising, either party may commence proceedings.

18.1       Termination

(a)       Each party has a right to terminate this Agreement at any time.

(b)       Suppliers may terminate this Agreement by providing notice to us by email or by using the close account facility in settings on the Platform. Termination will be effective upon our receipt of the notice, following which, we will disable the Supplier’s Account at the end of the subscr