Terms and Conditions

These Terms and Conditions are for use of RPNZ Data products on rpnz.co.nz and are between the customer and PropertyIQ.

1 Definitions and Interpretations

1.1 In this agreement unless the context otherwise requires, the following words will bear the meaning set out hereunder:

'Additional Services Request' means a signed request by the Customer for additional services.

'Agreement' means the Application, these Terms and Conditions and any Additional Service Request.

'Application' means the Application to Access RPNZ Data Products signed by the Customer.

'Company' means PropertyIQ NZ Ltd. 

'Confidential Information' means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Customer 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 Company, including any data (including Product Data), valuation and market share analyses, valuation models and tools, indices, programs or algorithms. 

'Customer' means the customer recorded in the Application. 

'Customer Materials' means any and all data, information, content, photographs and other materials provided or that may be supplied to the Company by the Customer (or otherwise obtained by the Company from the Customer), directly or indirectly, from time to time. 

'Effective Date' means the date that the Customer's logins and passwords have been created and the Customer is granted access to the Products. 

'Excluded Information' means Confidential Information which: (a) is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed to the Company; (b) the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by the Company (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or (c) the Customer acquires from a source other than the Company where such source is entitled to disclose it. 

'GST' means the tax imposed by the Goods and Services Tax Act 1985.

'Initial Period' means the term of the Agreement specified in the Application. 

'Insolvent' means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves. 

'Law' means common law, principles of equity, and laws made by parliament (laws made by parliament include laws (in New Zealand) and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them). 

'Party' and 'Parties' means the Customer and the Company. 

'Product Data' means any data or results, including any property information, ownership information, sales information, photographs, valuation or market share analyses, index results or alerts, contained within or provided through a Subscription Plan. 

'Products' means those property information services and/or valuation products listed as such on Schedule A provided as part of a Subscription Plan. 

'Renewal Period' has the meaning set forth in clause 2. 

'Rollover Period' means the period of the Agreement after the Initial Period which expires upon termination of the Agreement in accordance with clause 12.4

'Subscription Plan' means a subscription plan detailed in Schedule A as signed up for by the Customer as recorded on the Application.

'Term' means the Initial Period and any Rollover Period.

'Termination Date' means the date 90 days after the Company receives the completed termination form from the Customer.

'Territory' means New Zealand

'Website' means www.rpnz.co.nz.

1.2 The headings in this Agreement are for convenience of reference only and will not affect the interpretation hereof.  The words 'include' and 'including' when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.  A clause or Schedule is a reference to a clause or Schedule to this Agreement.  Words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders.

2 Duration

2.1 This Agreement will commence on the Effective Date and will continue for the Initial Period.  There after the Agreement will continue until terminated in accordance with clause 12 (Rollover Period).

3 License and Restrictions

3.1 Subject to the terms of this Agreement and the Customer's performance of its obligations, the Company hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable limited license during the Initial Period and any Rollover Period (if any) to access and use the Products and the Product Data in the Territory forming part of the relevant Subscription Plan, within the Customer's enterprise only and solely for the Customer's internal business purposes in the Territory. 

3.2 Except as set forth in clause 3.1, the Customer is not licensed to use the Products or the Product Data and hereby undertakes not to do so.

3.3 The Customer acknowledges and agrees to use the Products and the Product Data solely for the purpose for which they are intended, and in accordance with all applicable Laws.  Except as expressly permitted under this Agreement or to the extent permitted by applicable Law, the Customer and its employees and representatives will not, or encourage any person or entity to:

3.3.1 decompile, disassemble or otherwise reverse engineer all or any portion of the Products, including any source code, object code, algorithms, methods or techniques used or embodied therein

3.3.2 modify or create any derivative works based upon the Products or the Product Data

3.3.3 distribute, resell, disclose, market, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer any Product or Product Data to any third party, or use the Products or the Product Data on behalf of or for the benefit of any third party

3.3.4 remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Products or the Product Data

3.3.5 incorporate any portion of the Products or the Product Data into any other materials, products or services that are not intended for the Customer's internal business use; or

3.3.6 use, or offer to use, the Products or any Product Data for or in connection with any direct marketing activities. 

4 Access

4.1 The Customer will access the relevant Products via the Company's Website.  The Customer acknowledges and agrees that, in the event that the Company provides the Customer with any identification numbers and/or passwords, it:

4.1.1 bears sole responsibility for protecting all identification numbers and passwords

4.1.2 will not provide such identification numbers and passwords to any third party

4.1.3 will remain fully responsible and liable for any authorised or unauthorised use of any identification numbers and passwords

4.1.4 will for security purposes change such identification and passwords periodically or as directed by the Company from time to time. 

4.2 The Customer will be responsible for obtaining access to the Products, and for any and all costs and expenses in connection with accessing and using the Products, including Internet service provider fees, telecommunications fees, and the cost of any and all equipment (including hardware and software) used by the Customer in connection with its access and use of the Products as permitted hereunder. 

4.3 The Customer acknowledges that the Company will have no obligation to assist the Customer in using or accessing the Products except as expressly provided in this Agreement.  For clarity, the Company will not be liable for any delay, defect, deficiency and/or loss of service in connection with the Products or any loss caused by or on account of any of the following:

4.3.1 equipment, data or services supplied by the customer or any third party; or

4.3.2 any telecommunications organisation equipment or services (including any speeds or capabilities of such equipment or services) or any requirements of the telecommunications authority. 

4.4 The Company will not provide the Customer with any software, and all access to the Products will be via the Company's Website as provided in clause 4.1, except to the extent expressly provided in Schedule A. 

4.5 Subject to clause 7, the Company will maintain the Website through which the Products are accessed, and perform network, hardware or service maintenance services or upgrades, which may require the Products to be non-accessible for a period of time.  The Company will endeavour to perform such services or upgrades during typically low usage periods. 

4.6 The Company reserves the right to change or refine the features and functionality of any Product. 

5 Customer Materials

5.1 The Customer may from time to time provide or otherwise make available to the Company the Customer Materials.  The Customer hereby grants the Company and its service providers a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of, and otherwise commercialise and exploit, the Customer Materials. 

5.2 The Customer represents and warrants to the Company and its service providers that:

5.2.1 it has the right to grant the foregoing licenses in and to the Customer Materials;

5.2.2 the Customer Materials do not and shall not infringe upon or misappropriate any rights, including, without limitation, intellectual property rights, of any third parties or the Company and its service providers; and

5.2.3 that such Customer Materials are free of worms, viruses, Trojan Horses, and other disabling code.

6 Fees

6.1 The Customer will pay the Company the fees set forth in the Application and any Additional Service Request.  All such fees, when paid, are non-refundable, even if the Customer stops using the Products or the Product Data for any reason. 

6.2 The fees do not include any amount for GST.  If provision of the Products under this Agreement is subject to GST, the Customer must pay to the Company an additional amount equal to the relevant fee multiplied by the applicable GST rate.  Such additional amount is payable at the same time as the related fee.  When executed, to the extent permitted by applicable Law, this Agreement shall constitute a tax invoice.

6.3 On the expiration of the Initial Term, the Customer will be liable to pay those standard market rates then charged by the Company for the relevant Subscription Plan.

6.4 Any amounts not paid to the Company when due will be subject to interest equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by applicable Law, calculated on a daily basis. 

7 Limited Warranty

7.1 The Company hereby represents and warrants that it will use commercially reasonable efforts to ensure that the Products are accessible via its Website in accordance with the terms hereof.  In the event of any breach of this warranty, the Customer agrees, as the Company's sole exclusive obligation and the Customer's sole and exclusive remedy, to use commercially reasonable efforts to modify, correct or provide access to the relevant Product. 

7.2 To the fullest extent permitted by applicable Law and subject to clause 7.3, the warranty set forth in clause 7.1 is in lieu of any other warranties. All other warranties are hereby excluded, and the Company and its service providers hereby expressly disclaim all warranties and associated liabilities and does not warrant:

7.2.1 that the Products or the Product Data will meet the Customer's requirements

7.2.2 that the Products or the Product Data will be error-free;

7.2.3 that the Company's Website through which the Products and Product Data are accessed will function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure

7.2.4 regarding the use of the Products or the resulting Product Data, in terms of correctness, accuracy, reliability or otherwise

7.2.5 that the statistical methods on which any of the Products are based use appropriate or accurate assumptions, are fit for the Customer's particular purpose or are otherwise suitable for the Customer's use; or

7.2.6 that the performance of the Products will not be affected by data entry errors, including incorrect entries, double entries or delayed entries, or incorrect or untimely data supplied by the Company's third party suppliers.

7.2.7 that the material on the Website will be free from infection, viruses or destructive code and shall not be liable to you on any basis for any damage or loss suffered by you as a result of material on the Website infecting or damaging your computer equipment, software and any other electronic device.

7.3 Where the Company is a supplier (as that term is defined in the Consumer Guarantees Act 1993 (NZ) ('CGA')) of the Products, the Product Data or other goods or services, the Customer confirms that the Products, the Product Data or other goods or services provided by the Company under this Agreement are acquired for the purposes of a business (as that term is defined in the CGA) and the Customer agrees that the CGA does not apply to the Products, the Product Data or other goods or services supplied by the Company.

7.4 The Customer acknowledges and agrees that the Products do not constitute an appraisal of the subject property and are merely an estimate.  They should not be relied upon in lieu of an appraisal or underwriting process.  The accuracy of the methodology used to develop the Product Data generated by the Products, the existence of the subject property, and the accuracy of the predicted value and all rule sets provided are estimates based on available data and are not guaranteed or warranted. 

7.5 The Customer further acknowledges and agrees that the condition of the subject property and current market conditions can greatly affect the validity of the Products and 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, which is typically included in an appraisal.

7.6 The Products and the Product Data, including, without limitation, any information, data, prices, and quotations contained therein, are subject to change without notice. 

7.7 Except as otherwise expressly provided herein, the Products and the Product Data are provided to the customer 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, non-infringement, security, availability, accuracy, or otherwise.

8 Limitation of Liability

8.1 To the maximum extent permitted by applicable Law, in no event will the Company have any liability to the Customer whatsoever in respect of the service and Product Data other than;

8.1.1 re-supplying the service; or

8.1.2 refunding the cost of supplying the particular service in issue or the information.

9 Property Rights

9.1 The Customer acknowledges and agrees that, as between the Company and the Customer, the Company or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Products and the Product Data, including any and all creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. 

9.2 The Customer agrees that it acquires no rights in or to the Products or the Product Data provided pursuant to this Agreement except for the limited license set forth in clause 3.1, and that it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Company's and its service providers' ownership of the Products or the Product Data, or the creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. 

9.3 The Customer agrees that it will not make copies (other than for back-up or disaster recovery purposes) or derivative works of the Products and the Product Data.  All other uses of the Products and the Product Data not expressly addressed in this Agreement are strictly prohibited.

10 Usage

10.1 Without limiting any of the other terms of this Agreement:

10.1.1 The Customer will follow all reasonable instructions the Company gives from time to time with regard to the use of the Products and Product Data. 

10.1.2 The Customer will permit the Company at all reasonable times to check that the Products and the Product Data are being used in accordance with the terms of this Agreement, and for such purposes the Customer shall maintain complete and accurate records of the Customer's use of the Products and the Product Data. 

10.1.3 The Customer expressly acknowledges that the Company has entered into various licensing agreements for ongoing use of data with various data suppliers and as such the Company has undertaken certain contractual obligations. 

10.1.4 To assist the Company in meeting these obligations the Customer agrees to comply with and/or accept responsibility for all of the Company's obligations expressed or implied in such supplier agreements.

10.1.5 The Customer acknowledges and agrees that the Company's ability to provide the Products and the Product Data is subject to its agreements with third party suppliers:

(a) which agreements may expire or terminate; or

(b) which suppliers may not provide the services, products or data as provided under such agreements, and that in such circumstances the Company may not be able to, and will have no obligation to, provide some or all of the Products or the Product Data, either on a timely basis or otherwise.

10.1.6 If any use is made of the Products or the Product Data by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to the Company's other rights and remedies the Customer will immediately be liable to pay to the Company an amount equal to the charges which such person or entity would have been obliged to pay had the Company granted a licence to the unauthorised user at the beginning of the period of the authorised use.

10.1.7 The Customer will be fully responsible for any act or omission of any of its employees or agents.

10.1.8 The Company and reserves the right to suspend or terminate the Customer's access to the Products:

(a) in the event that any fee is not paid when due

(b) in the event that the Company or its service providers reasonably believe that the Customer has used or disclosed the Products, Product Data or other Confidential Information in a manner not permitted under this Agreement or otherwise has materially breached this Agreement, or

(c) an event of force majeure occurs that affects the Company's ability to provide the Products. 

11 Confidentiality and Privacy

11.1 No Confidential Information may be disclosed by the Customer to any person or entity except:

11.1.1 employees of the Customer requiring the information for the purposes of this Agreement who:

(a) are aware of the confidentiality obligations imposed in this clause 11; and

(b) have entered into written confidentiality agreements with the Customer which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 11;

11.1.2 to the extent the Customer is required to do so by applicable Law; or

11.1.3 to the extent the Customer is required to do so in connection with legal proceedings relating to this Agreement. 

11.2 The Customer must not use Confidential Information except for the purpose of exercising its rights or performing its obligations under this Agreement.

11.3 Clauses 11.1 and 11.2 do not apply to Excluded Information. 

11.4 Notwithstanding clauses 11.1 and 11.2, the Customer may disclose parts of the Product Data, or conclusions or summaries of information based on the Product Data, provided that the Customer has first obtained the Company's prior written consent for such disclosure and the Customer gives the Company credit as the source for the underlying data in a manner reasonably instructed by the Company.

11.5 The Customer will take any action that is necessary to prevent or remedy any breach of the Customer's confidentiality obligations or other unauthorised disclosure of Confidential Information.

11.6 The Customer will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.

11.7 The Customer may not make press or other announcements or releases relating to this Agreement and the transactions that are the subject of this Agreement without the Company's prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by applicable Law or by a stock exchange with which the Customer is listed. 

11.8 Except as otherwise agreed or duly required by applicable Law or any regulatory authority, no Party will disclose the terms of this Agreement to any person or entity other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis. 

11.9 The Customer acknowledges that due to the unique nature of the Confidential Information, any breach by the Customer of its obligations under this clause 11 would result in irreparable harm to the Company for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Company 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 Company and may under applicable Law.

11.10 The Customer will comply with all applicable privacy and data protection Laws.  The Customer will not provide any data to the Company containing personal information unless the owner of the data has specifically authorised the Customer to do so. 

12 Termination

12.1 Either Party has the right to terminate this Agreement, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:

12.1.1 the other Party becomes insolvent; or

12.1.2 the other Party commits a breach of this Agreement, and

(a) the breach is material and not capable of being cured, or

(b) if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) of being notified in writing of the breach by the Party giving the notice.

12.2 The Company will have the right to terminate this Agreement immediately upon written notice to the Customer in the event that Customer uses or discloses any Confidential Information, Product or Product Data other than expressly permitted under this Agreement.

12.3 Following the expiration of the Initial Term, the Customer will have the right to terminate this Agreement, with or without cause, upon at least ninety (90) days prior written notice to the Company in accordance with clause 12.4. 

12.4 In the event that the Customer elects to terminate this Agreement after the Initial Term pursuant to clause 12.3, the Customer will complete the relevant termination form located on the Company's Website.  The Agreement shall be deemed to be terminated 90 days after the Company's receipt of the completed termination form (Termination Date).  The Customer will be liable for those fees then charged by the Company for the relevant Subscription Plan up until the Termination Date. 

12.5 In the event that this Agreement is terminated, all of the Customer's rights to use the Products and Product Data will immediately terminate, and the Customer will at its expense promptly return, or at the Company's election destroy, any copies of Products, Product Data and other Confidential Information that are either in the Customer's possession or under the Customer's control.

12.6 Termination of this Agreement will not act as a waiver of any breach of this Agreement and will not act as a release of either Party from any liability for breach of such Party's obligations under this Agreement.  Neither Party will be liable to the other for damages arising by reason of termination of this Agreement in accordance with its terms. 

12.7 Either Party's termination of this Agreement will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.

12.8 The following clauses will survive any termination of this Agreement: 1, 4.2, 5, 6, 7, 8, 9, 10.1.1, 10.1.6, 10.1.7, 11, 12, 13, 14 and 15.  

13 Customer Indemnity

13.1 The Customer will defend, or at its option settle, any third party claim or suit brought against the Company on the basis of any breach by the Customer of this Agreement (or any act which, if true, would be a breach of this Agreement) or any use or reliance by the Customer of or on any Product or Product Data or any representations or promises made by or for the Customer to others due to or based on any Product or Product Data. 

14 Notices

14.1 All notices hereunder will be in writing addressed to the Parties at the respective addresses shown in the Application. 

14.2 Notice will be deemed given:

14.2.1 in the case of hand-delivered mail upon delivery or in the case of mail upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving Party (such receipt not to be unduly delayed or withheld), or alternatively in the case of ordinary mail on the fourth day after the date of posting

14.2.2 in the case of facsimile upon confirmed completion of successful transmission

14.2.3 in the case of email transmission upon notification of a delivery receipt.

14.3 A Party may change its address for service of notices under this clause by giving written notification of the new address to the other Party.

15 Miscellaneous

15.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by the Party to be bound. 

15.2 This Agreement will be governed by and construed in accordance with the Laws in New Zealand .  Each Party submits to the non-exclusive jurisdiction of the courts of that place. 

15.3 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions on this Agreement will be binding unless in writing signed by each Party.

15.4 The Customer may not assign this Agreement without the Company's written consent.  The Company may assign this Agreement or any part of this Agreement, or any right or obligation under this Agreement, without notice to or the consent of the Customer.

15.5 The Customer warrants that it has not relied on any representation made by the Company which has not been expressly stated in this Agreement or upon the descriptions or allusions or specifications contained in any document including any catalogue or other material produced or made available by the Company.

15.6 The Company will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of the Company (whether happening in the Territory or elsewhere, including acts of God, refusal of licence, refusal or revocation of any telecommunications organisation's consent in respect of data communication equipment, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data).

15.7 If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction.  The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.  This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

15.8 Nothing contained or implied in this Agreement constitutes one Party the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.

15.9 The rights and remedies provided in this Agreement are in addition to other rights and remedies given by applicable Law independently of this Agreement.

15.10 This Agreement constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

Schedule A

RPNZ Subscription Plans

Products

1. RPNZ Property Data

• Property ownership
• Sales history
• Property photos
• Property attributes and features
• Property zoning
• Analytical tools and modules
• Mapping capabilities

2. CMA (Comparative Market Analysis) Property Profiler

• An automated system that allows you to produce a report on the property that includes:
• comparable past sales and current listings
• area demographics
• area, house, and land statistics.

3. Prospector

• On The Market (OTM) – current and historical property listings.
• Phones – name and phone numbers for the person occupying the property.