Rainmaker – Terms and Conditions (“Terms”)
Last Updated: 1 March 2019
Thanks for becoming a user of the Rainmaker Platform. The Rainmaker Platform and the business associated with the Platform is owned and operated by Rent360 Pty Ltd.
As a user of the Platform, or by accessing, using, or signing up for a Rainmaker account (or signing these Terms), you (“client”, “you”, “your” and “user”) are agreeing to follow and be bound by these Terms when using the Platform and Services (defined below) provided by Rainmaker.
PLEASE CAREFULLY REVIEW THESE TERMS BEFORE YOU START TO USE THE PLATFORM. IF YOU DO NOT ACCEPT ALL OR ANY PART OF THEM, PLEASE DO NOT ACCESS OR USE THE RAINMAKER PLATFORM, OUR WEBSITE OR OUR SERVICES.
By using the Platform and/or signing these Terms, you will be deemed to have understood and accepted these Terms, which form a binding legal agreement between you and us, Rent360 Pty Ltd trading as Rainmaker (ACN 611 483 857) (“Rainmaker”, “we”, “our” and “us”). If you are a representative of a body corporate (e.g. a corporation), then it is a condition of you continuing to use our Platform that the you warrant that you have authority to accept these Terms on behalf of that body corporate, and these Terms specify the terms of a legally binding agreement between that body corporate and us. By using the Platform, you confirm that you are also 18 years of age or over, or otherwise have legal parental or guardian consent.
Any services provided by Rainmaker including any updates and enhancements, are subject to these Terms. Please note that Rainmaker reserves the right to make changes to these Terms from time to time. Any such changes will be posted via the www.rainmakerpro.com.au or https://rainmaker.rent360.com websites (“Sites”). It is your responsibility to review the Terms as published on the Sites at regular intervals.
1 The Services
1.2 The Rainmaker Platform supports a business’s efforts to acquire and monitor reviews from landlords, tenants, vendors and buyers (“Customers”) across a panel of independent review sites and then helps facilitates the responses to and display of these reviews across various digital assets (the “Services”)
1.3 The Rainmaker Platform is accessed through the website: https://rainmaker.rent360.com.au.
1.4 Rainmaker will provide you with training and support in regard to the Platform (if required).
2 Eligibility to Register and Authorised Users
2.1 As a business user, to get access to, and make full use of the Platform, you must register as a user on the Platform after receiving an invite to join the Platform.
2.2 While registering, you must choose a password to use along with your email address when you log on to the Platform. The password is unique to your account and must not be shared or in any other way made available to others.
2.4 You will be solely responsible for authorising and creating additional user (agent) accounts and other access credentials for authorised users. You are solely responsible for determining your authorised users and/or restricting and/or terminating the rights of such users during the Term, as you deem appropriate.
2.5 You will be responsible and liable for all your authorised users’ use and access and their compliance with these Terms.
2.6 You agree to exercise reasonable care to maintain the security of your logins and other account information.
2.7 The decision to invite a user and/or accept a new user registration is in our discretion and, at our sole discretion, we may terminate the accounts or access rights of users who may have provided inaccurate or incomplete information during registration.
2.8 You may not register to use the Platform if you are already registered or if you were previously a registered user and we terminated your account as a result of you being in breach of these Terms.
2.9 You must immediately notify us of any unauthorised use of your password or account or any other breach of security. We will not be liable for any loss or damage whatsoever resulting from the disclosure of your account details and/or password contrary to these Terms.
3 Client Information
3.1 If you are accepted by Rainmaker to be a user, you will create a user account and public profile on the Platform which may display information as to your identity, location, areas serviced, contact details, licence information, professional biography and languages spoken. Rainmaker reserves the right to verify your information using third parties including real estate license checks, police checks, personal credit risk checks, bankruptcy and court record checks, ASIC company directorship checks and verification of your billing details.
3.2 You warrant and represent that the information you provide us is and shall remain complete, accurate, true and correct and that you will update information held by Rainmaker as soon as possible after any changes.
3.3 You hereby grant Rainmaker a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of your data solely to the extent necessary to provide the Platform and related Services. You also hereby expressly grant Rainmaker a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish your business name and related trademarks in connection with the operation and promotion of the Platform. Rainmaker does not claim any ownership rights in any such user content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such user content.
3.4 You agree that Rainmaker will have the right to generate aggregate/anonymous data. Notwithstanding anything to the contrary herein, the parties agree that aggregate/anonymous data is Rainmaker property, which Rainmaker may use for any business purposes during or after the Term of this agreement (including without limitation to develop and improve Rainmaker’s Platform and to create and distribute reports and other materials). Rainmaker will not distribute aggregate/anonymous data in a manner that personally identifies you or your Customers, or that would otherwise violate applicable privacy laws.
4 Compliance with Third-Party Review Site Policies
4.1 The Rainmaker Platform provides a convenient location for businesses to manage their online reputation. In doing so, it provides links to and descriptions of numerous third-party review platforms such as Google, Facebook, Productreview, RateMyAgent and realestate.com.au. Rainmaker is not affiliated with or endorsed by any of these third parties, nor is it in a joint venture relationship or partnership with any of these third parties. Such third-parties are not associated in any way with the Rainmaker Platform. To the extent Rainmaker uses any tradenames or trademarks associated with such third-parties, it does so solely to identify those companies and their services. Rainmaker makes no claim as to ownership of such third-party trademarks.
4.2 You agree to adhere to the Terms of Service of all major third-party review sites. This includes but not limited to Google, Facebook, Productreview, RateMyAgent, realestate.com.au.
4.3 You will fully comply with sites that prohibit review solicitation and will not misuse the Platform to bypass review sites’ policies.
4.4 If you attempt to circumvent the Terms of Service of third-party review sites, we will notify you and allow you 30 days to take corrective action. Should you fail to comply within the 30-day notice period, your account may be suspended.
5 Rainmaker Obligations
5.1 Rainmaker will use all reasonable endeavours to ensure that the Rainmaker Platform is fully functional and operational at all times except for periods of planned or emergency maintenance.
5.2 Rainmaker grants you a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Term to access and use the Platform.
5.3 Where Rainmaker is engaged by a client to undertake the import of the user’s Customer database, Rainmaker will employ controls and systems to protect the integrity of that database. This includes controls that prevent unauthorised access, copying or other proliferation of such database.
5.4 Rainmaker will use all of its reasonable endeavours that your Customer database will not be used or copied by any other party, including by Rainmaker itself.
6 Client (User) Obligations
6.1 As the owner of any Customer database that you choose to upload to the Rainmaker Platform, you warrant that all members of the Customer database have elected to receive your emails and SMS in accordance with the relevant privacy laws applicable in your jurisdiction (“Privacy Regulations”).
6.2 You warrant that you will not send spam emails or SMS under any circumstances.
6.3 You warrant that you will not use purchased, rented or third-party lists of email addresses or mobile phone numbers.
6.4 You warrant that all emails and SMS sent by you via the Rainmaker Platform comply with the specific requirements of the applicable Privacy Regulations.
6.6 You understand and accept that the content of emails and SMS sent via the Rainmaker Platform is entirely your responsibility. You accept that Rainmaker is purely a delivery mechanism and has no involvement in the content of the emails and SMS, the performance of the emails and SMS, nor the delivery rate or engagement rate of any particular email or text campaign.
6.7 Whilst Rainmaker constantly monitors it’s deliver-through rates and any overall changes in the internet service provider environment that may affect delivery of emails and SMS, you accept that the information contained in emails and SMS may affect the delivery performance of your emails and SMS. You acknowledge that any such information is entirely your responsibility.
6.8 You warrant that the information contained in your emails and SMS are of a normal, commercial and/or information manner, and are broadly in line with what would be deemed socially acceptable expectations and that you may not use the Platform in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect. Specifically, you warrant that your emails and SMS do not carry content that could be deemed sexually extreme or offensive, content that could be deemed as racist or bigotry, content that could be deemed as racially and/or religiously inflammatory, and/or that may carry content that could threaten the security of individuals, organisations and/or nations.
6.9 You warrant that you have content preparation controls, procedures and testing in place that prevent the transmission of computer viruses, Trojan horses or any other malicious or harmful software. You specifically indemnify Rainmaker from any and all claims and/or costs that may be associated with the accidental or deliberate transmission of such viruses.
6.10 You agree that the transmission of any content referred to in clauses 6.8 and 6.9 (whether deliberate or otherwise) will entitle Rainmaker to immediately suspend or terminate the agreement formed under these Terms and any rights you may have to access and utilise the Rainmaker Platform. You also agree that Rainmaker has the right to refer any such transgressing content to any relevant authority as it deems fit and that you have no legal or monetary recourse against Rainmaker under such circumstances.
6.11 As such, you indemnify Rainmaker, without limitation, from and against any claim, action, loss or damage (including associated costs) arising from any third-party action that may result from the transmission of any such content. You agree that should such transmission(s) impact on the overall ability of Rainmaker to perform its business, then Rainmaker has the right to recover from you the full amount of its commercial and/or opportunity loss and/or damage.
7 Fees and Payment
7.1 You agree to pay Rainmaker the agreed fees for use of the Platform and associated Services (“Fees”). Platform Fees will be posted on the Sites and may change from time to time.
7.2 Invoices for the Fees described in this clause 7 will be issued on the first calendar day of your monthly billing cycle. All invoices will be sent to you, or to your billing contact, whose details are provided by you.
7.3 Rainmaker may require you to provide us with an authorisation to direct debit the Fee from your credit card or nominated bank account (“Billing Details”). Once authorisation is provided the Fees will be automatically debited by Rainmaker.
7.4 All Fees specified in any invoice issued by Rainmaker to you will be taken on the due date using the Billing Details provided by you.
7.5 If your payment is declined by your bank or card issuer, we will notify you immediately and you will have 5 days from the due date to either (a) update your billing details; or (b) ensure sufficient funds are available in your account or credit/debit card or your access to the Platform may be suspended.
7.6 You agree to reimburse Rainmaker for any costs, expenses, or fees expended by Rainmaker in connection with any collection efforts against you, including reasonable internal costs and external legal or collection fees.
7.8 If you have commenced using the Rainmaker Platform as the result of a 30 day (or other period) free trial, billing will commence the next day after the completion of the trial period unless you have notified us prior to the completion of the trial period.
7.9 Upon at least 45 days’ prior written notice from Rainmaker to client, Fees for usage of the Platform and related Services may increase, effective on the start date of the specified monthly billing period.
8 Capacity Constraints
8.1 Any single user licence is restricted to a maximum database size of 5,000 contacts and a maximum monthly send capacity of 10,000 emails and/or 5000 SMS.
9 Term and Termination
9.1 The Term of this agreement begins when you register on the Rainmaker Platform and continues for 30 days (the “Term”).
9.2 Unless otherwise stated, you acknowledge and agree that each Term will automatically renew for successive Terms of the same duration (30 days) unless you notify Rainmaker, in writing and at least 14 days prior to the expiry of the then current Term, that you do not wish to renew your use of the Platform, or unless your use of the Platform is otherwise terminated in accordance with these Terms.
9.3 Termination will not affect your ongoing obligation to pay any invoice relating to a period prior to the expiry of the termination notice period.
9.4 Upon termination of an account, Rainmaker will delete all client records, feedback, survey responses, reviews and historical data associated with the terminating client’s account. No historical or transactional data records will be transferred to the client. Should a client subsequently wish to use the Rainmaker Platform again, set-up fees may apply. These set-up fees vary from time-to-time but are currently set at an amount equal to 3 month’s Platform Fees.
9.5 If Fees remain unpaid 14 days from the due date specified on the invoice, Rainmaker has the right to suspend your access to the Platform. Once suspension has been notified and implemented, Rainmaker has the unrestricted right to immediately terminate the agreement formed under these Terms (and any Master Services Agreement signed by Rainmaker and you) without further notice or recourse from either party other than Rainmaker’s legal entitlement to pursue any outstanding fees that have been invoiced or relate to the period prior to termination.
9.6 Should either party to the agreement formed under these Terms be placed into receivership / administration / liquidation and/or have a Court Notice applied to it seeking a winding-up order, then the other party has the right to terminate the provision of Services immediately and without recourse or notice.
10 Third Party Access
10.1 You are specifically prohibited from allowing any third-party, database access to the Rainmaker Platform and/or re-selling access to the Rainmaker Platform to any third-party.
11.1 You agree, without limitation, to defend, indemnify and hold harmless us, our group companies, shareholders, affiliates and licensors and each of our and their respective employees, officers, directors, agents, licensors, suppliers, other partners and representatives from and against any claims, damages, losses (including direct, indirect and consequential loss or damage), liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any of the following (including but not limited to any third-party claim concerning the following):
(a) your or any individual user or email or SMS recipient’s use of the Platform or Service provided by the Platform (including any activities under your Rainmaker account and use by your employees, staff and other personnel engaged by or representing you (“Your Personnel”);
(b) a breach of the agreement formed under these Terms or violation of applicable law by you, any individual user or Your Personnel;
(c) your content or the combination of your content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your content or by the use, development, design, production, advertising or marketing of your content; or
(d) a dispute between you (or Your Personnel) and any individual user of the Platform or email or text recipient.
11.2 If we or our affiliates are obligated to respond to a compulsory legal order or process described above (“Third Party Action”), you will also reimburse us for all reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the Third-Party Action at our then-current hourly rates.
12.1 THE RAINMAKER PLATFORM AND ASSOCIATED SERVICES PROVIDED BY RAINMAKER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
12.2 SAVE AS SET OUT IN THESE TERMS, WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE RAINMAKER PLATFORM AND/OR ANY ASSOCIATED SERVICES OR THIRD PARTY CONTENT, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR THAT THE RAINMAKER PLATFORM AND/OR ANY ASSOCIATED SERVICE OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
12.3 EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS:
(A) MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND IN RESPECT OF THE PLATFORM OR ANY CONTENT AVAILABLE THROUGH THE PLATFORM AND ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS EXPRESS OR IMPLIED ARE HEREBY EXCLUDED TO THE FULL EXTENT PERMITTED BY LAW; AND
(B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
12.4 ALTHOUGH WE MAKE REASONABLE EFFORTS TO UPDATE THE INFORMATION ON THE PLATFORM, WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, THAT THE CONTENT ON THE PLATFORM IS ACCURATE, COMPLETE OR UP-TO-DATE.
13 Limitations of Liability
13.1 TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR FOR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE RAINMAKER PLATFORM, ANY WEB SITES LINKED TO THE RAINMAKER PLATFORM, OR THE SOFTWARE, MATERIALS OR SERVICES CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF STATUTORY DUTY OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, COST OF REPAIR OR CORRECTION, OR LOSS OR DAMAGES ARISING IN CONNECTION WITH:
13.2.1 YOUR USE OF, OR YOUR INABILITY TO USE, THE PLATFORM OR ANY SERVICES ASSOCIATED WITH THE PLATFORM, INCLUDING AS A RESULT OF ANY:
(A) TERMINATION OR SUSPENSION OF THE AGREEMENT FORMED UNDER THESE TERMS OR YOUR USE OF OR ACCESS TO THE SERVICES;
(B) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES; OR,
(C) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON THAT IS NOT AS A DIRECT RESULT OF OUR BREACH OF THESE TERMS OR NEGLIGENCE, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS;
13.2.2 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
13.2.3 ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THE AGREEMENT FORMED UNDER THESE TERMS OR YOUR USE OF OR ACCESS TO THE PLATFORM AND/OR THE SERVICES;
13.2.4 ANY UNAUTHORISED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA;
13.2.5 USE OF OR RELIANCE ON ANY CONTENT DISPLAYED ON OR PRODUCED VIA THE PLATFORM; OR
13.3 THE ACTS OR OMISSIONS OF ANY OTHER USER OF THE PLATFORM.
13.4 IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THE AGREEMENT FORMED UNDER THESE TERMS WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
14 Intellectual Property
14.1 You acknowledge and agree that all intellectual property rights vested in or associated with the Rainmaker Platform and all material published on the Platform including but not limited to text, graphics, photos, logos, button icons, images, trademarks, audio and audio visual clips, databases, data compilations, data and software (but excluding any content uploaded by users of the Platform) (together the “Rainmaker Content”) are (as between you and us) owned, controlled or reserved by Rainmaker or its licensees.
14.2 You may not copy, adapt, display, communicate to the public or otherwise use any Rainmaker Content except as enabled and permitted by the Platform and/or these Terms from time to time.
14.3 Subject to these Terms, Rainmaker authorises you to view, operate and use the information and materials obtained from the Rainmaker Platform or sent to you by Rainmaker via any electronic or physical means, on the basis that all of our intellectual property rights vested in such materials are remain strictly owned and reserved by us (the “Materials”).
14.4 Unless otherwise specified in these Terms, the Rainmaker Platform may not be modified, copied, distributed, transmitted, displayed, performed, reproduced, published, licensed, used to create derivative works from, transferred, or otherwise used in a manner inconsistent with the purpose for which the Rainmaker Platform and/or any associated Services are provided.
15 Links to Other Platforms or the Platform
15.1 The Platform may offer links to other websites from which third-party services can be obtained and which we reasonably believe to be reputable sources of such services. However, you acknowledge that these other websites are independent from us and we make no representations or warranties as to the legitimacy, accuracy or quality of such third-party services, and we do not accept any responsibility for their content, safety, practices or privacy policies.
15.2 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
15.3 You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
15.4 You must not establish a link to the Platform in any website or application that is not owned by you (save where expressly authorised under these Terms).
15.5 The Platform must not be framed on any other website or application, nor may you create a link to any part of the Platform other than the home page (save where expressly authorised under these Terms).
15.6 The website in which you are linking must comply in all respects with the content standards set out in these Terms.
15.7 We reserve the right to withdraw linking permission without notice.
17 Governing Law
17.1 These Terms and the agreement formed under them is governed by the laws of New South Wales, Australia.
17.2 Subject to clause 17.3 below, you consent to the courts of New South Wales, Australia having exclusive jurisdiction over any disputes arising in respect of or in relation to these Terms and your use of the Platform.
17.3 Nothing contained above shall (or shall be construed so as to) limit our right to bring a suit, action or proceeding (“Proceeding”) against you in the courts of any country in which you have assets or in any other court of competent jurisdiction nor shall Proceedings we institute in any one or more jurisdictions preclude us from instituting Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.
18.1 If any provision or part of a provision of these Terms is held to be illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, such provision will be deemed severed from these Terms and the remainder of these Terms will remain in full force and effect.
18.2 These Terms, and the documents referred to in them, constitute the entire agreement between you and us in relation to the subject matter of these Terms and supersede and extinguish any prior agreement in respect of the same.
18.3 You are not permitted to assign, transmit or transfer your access rights to the Rainmaker Platform under these Terms to any other party whatsoever without the written consent of Rainmaker.
18.4 Rainmaker may, at any time and in its sole discretion, assign, subcontract, encumber or otherwise transfer any of its rights, interests and/or obligations under these Terms without the other party’s consent, to: Any third-party in connection with any financing, refinancing, securitisation or other business transaction involving the assigning party or any of the Rainmaker’s related companies.
18.5 The relationship between you and us is and will be that of independent contractors and nothing in these terms shall create an employment, trustee, partnership or agency relationship and no party will make any representation as such.
18.6 Termination of these Terms will not end those provisions that are capable of surviving the ending of any agreement formed under or by these Terms.
18.7 The failure of Rainmaker to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such a right or provision.
If you have any questions about these Terms, please contact Rainmaker at firstname.lastname@example.org or call 1300 800 360.