This Agreement is made and entered into on the date stated on the front cover of this Agreement by the parties below:
PROPERTY PORTAL LIMITED (“Licensor”), a company incorporated in New Zealand under the Companies Act 1993.
You, the paid user.
A. The Licensor is the provider of real estate property information.
B. The Licensor agrees to licence the information provided to the Licensee for personal use and the Licensee agrees to such licence on the terms set out in this Agreement.
IT IS AGREED THAT:
1. DEFINED TERMS AND INTERPRETATION
1.1. Defined Terms
The following definitions apply unless the context requires otherwise.
Means this agreement and Schedule A.
Means: for the purpose of sending or receiving a notice, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in the city where the notice is received; and for all other purposes, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in Auckland.
Means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Licensee before, on or after the date of this Agreement, relating to the valuation products, product information services or the business, technology or other affairs of the Licensor, any data (including Product Data), valuation and market share analysis, valuation models and tools, indices, programs or algorithms.
Personal Use Needs
Means solely for the personal use needs of the Licensee and not to be provided to any other third party unless consented to in writing by the Licensor (in its discretion). For clarity, it is agreed that the following are not for Personal Use Needs:
any direct or indirect supply of raw information derivatives by the Licensee to third parties for on-supply, re-use or resale; and any marketing purposes (whether unsolicited or otherwise).
Has the meaning given in clause 11.
Means the payment has been transfered or other way to pay provided by the licensor.
Means any data or results, including any property information, ownership information, sales information, photographs, valuation or market share analysis, index results or alerts, contained within or provided via the Website.
Has the meaning given in clause 3.1.
Refers to www.relab.co.nz where the Product Data will be made available.
In this Agreement, unless the context otherwise requires:
A. recitals, headings and underlining are for convenience only and do not affect the interpretation of this document;
B. words in the singular include the plural and the other way around;
C. words of one gender include any gender;
D. an expression importing a natural person includes any corporation or other body corporate, partnership, association, public authority, two or more persons having a joint or common interest, or any other legal or commercial entity or undertaking;
E. a reference to a party to this Agreement includes that party’s executors, administrators, successors, permitted assigns and substitutes;
F. a promise or agreement by two or more persons binds each person
G. individually and all of them jointly;
H. a reference to a clause, party, schedule, annexure or exhibit is a reference to a clause and schedule of, and a party, annexure and exhibit to, this Agreement; and a reference to this Agreement includes any schedule, annexure or exhibit;
I. reference to a right includes a remedy, power, authority, discretion or benefit;
J. a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it and any rules, regulations and guidelines issued under that legislation or subsidiary legislation;
K. a reference to a document, including this Agreement, includes any amendment or supplement to, or replacement or novation of, that document or this Agreement, as the case may be;
L. a reference to ‘$’ means the lawful currency of New Zealand;
M. ‘writing’, or cognate expressions, includes any communication effected by facsimile transmission;
N. if any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day, which is not a business day, then that period is to be deemed only to expire on the next business day;
O. except to the extent that the context requires otherwise, a reference to a ‘party’ means either the Assignor or the Assignee and ‘parties’ means both the Assignor and the Assignee;
P. a reference to this ‘agreement’ is a reference to this Agreement as from time to time amended, supplemented or restated;
Q. if a word or phrase is defined, another grammatical form of that word or phrase has a corresponding meaning;
R. all money sums mentioned in this Agreement are calculated excluding Goods and Services Tax (“GST”) where GST may be imposed on the services or goods provided;
S. this Agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or any language of this agreement, this agreement shall be deemed to supersede all other versions of this agreement unless otherwise stated and agreed in writing between all the parties involved in this agreement; and
T. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it.
Subject to the terms of this Agreement, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable, non-sublicensable limited licence during the Term to access the Product Data, solely for support of the Licensee’s Internal Business Needs. It is agreed by the Parties that the onsupply of Product Data for direct commercial gain and the bundling of Product Data with other products or services and provision of this to any other third party are not actions solely in support of the Licensee’s Internal Business Needs.
2.2. Scope of services
The Licensor agrees to licence its covers property informations in the Auckland region. For the avoidance of doubt, properties out of the Auckland region and property owner’s details are not in the scope of services.
The Licensor shall provide the services via the Website.
2.4. Modification of Website, service or materials
The Licensee understands, acknowledges and accepts that:
2.4.1. The Licensor reserves the right to change or refine the features and function of the Website and Product Data at any time.
2.4.2. Subject to clause 6, the Licensor will maintain the Website through which the Product Data is accessed. The Licensor reserves the right to perform network, hardware or service maintenance services or upgrades, change, modify, suspend or discontinue any or all parts of the Website or Product Data at any time. This may require the Website or Product Data to be non-accessible for a period of time. The Licensor will endeavour to perform such services and upgrades during typically low usage periods but reserves the right to restrict the Licensee’s access to parts or all of the Product Data without notice or liability.
2.4.3. Some of the materials in the Website and the Product Data are sourced from third party data providers. The Licensor may at any time be required to amend or delete any material (or any part of the material) on the Website and the Product Data that is sourced from a third party provider.
2.5. Advertising material
Material appearing on the Website may include advertising and other information submitted by parties other than the Licensor, and the Website may provide links to other sites operated by advertisers and third parties. Those parties (and not the Licensor) are responsible for ensuring that such information and such sites comply with all relevant Laws and regulations. The Licensor has no responsibility regarding any information the Licensee obtains from any other website, even if the Licensee accesses it via a link from the Website.
This Agreement will commence on the date it is signed by both parties and will continue for a period based on what's specified, subject to earlier termination of the Agreement in accordance with its terms.
The Licensor reserves the right to suspend or terminate this Agreement (including the Licensee’s access to the Product Data) without liability to the Licensee by providing 7 days’ written notice or when the further payments not been paid:
3.2.1. in the event that any amount payable by the Licensee under or in connection with this Agreement is not paid when due;
3.2.2. in the event that the Licensor or its service providers reasonably believe that the Licensee has used or disclosed the Product Data or other Confidential Information in a manner not permitted under this Agreement; or
3.2.3. an event of force majuere occurs that affects the Licensor’s ability to provide the Product Data or Website.
In respect of each calendar month of the Term, the Licensor shall invoice the Licensee based on the scale of charges stated in Schedule A and the Licensee shall make the payment on the Payment Date.
In the event of dispute on any invoice, the Licensee shall notify the Licensor of the reasons for the dispute but will otherwise pay that part of the invoice which is not in dispute.
Any charges or proportion thereof not paid by the Licensee will be subject to interest of 1.5% per month, calculated on a daily basis.
4.4. Failure to pay
Any failure to pay shall constitute a breach of the Agreement and the Licensor may immediately suspend or terminate this Agreement (including the Licensee’s access to the Website) without liability to the Licensor.
4.5. Recovery of payment
In the event of non-payment of any amounts payable by the Licensee under this Agreement by the relevant Payment Date, the Licensee will pay all of the actual costs of any debt collection incurred by the Licensor in recovering the unpaid amounts and any applicable interest.
5. NON-SOLICITATION OF EMPLOYEES
During the duration of this Agreement and in the event this Agreement is terminated for any reason whatsoever, the Licensee shall not either personally, or as an employee, consultant, contractor or agent, seek to solicit or engage or employ any employee, consultant, contractor or agent, solicit or engage or employ any affiliates of the Licensor, for any other person, including the Licensee itself, that deals with the work of the same nature as the Licensor.
6. LIMITED WARRANTY
The Licensor hereby represents and warrants that it will use commercially reasonable efforts to ensure that the Product Data are accessible via its Website in accordance with this Agreement. In the event of any breach of this warranty, the Licensee agrees Licensor’s sole and exclusive obligation (and the Licensee’s sole and exclusive remedy), is to use commercially reasonable efforts to modify, correct or provide access to the relevant Website.
The Licensor has no obligations to convert the material on the Website and the Product Data for use by the Licensee with their computer equipment and software (such conversion being entirely at the Licensee’s own risk), nor the Licensor have any obligation for training the Licensee or the Licensee’s personnel in the use of the material on the Website and the Product Data.
6.3. Accuracy of information
The Licensee understands, acknowledges and accepts that:
6.3.1. the Product Data does not constitute an appraisal of the subject property and are merely an estimate. The Product Data should not be relied upon in lieu of an appraisal or underwriting process. The accuracy of the methodology used to develop the data, the existence of the subject data, and the accuracy of the predicted value and all rule sets provided are estimates based on available data and are not guaranteed or warranted.
6.3.2. the condition of the subject property and current marketing conditions can greatly affect the validity of the Product Data. Any Product Data generated does not include a physical inspection of the subject property or a visual inspection or analysis of current market conditions by a licensed or certified appraiser.
6.3.3. the Product Data is provided without the benefit of inspection of any properties and on the basis that all properties are sold with vacant possession and without any material defects (including structural defects). The Licensee assumes sole responsibility from evaluation of the accuracy, completeness, usefulness and suitability of all information and data provided within the AVM.
6.3.4. except as otherwise expressly provided herein, the Product Data is provided to the Licensee on an ‘as is, as available’ basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for particular purposes, title, noninfringement, security, availability, accuracy, or otherwise.
6.3.5. the Product Data supplied is not a certified copy of any district valuation roll entry, not for lending purposes and is not a valuer’s report for the purposes of the New Zealand Trustee Act 1956.
7. LIMITATION OF LIABILITY
7.1. Liability on delivery
The Licensor shall not be liable (whether in contract, tort (including negligence), equity or on any other basis) for any indirect, consequential, special or other similar loss, damage, liability, or expense sustained by the Licensee or any other person, directly or indirectly, from any use whatsoever of the material on the Website and Product Data or otherwise in connection with this Agreement (even if Licensor has been advised of, or has knowledge of, the possibility of such loss, damage, liability or expense). Such loss and/or damage includes, damage to property, injury to persons, loss of profits, business interruption loss, loss of data, any other loss, damage or expense that arises either as a result of the material on the Website being shown to be wholly or partially incorrect or unsuitable, or arising from non-delivery or delay in delivery of the material on the Website and loss as a result of any amendment to or deletion of the material on the Website.
7.2. Liability on changes made
The Licensor shall not be liable (whether in contract, tort (including negligence), equity or on any other basis) for any loss, damage, liability or expense sustained by any other person, directly or indirectly, from any use whatsoever of the material on the Website, or otherwise in connection with this Agreement including any loss arising from any modification, amendment or deletion made to the material on the Website or the Product Data or any compilation or derivative work created from or using the material on the Website or the Product Data in each case whether made by the Licensee, or by any other person.
8. LICENSEE’S INDEMNITY
The Licensee shall indemnify and hold harmless the Licensor and its directors, officers and employees (each an Indemnified Party) from and against any and all losses, claims, liabilities, damages, costs and expenses (including any direct or indirect consequential lossses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) that any Indemnified Party may suffer or incur by reason of or in connection with the provision of the Product Data to the Licensee and/or any breach of this Agreement by the Licensee or any wilful, unlawful or negligent act or omission of the Licensee or any of its employees, agents or contractors.
9. INTELLECTUAL PROPERTY RIGHTS
The Licensee acknowledges and agrees that the Licensor shall remain the sole and exclusive owner of all right, title and interest in and to the AVM and the Product Data, including all material published on the Website (including, but not limited to, the textual material, artwork, photographs, computer software, audio and visual elements, and any and all other creations, inventions and intellectual proeprty rights (including any enhancement, suggestion, modification or derivative works or any intellectual property) contained or embodied within the Product Data.
10. CONFIDENTIAL INFORMATION
No Confidential Information may be disclosed by the Licensee to any person or entity except:
10.1.1. to the extent the Licensee is required to do by applicable Law; or
10.1.2. to the extent the Licensee is required to do so in connection with legal proceedings relating to this Agreement.
10.2. Breach of confidentiality
The Licensee acknowledges that due to the unique nature of Confidential Information, any breach by the Licencee of its obligations under this clause would result in irreparable harm to the Licensee for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Licensor will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Licensor may seek under applicable Law.
11.1. Service of notices
All notices hereunder will be in writing addressed to the Parties at the respective addresses shown in the Agreement or as updated by notice in writing to the other Party.
11.2. Effective on receipt
Notice will be deemed given:
11.2.1. in the case of hand-delivered mail upon delivery or alternatively in the case of ordinary mail on the fourth day after the date of posting; and
11.2.2. in the case of email transmission upon notification of a delivery receipt.
11.3. Process service
Any process or other agreement relating to litigation, administrative or arbitral proceedings in relation to this agreement may be served by any method contemplated by this clause in addition to any means authorised by law.
This agreement may be altered only in writing signed by each party.
12.2. Approvals and consents
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.
A party may only assign this agreement or a right under this agreement with the prior written consent of each other party.
This agreement may be executed in counterparts. All executed counterparts constitute one agreement. This agreement may be executed by either of the parties by duly executing a counterpart and forwarding a copy of the signed counterpart to the other party.
12.5. No merger
Except where this agreement expressly states otherwise, the rights and obligations of the parties under this document do not merge on completion of any transaction contemplated by this document.
12.6. Entire agreement
This document constitutes the entire agreement between the parties on connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
12.7. Further action
Each party must do, at its own expense, everything reasonably necessary to give full effect to this document and the transactions contemplated by it (including executing documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.
If the whole or any part of a provision of this document is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this document is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
12.9. Injunctive Relief
The Licensee agrees that in the event of a breach by the Licensee of any provision of this agreement, monetary damages may not be an adequate remedy and that in such circumstances the Licensor will be entitled to injunctive or other affirmative relief, or both, without such constituting an election of remedies or disentitling Licensor to each and every remedy available at law and/or in equity for a breach of this agreement.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where this agreement expressly states otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
The rights provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.
12.13. Governing law
This agreement will be governed by and construed in accordance with the law for the time being in force in New Zealand and the parties, by entering into this agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of New Zealand.
12.14. Exercise of rights
A party may exercise a right, at its discretion and separately or concurrently with another right.