TERMS
OF USE OF VALOCITY SYSTEM FOR NZFSG
BACKGROUND
A.
We are the provider of the online report and ordering system known as
“Valocity”.
B.
You are a member of the NZFSG Group (the “Group”). We and NZFSG have
entered into an agreement pursuant to which we have agreed to make the Valocity
System available to members of the Group.
C.
We have agreed to make the Valocity System available to NZFSG and the
Group subject to all Group Brokers (and their relevant employees and
contractors) who wish to have access to the Valocity System agreeing to comply
with these terms and conditions of use.
TERMS
1.
Definitions and
Interpretation
1.1
Definitions: In these Terms, unless the context otherwise
requires:
“Auckland Council Data” means the data owned by Auckland Council that we
have an agreement with for the supply of such data;
“Bank” means a registered bank in New Zealand;
“Business Day” means a day that is not a Saturday, Sunday or a statutory public
holiday in Auckland, New Zealand;
“Business Hours” means the hours from 8.30am to 5pm on any Business Day;
“Client” means a client or potential client of the Bank;
“Confidential Information” means information that:
(a)
Relates to these Terms, or is acquired or received by you under these
Terms or through your use of the Valocity System (including, without
limitation, the names of the Reports, Report’s that can be ordered via the Valocity
System, the content of the Reports, and the information contained within the
Valocity System);
(b)
Is by its nature confidential;
(c)
Is designated by us as being confidential; or
(d)
You know or ought reasonably to know is confidential,
but does not include information that:
(e) Is or becomes generally
available to the public other than as a result of disclosure by, or the acts or
omissions of, you; or
(f) Has been independently
developed or acquired by you (except where the information was acquired from a
person who breached an obligation of confidentiality in disclosing the same);
“Contract” means a contract formed in accordance with clause 3.1 or clause 3.2 (as
applicable), which contract incorporates these Terms and the Request;
“Data” means all data provided by us which may extend to but not be limited to
ownership, official sales, recent sales, titles, geospatial imagery, addresses,
risk, property attributes (including area and number of bedrooms and
bathrooms), listings and other documents and information;
“Desktop Valuation” means Valuation Services which, in accordance with
the terms of a Valuation Request, do not require a physical inspection of the
interior and exterior of the Property but which involves the analysis of
independent data and, if specified in the Valuation Request by you, a visual
inspection of the Property by means of a “drive-by”;
“Force Majeure Event” means anything outside our reasonable control,
including acts of God, strikes, acts or omissions (including laws, regulations,
disapprovals or failures to approve) of any Governmental Agency and includes:
(a) An
unavoidable accident, explosion or public mains electrical supply failure;
(b) Sabotage,
riot, civil disturbance, insurrection, epidemic, national emergency (whether in
fact or law) or act of war (whether declared or not);
(c) Any
requirement or restriction of, or failure to act by, any Governmental Agency;
or
(d) Any
other similar cause beyond our reasonable control;
“Full Valuation” means a full market valuation assessment of the subject Property prepared
by a Valuation Firm or Valuer for the benefit of the Bank, and ordered by you through
the Valocity System;
“Governmental Agency” includes any state or government and any
governmental, local governmental, semi-governmental, judicial, statutory or
regulatory entity, authority, body or agency or any person charged with the
administration of any Law;
“Group” means the group of brokers affiliated with NZFSG;
“Head
Agreements” means the agreements
between us and the Suppliers and “Head Agreement” means any one of them;
“Headway Data” means the data owned by Headway Systems Limited that we (or one of our
Related Companies) have an agreement with for the supply of such data;
“In-house Reports” means the written reports, listed in Schedule 1
under the section “In-house Reports and Services”, and such other reports added
to that section from time to time by us by notice in writing to NZFSG, and “In-house
Report” means any one of them;
“In-house Services” means the services listed in Schedule 1 under the
section “In-house Reports and Services”, and such other services added to that
section from time to time by us by notice in writing to NZFSG, and “In-house
Services” means any one of them;
“In-house Report Purpose” means to assist you in making a lending decision,
or any other internal purpose of yours;
“Intellectual Property” means all trade secrets, technical data,
proprietary data, technical analyses, algorithms, pricing information, computer
programmes, software (including source and/or object code), know-how, research
records, market surveys, market analyses, customer and supplier lists and similar
data, competitor information and all derivations, developments or
representations of such material, including without limitation, know-how in the
form of designs, design rights, copyright and similar intellectual property
rights;
“Insolvency Event” means, where you:
(a)
Cease or take steps to cease to conduct your business in the normal manner;
(b)
Are:
(i)
Subject to any arrangement, assignment, moratorium, composition or
compromise with or from your creditors;
(ii)
Dissolved,
in each case other than to carry out a
reconstruction or amalgamation while solvent;
(c)
Are unable to pay your debts when they are due or are presumed to be
unable to pay your debts in terms of section 287 of the Companies Act 1993 or
the Insolvency Act 2006;
(d)
Have a controller, administrator, statutory manager, liquidator or
provisional liquidator, receiver, receiver and manager, trustee or similar
official appointed with respect to you or over the whole or any part of your
assets or undertaking;
(e)
Have an application or order made, or a resolution passed, for your
winding up;
(f)
Being a company, are removed from the Register of Companies;
“Insurance Valuation” means an assessment of the Property prepared by a
Valuation Firm or Valuer for your benefit for insurance purposes through the
Valocity System;
“Licensed Data” means the data owned by us or one or more of our
Related Companies, the Auckland Council Data, the Headway Data, or data owned
by any other Supplier as applicable, and all Intellectual Property therein, to the extent that
the same is provided or made available by us to you under these Terms or
through your use of the Valocity System;
“Loss” means, in relation to any person, any damage, loss, cost, expense (including
legal expenses on a full indemnity basis) or liability incurred by the person,
however arising and whether present or future, fixed or unascertained, actual
or contingent;
“Metropolitan Area” means an area that has a post code in an urban
centre where a Valuation Firm or Valuer is located;
“NZFSG” means NZFSG Limited (NZBN: 9429036787197);
“Non-Valuation Services” means
all Services, except for Valuation Services;
“NZIV” means the New Zealand
Institute of Valuers (or any replacement institute or body) or any other
similar body;
“Other Services” means other services available for order via the Valocity System from
time to time by us giving notice in writing to NZFSG;
“PINZ” means the Property Institute of New Zealand Inc (or any replacement
institute or body) or any other similar body;
“Privacy Act” means the Privacy Act 1993;
“Property” means the property, premises, site, or location in respect of which the Valuation
is to be undertaken by the Valuer pursuant to a Valuation Request;
“Purpose” means the:
(a)
Valuation Report Purpose;
(b)
In-house Report Purpose; or
(c)
Any other purposes specified by us or a Services Provider with respect
to a report,
“Related Company” means:
(a)
A “related company” as defined in section 2(3) of the Companies Act
1993; and
(b)
Any company (first company) which is related to another company (second
company) by virtue of the fact that more than half of the issued shares in the
first company and the second company are owned directly or indirectly by the
same person or group of persons (including, without limitation, trustees of a
trust);
“Report” means either a Valuation Report, In-house Report or other report:
(a)
That is loaded onto the Valocity System;
(b)
That is prepared in accordance with a Request and these Terms;
(c)
That may be either a template or PDF report;
“Request” means a request made by you through the Valocity System for either a
Valuation Request, request for In-house Services or Other Services;
“Service Provider” means the Valuation Firm, us or the provider of the
Other Services, as applicable;
“Services” means the Valuation Services, In-house Services or Other Services;
“Suppliers” means the owners or licensors of the Licensed Data that
we (or one of our Related Companies) have an agreement with to supply the
Licensed Data, namely:
(a)
Headway Systems Limited in relation to the Headway Data;
(b)
Auckland Council in relation to the Auckland Council Data; and
(c)
Any other third party with whom we (or one of our Related Companies) have
an agreement with for the provision of data which data is used by us for the
purposes of preparing any Report or is otherwise embodied in any Report (whether
in whole or in part),
and “Supplier”
means any one of them;
“Terms” means these terms and conditions of use of the Valocity System
(including the Schedules) as the same may be amended from time to time under
clause 11.1;
“Third Party Material” means material owned by a third party that is
included, embodied in or attached to a Contract or a Report;
“Urgent Report” means a Valuation Report that is requested in a timeframe of 48 hours or
less (or such other timeframe that is less than the timeframes set out in Schedule
3);
“Us” “our” and “we” means Data Insight Limited (NZBN: 9429030733466) or any person to whom we transfer ownership
of the Valocity System and assign our rights under these Terms;
“Valocity System” means the valuation ordering
system known as Valocity;
“Valuation” or “Valuation Services” means the services as listed in Schedule 1
under the section “Valuation Reports and Services”, and any other such services
as may be added from time to time by us by notice in writing to NZFSG to be
performed by the Valuation Firm pursuant to a Valuation Request;
“Valuation Firm” means any Valuation Firm who has been appointed by us to undertake the
Valuation or Valuation Services;
“Valuation Report” means a written report
listed in Schedule 1 under the section “Valuation Report and Services”, and any
other reports added to this section from time to time:
(a)
That contains the Valuation Firm’s or Valuer’s (as the case may be)
branding and valuation terms (as approved by us);
(b)
That contains the key data variables requested as a summary to be
presented as an Executive Summary (ExecVal) in the
manner specified by us from time to time;
“Valuation Report Purpose” means the purpose for which a Report may be used
which if not stated in the Valuation Request shall be limited to the internal
personal or business use of the recipient of the Report;
“Valuation Request” means a request for Valuation
Services;
“Valuer” means any registered valuer who has been approved by us to undertake
the Valuation or Valuation Services; and
“you” and “your” means a broker (or any employee or contractor of such a
broker) who is a member of the Group and who has been granted access to the
Valocity System.
1.2
Interpretation: In these Terms, except
where the context otherwise requires:
(a)
The singular includes the plural and vice versa, a gender includes other
genders, and another grammatical form of a defined word has a corresponding meaning;
(b)
A reference to a clause, paragraph or schedule is to a clause or
paragraph of, or schedule to, these Terms, and a reference to these Terms
includes any schedule;
(c)
A reference to a party to a document includes the party's executors,
administrators, successors and permitted assigns and substitutes, and a
reference to a person includes a natural person, partnership, body corporate,
association, governmental or local authority or agency or other entity;
(d)
Headings are for ease of reference only and do not affect
interpretation.
2.
Access to the Valocity
System
2.1
Access: From the time at which you
are first registered and log on to use the Valocity System until such time as
your access to the Valocity System is terminated under clause 8.1 of these
Terms, we will grant you access to the Valocity System for:
(a)
The purpose of making a Request and obtaining a Report; and
(b)
The purpose of accessing information about a property; and
(c)
Any other purpose approved by us in writing.
We grant to you a non-exclusive, non-transferrable licence to use the
Valocity System solely for the purposes set out in this clause 2.1. We warrant that we are entitled to grant the
limited licence to use the Valocity System set out in this clause 2.1.
2.2
No rights: Nothing in these Terms transfers or creates
any rights or interest in favour of you in the Valocity System. All
intellectual property rights in the Valocity System, or any of the displays,
outputs, visual representations or data on the
Valocity System same shall remain our (or our applicable licensor’s) exclusive
property at all times.
2.3
Use of content: No information accessed through or received
from the Valocity System may be used, reproduced, distributed, transmitted,
published, copied, transferred or commercially exploited by you in any way that
would constitute an infringement of any copyright, patent, trade mark, design
or other intellectual property right. The information or details of the system Reports,
access, outputs or pricing may not be shared with any competitor of ours.
2.4
Restrictions: You shall:
(a)
Access and use the Valocity System only in accordance with these Terms,
and such other reasonable directions as are given by us from time to time;
(b)
Not grant any form of licence (without our prior written consent, which we
may withhold in our absolute discretion) or purport to sell, rent, lease or
otherwise transfer any rights in the Valocity System for any purpose;
(c)
Access and use the Valocity System only for the purposes set out in
clause 2.1;
(d)
Use your best endeavours to procure that no person under your control
takes any action likely to adversely affect the operation of the Valocity System;
(e)
Not amend, or attempt to amend, any software, information or settings on
the Valocity System.
(f)
Not share any reports, log in or outputs with any competitor of ours.
2.5
Support: Subject to you complying
with these Terms, we shall:
(a)
Provide you with reasonable assistance in accessing the Valocity System;
(b)
Upon request, provide you with limited telephone technical support
during Business Hours regarding use of the Valocity System, but we are
otherwise under no other obligation to provide any training or on-site
technical support;
(c)
Supply at our own cost a user manual and conferenced telephone training
(if requested by you) to a reasonable level of competency to allow efficient
use of the Valocity System.
Any assistance, training or support provided by or
on behalf of us in addition to that set out above in this clause 2.5 may be charged by us to you
on a time and materials basis.
2.6
System Access:
(a)
We will provide you with a user account (including a password and login
ID) in order for you to access the Valocity System.
(b)
You must keep all user accounts, user names and
passwords secure at all times.
(c)
You must not disclose account, user log-in or password information relating
to the Valocity System to any other person (except with our prior approval in
writing), and must immediately inform us upon becoming aware of any actual or
suspected unauthorised use of the Valocity System.
(d)
You will remain fully responsible for any unauthorised use of any Valocity
System identification numbers, log-ins, access codes
or passwords issued to you.
(e)
If you wish your access to the Valocity System to be removed
you should notify us in writing immediately.
(f)
You must immediately notify us if you become aware of any breach of the
access and security protocols contained in these Terms.
(g)
You will for security purposes change your Valocity System access codes
and passwords as directed by us from time to time.
2.7
Acknowledgments: You expressly acknowledge that:
(a)
The Valocity System is provided on an ‘as-is’ basis and, without
limitation, we make no representations about the compatibility of the Valocity
System with your software, procedures or practices, and take no responsibility
for the same.
(b)
You are responsible for providing internet connectivity necessary to
access the Valocity System. We are not responsible for providing hardware
necessary to access the Valocity System or send or receive communications to or
from the Valocity System.
(c)
We cannot and do not guarantee that access to the Valocity System will
be uninterrupted or that it will operate error-free or be malware-free or that
it will meet your requirements.
(d)
We will implement reasonable security measures (including
industry-standard security systems), but we are not responsible for, take no
responsibility for and to the maximum extent permissible by law exclude all
liability for:
(i)
Loss or damage sustained by you as a result of unauthorised access to
the Valocity System; or
(ii)
Any disclosure, loss or corruption of data contained on the Valocity
System.
(e)
We give no warranty with respect to the performance of the Valocity
System or with respect to the accuracy or completeness of any information
provided on the Valocity System or the security of transmission of such
information via the Valocity System.
2.8
System Content: You expressly acknowledge that
we do not control the content of information posted by users of the Valocity
System. You agree that we may:
(a)
Reject any communication from you or information posted on the Valocity
System by you;
(b)
Require you to remove any information posted on the Valocity System by you
or using your passwords and login; and
(c)
In our absolute discretion, edit or amend any information posted on the
Valocity System.
2.9
Instructions: You shall follow all
reasonable instructions we give from time to time with regard
to the use of the Valocity System.
2.10
Acting on instructions: You warrant
that in ordering Valuation Services you have authority to bind the Bank you
nominate on the Valocity System. We may rely on the exercise or purported
exercise by you of any Request or instruction given via the Valocity System and:
(a)
Need not enquire:
(i)
Whether the relevant rights were exercised or are exercisable; or
(ii)
About the propriety or regularity of any transaction or dealing; and
(b)
Will not be affected by notice that any such transaction or dealing is
unnecessary or improper.
You:
(c)
Shall indemnify us, our Related Companies and the Valuation Firm and
Valuers (each, an “Indemnified Person”) against any Loss suffered or incurred
by the Indemnified Person as a result of acting on any Request or instructions
of you or any instructions issued via the Valocity System using your access
code, password and/or login details; and
(d)
Waive any claim you may have against us for acting on any such instructions.
This clause 2.10 will survive termination of
your access to the Valocity System without limit in time.
3.
Ordering Services
3.1
Valuation Services: All Valuation Services shall
be ordered at the initiation of you and according to the following process:
(a)
You may at any time request Valuation Services by completing a Request.
(b)
We agree to engage a Service Provider to carry out all Valuation Services,
and to supply all Reports to the Bank selected by you via the Valocity System,
in accordance with these Terms and the Request, which together comprise the
terms and conditions of each Contract.
(c)
A separate Contract is formed between us and you when we accept a
Request, which acceptance will occur upon us giving notice of acceptance via
the Valocity System. At any time prior
to a Contract being formed, you may withdraw a Request.
(d)
Each Contract commences on the date of acceptance of the Request, and
ends when the Valuation Services to be performed under the Contract are
completed and uploaded onto the Valocity System, or the Contract or your access
to the Valocity System is terminated under clause 8.1 of these Terms (save for
any provisions intended to survive such termination).
3.2
Non-Valuation Services: All Non-Valuation Services
shall be ordered at the initiation of you and according to the following process:
(a)
You may at any time request Non-Valuation Services by completing a
Request.
(b)
We agree to either complete the Non-Valuation Services (in the case of In-house
Services) or engage a Service Provider to carry out the Non-Valuation Services,
and to supply all Reports to you via the Valocity System or by email, in
accordance with these Terms and the Request, which together comprise the terms
and conditions of each Contract.
(c)
A separate Contract is formed between us and you when we accept a
Request, which acceptance will occur upon us giving notice of acceptance via
the Valocity System. Unlike Valuation
Services, you may not cancel the Non-Valuation Services once ordered and a
Contract has been formed.
(d)
Each Contract commences on the date of acceptance of the Request, and
ends when the Services to be performed under the Contract are completed and
uploaded onto the Valocity System, or the Contract or your access to the Valocity
System is terminated under clause 8.1 of these Terms (save for any provisions
intended to survive such termination).
3.3
Completion of Report: If
applicable, upon completion of each Report, the Service Provider or us (as the
case may be) will upload the Report in PDF format on the Valocity System and
inform you of such.
3.4
Valuation Services: The following terms also apply when the
Services are Valuation Services:
(a)
Valuation Requests: You must ensure
that Valuation Requests contain the following:
(i)
Whether Valuation Request is for a Desktop Valuation, Insurance
Valuation or a Full Valuation;
(ii)
Whether the Valuation Request is urgent or whether there is a timeframe
for completion;
(iii)
The bank or lender name to which the valuation needs to be addressed;
and
(iv)
Any other specific requirements as notified by us to you from time to
time.
(b)
Selection: At the time a Valuation Request is made, the Valocity System will
randomly select a Valuer in relation to the relevant postcode of the Property
to perform the Services. In the event that such
Request is not accepted by the Valuer, we will re-allocate that Request to a
different Valuation Firm or Valuer.
(c)
Urgency Fee: The Valuation Firm may charge an
urgency fee if the Report is requested in less time than the SLA for the
postcode.
(d)
Assumptions: You acknowledge that the Reports
are prepared on the basis of the assumptions set out
in Schedule 2 as the same may be amended by us and notified to you in writing
from time to time.
(e)
Issuing Reports: We will use our reasonable endeavours to procure that the Valuation
Firm:
(i)
Must ensure that each Report is signed off by the specific Valuer to
whom the Report was made via the Valocity System;
(ii)
Must ensure that each Report is addressed to the Bank selected by you and
references the Client(s);
(iii)
Acknowledges and agrees that each Valuation Report may be used for the
Purpose.
(f)
Service Levels: We will use our reasonable endeavours to comply with the Service Levels set
out in Schedule 3.
3.5
In-house Services: When the
Services are In-house Services, we also agree to use our reasonable endeavours
to comply with the Warranties set out in Schedule 3.
3.6
Addition of Other Reports and Services: We may, by notice in writing to NZFSG,
specify other reports and other services as well as the associated fees.
4.
Licensed Data
4.1
Licence and Terms of Use: To the
extent that you are provided with Licensed Data as part of the Services or
Reports, we grant to you a non-exclusive, non-transferrable licence to use the
Licensed Data solely for the Purpose. In
consideration for such licence, you also agree to comply with the terms of use set out in
Schedule 4 as the same may be updated from time to time by us and notified to you
(either directly or via NZFSG) in writing.
5.
Fees
5.1
Fees: In accordance with the fee arrangements which
we have agreed with NZFSG, certain reports (“Free Reports”) which can be
ordered through the Valocity System will be made available free of charge to
you if you are one of the Group brokers for whom NZFSG pays us an annual
licence fee (“Applicable Broker”). If:
(a)
You are an Applicable Broker and you order a report or service through
the Valocity System which is not a Free Report; or
(b)
You are not an Applicable Broker and you order any report or service
through the Valocity System,
then you will have to pay
the applicable fee for such report or service in accordance with the
instructions on the Valocity System at the time of ordering such report or
service. If you instruct us (via the Valocity System or otherwise) that a Bank
is to pay the fee for a relevant report or service ordered via the Valocity
System then you warrant to us that you have the Bank’s authority to issue such
instruction.
5.2
Commencement of Services: You acknowledge and agree that if payment is to be made
in accordance with the instructions on the Valocity System, we may withhold notifying
the Service Provider to commence performing the relevant services until we have
received confirmation of payment of the applicable fee in full.
6.
Intellectual Property rights
6.1
System and Data: You acknowledge and agree that:
(a)
We and/or one or more of our licensors owns the Valocity System, and
that all Intellectual Property rights in the Valocity System (whether current
or future) are vested in us and/or one or more of its applicable licensors;
(b)
We and/or one or more of our licensors owns the Data, and that all
Intellectual Property rights in the Data (whether current or future) vests in us
and/or its applicable licensor(s) upon its creation;
(c)
You shall not use, reproduce, create derivative works, copy or
commercially exploit any part, aspect or functionality of the Valocity System
or any Data without our prior written consent.
6.2
Report: Intellectual Property arising
out of each Report shall be owned by:
(a)
The Service Provider (in relation to Reports
that relate to all Services other than In-house Services); or
(b)
Us (in relation to Reports that relate to In-house Services).
Notwithstanding the above, we
will grant, or procure that the Service Provider grants, you a non-exclusive,
non-transferable, revocable, royalty-free licence to use any Report (as
applicable) only and solely for the Purpose, provided that neither the whole,
nor any part of a Report may be provided, reproduced or included in any
published document, circular or statement without our prior written approval.
6.3
Service Provider Data/Third Party Material: We
will use our reasonable endeavours to procure that the Service Provider:
(a)
Warrants and represents in favour of us that the Service Provider owns
or has adequately licensed the Data; and
(b)
Must obtain all necessary copyright and other Intellectual Property
permissions before including any Third Party Material
in a Report or using Third Party Material as part of the Services.
7.1
Our liability: You acknowledge and agree that,
to the full extent permissible by law, we will not be liable to you (directly
or indirectly, whether that liability arises in contract, tort (including but
not limited to negligence), equity, under statute or otherwise) for any Loss
caused by, arising out of or in any way connected with the use of the Valocity
System and Report by you or the performance of the Services under these Terms,
and you hereby release, discharge and hold us harmless from all liability and
responsibility in respect of the same. For
the purposes of this clause 7.1, you also acknowledge and agree that:
(a)
Certain information supplied in a Report is obtained from third party
sources that are independent of and outside of our control. We take no
responsibility for, or guarantee in any way, the accuracy (or completeness of
such information);
(b)
We are not responsible for or in any way liable to you in respect of or
in connection with the contents of any Report.
7.2
Exclusion of warranties: To
the maximum extent permissible by law, but subject to the express warranties
contained in these Terms, we exclude all warranties and representations
(direct, indirect or implied) in relation to the use and operation of the
Valocity System, any Report or Services and these Terms.
7.3
Limitation of Liability: Where it is not possible at
law to exclude liability, our liability to you is limited to the provision of a
replacement report.
7.4
Consequential Loss: We will not be liable to you, in any way related to
the use and operation of the Valocity System, these Terms, any Report or any
Request, whether that liability arises in contract, tort (including
negligence), equity, under statute or otherwise, for:
(a)
Loss of profits or loss of revenues (in each case whether direct or
indirect); or
(b)
Any indirect, special or consequential loss or damage whatsoever (except
in instances of fraud or wilful concealment).
7.5 Suppliers’ Liability: To
the maximum extent permitted by law, neither the Suppliers nor any of their
respective directors, officers, employees, agents or their councillors shall be
liable for any loss, injury damage or expense suffered
by you arising from the Licensed Data and/or supply, delivery, access and/or
lack of supply, delivery or access to the Licensed Data, whether under
contract, tort (including negligence), equity, under the Consumer Guarantees
Act 1993, or otherwise.
8.
Termination of Access to
Valocity System
8.1
Termination of Access: We may terminate your
access to the Valocity System, or any part of the Services under these Terms:
(a)
At any time, without cause, by giving you three (3) months’ prior written
notice;
(b)
Immediately, on written notice to you, if you breach a material
provision of these Terms and fail to remedy the breach within 5 days after
receiving notice requiring you to do so;
(c)
Immediately, on written notice to you, if you breach a material
provision of these Terms and (in our sole opinion) that breach is not capable
of remedy;
(d)
Immediately, on written notice to you if an Insolvency Event occurs in
relation to you;
(e)
Immediately if you cease to be a member of the Group;
(f)
Immediately if the agreement between us and NZFSG is terminated or
expires.
8.2
Notification of Default: You will
immediately notify us if any of the events referred to in clause 8.1 occur in
relation to you.
8.3
Effect: Termination of your access
to the Valocity System under clause 8.1 will not terminate any active Requests
which will remain in full force and effect
8.4 Consequences of Termination:
(a)
Upon termination of your access to the Valocity System under clause 8.1
you must immediately:
(i)
Stop using the Valocity System and any user manuals and other materials
provided by us in connection with the Valocity System (except as reasonably
necessary to complete Contracts initiated by you prior to termination);
(ii)
Return to us copies of all documentation, user manuals and other
information provided by us and pertaining to the Valocity System which are in your
possession or under your control;
(iii)
Without limitation to (ii) above, return to us all Confidential
Information of ours which is in your possession or under your control, and
which is capable of being delivered;
(iv)
Destroy all Confidential Information of ours which is in your possession
or under your control, and which is not capable of being delivered.
(b)
You are not entitled to compensation for loss of prospective profits on
account of any termination of your access to the Valocity System.
8.5
Accrued rights and remedies: Termination of your access to the Valocity System does not affect any accrued rights or
remedies under these Terms and under any Contract.
9.
Force Majeure
9.1
Force Majeure Event: You agree that we will not be liable for any
failure to comply with any of our obligations under these Terms or with respect
to a Contract to the extent that such failure is caused by a Force Majeure
Event.
10.
Confidentiality
10.1
Use and disclosure of Confidential Information: You must ensure that any Confidential Information received from us is kept confidential at all times and you must not:
(a)
Use or reproduce any of our Confidential Information other than in
performing or giving effect to these Terms or exercising your rights under
these Terms or where disclosure or use of any Confidential Information is
expressly permitted under these Terms; or
(b)
Disclose any of our Confidential Information to any person, except:
(i)
With our prior written consent (in giving our written consent to the
disclosure of Confidential Information, we may impose such conditions as we
think fit, and you shall comply with those conditions);
(ii)
To your advisers solely in order to comply with obligations, or to
exercise rights, under these Terms;
(iii)
If required by law or order of any court;
(iv)
If required by any Governmental Agency or other body having the power to
compel disclosure;
(v)
If required in connection with legal proceedings relating to these Terms,
or otherwise required in connection with the exercise of your rights or the
enforcement of our obligations under these Terms; or
(vi)
If required under the rules of any securities exchange or by order of
any securities exchange.
10.2
Notification of disclosure: You must immediately provide us with notice of any
actual or potential breach of clause 10.1 and co-operate with us in
any investigation, prosecution, litigation or other
action taken by us regarding any breach.
10.3
Release: The obligations under this
clause 10 continue until we provide
notice in writing to you that the information is no longer confidential.
10.4
Return of Confidential Information: You must, on request at any time by us,
return or destroy Confidential Information of ours in your possession or
control, or in the possession or control of any of your employees, agents,
subcontractors or suppliers, provided that this clause does not apply where you
have an express right under these Terms to continued use of such Confidential
Information.
10.5
Use of Reports: Nothing in this clause 10 limits or restricts your
right to use the Reports and other outputs of the Services in accordance with
the other provisions of these Terms.
10.6
Privacy obligations paramount: Nothing in these Terms or a
Contract derogates from any obligation which either you or us may have under
the Privacy Act, in relation to the protection of personal information.
11.
Miscellaneous
11.1
Variations: We may vary these Terms at
any time on not less than 30 days’ notice in writing to you.
11.2
Approval or Consent: Except where these Terms
state otherwise, we may, in our discretion, give conditionally or
unconditionally or withhold any approval or consent under these Terms.
11.3
Survival: Any indemnity or any obligation
of confidence under these Terms is independent and survives without limit in
time. Any other clause of these Terms which by its nature is intended to
survive any termination of access to the Valocity System under clause 8.1 will
survive such termination.
11.4
Waiver: We do not waive a right,
power or remedy under these Terms if we fail to exercise or delay in exercising
the right, power or remedy. A single or partial exercise of a right, power or
remedy by us does not prevent another or further exercise of that or another
right, power or remedy. A waiver of a right, power or remedy conferred on us
under these Terms must be in writing and signed by us.
11.5
Governing Laws: These Terms are governed by
the laws of New Zealand and you irrevocably and unconditionally submit to the
non-exclusive jurisdiction of the courts of New Zealand with respect to these
Terms and all aspects of the use and operation of the Valocity System.
11.6
Assignment: You may not assign any of your interests,
rights or obligations under these Terms without our prior written consent (not
to be unreasonably withheld or delayed).
11.7 Contracts
(Privity) Act 1982: For
the purposes of the Contracts (Privity) Act 1982, each Supplier is entitled to
enforce against you each provision of these Terms which confer a benefit upon
that Supplier.
SCHEDULE
1
REPORTS AVAILABLE THROUGH VALOCITY
Valuation
Reports and Services
|
Desktop Valuation |
A valuer is allocated the valuation via the
platform to create a form and template to mimic the valuer process and methodology
to create a current value by the valuer without the valuer inspecting the property |
|
Full Market valuation |
A valuer is allocated an order request
through the Valocity system for them to internally inspect a property in
order to complete and upload for the lender a full detailed market valuation report |
Valocity
Reports and Services
|
Rating
Valuation (RV/CV) |
This
report provides details of the rating valuation/capital value and revision
date as provided by the local council. These values are reviewed every 3
years. |
|
iVal
(AVM) |
This
report provides the current market estimated value of the property after analysing the sales of properties with similar attributes
that have recently sold in a similar geographical area. Can be run on up to
99% of residential properties (excluding vacant sections.) |
|
Certificate
of Title Summary |
This
report provides a summary of the title information including title number,
legal description, owners name, land area and current interests recorded
against the title. |
|
Order
Titles/Instruments/Diagrams/Plans |
Valocity
allows the user to order and receive electronically a range of title documents
including a copy of the title with diagram/plan, instrument documents,
guaranteed title, and survey plans. |
|
Sales
History |
This
report provides a listing of the known prior sales of the property being
searched providing sale price and date and basic property information. |
|
Local
Sales |
This
report lists the most recent sales available in the immediate locality of the
property being searched and provides sale date, basic property information
and sale method. |
|
Comparable
Properties Sold |
This
report lists the most recent comparable sales available in the immediate
locality of the property being searched and provides sale date, basic
property information and sale method. |
|
Building
Consent History |
Provides
building consent details on the subject property including consent number,
date, nature and value of the consent. |
|
Reports |
Description |
Price (Excl GST) |
|
|
PROPERTY SUMMARY |
On Locating Address |
Automated Valuation Model Range, Title, Legal Description, Attributes, Leasehold flag |
Included |
|
|
|
|
|
|
VALUATION INFORMATION |
Rating Valuation |
Includes land value, capital value, improvement
value and revision date |
Included |
|
VALUATION INFORMATION |
iVal
(AVM) Report |
Current value using BOTH market index trends and
recent sales of comparable properties |
$18.90 |
|
VALUATION INFORMATION |
iVal
Mandarin (AVM) Report |
Current value using BOTH market index trends and
recent sales of comparable properties, displayed in Mandarin |
$18.90 |
|
VALUATION INFORMATION |
Order a deskVal |
Desktop based valuation by registered valuer |
$230.00 |
|
VALUATION INFORMATION |
Order a Full Market Valuation |
Full on-site inspection and market valuation by
registered Valuer |
P.O. A |
|
|
|
|
|
|
TITLE INFORMATION |
Certificate of Title Summary Report |
Title and registered parties to a mortgage provider |
Included |
|
TITLE INFORMATION |
Guaranteed Search |
Confirms no adverse interests exist |
$10.00 |
|
TITLE INFORMATION |
Instrument Document |
Shows interest in property |
$10.00 |
|
TITLE INFORMATION |
Survey Plan |
Defines detail of property |
$10.00 |
|
TITLE INFORMATION |
Title Plan |
Graphics representation of the property |
$10.00 |
|
|
|
|
|
|
SALES INFORMATION |
Sales History Report |
Sales history of the specific property |
Included |
|
SALES INFORMATION |
Local Sales Report |
Recent sales in the localised
area |
Included |
|
SALES INFORMATION |
Comparable Properties Sold Report |
Recent sales of Comparable Properties |
Included |
|
|
|
|
|
|
BUILDING INFORMATION |
Building Consent History Report |
History of building consents specific to property to
property |
Included |
|
|
|
|
|
|
|
Report pricing
subject to change without notice. |
|
|
|
|
|
|
|
SCHEDULE 2
ASSUMPTIONS
Valuation Report
Assumptions
1.1 Each Valuation Report is prepared on the basis
of the following assumptions:
(a)
You have provided us and the Valuation Firm or Valuer with a full
disclosure of all information in your possession and other material facts which
may affect the preparation of the Report;
(b)
That all Territorial Local Authority building codes, regulations and
by-laws have been complied with, a Code Compliance Certificate is obtained for
any construction, and that all building and other work has been completed
strictly in accordance with all relevant requirements;
(c)
The Property has no adverse or beneficial information recorded on a
property file kept by the Territorial Local Authority and Regional Authority;
(d)
There are no detrimental registration(s) affecting the Property other
than those appearing on the certificate(s) of title for the Property. The Valuation Firm will not normally
undertake investigations into detrimental registration(s) affecting the
Property unless specifically requested to do so;
(e)
The Property is stable and free from contamination (including asbestos,
other chemicals, toxic waste or other potentially hazardous materials) or in an
area that is not subject to liquefaction or likely to be subject to
liquefaction and is in an area that is not likely to be subject to other instances
of ground or sub-soil instability;
(f)
There are no easements, encumbrances or registrations (including Waahi Tapu or Historic Places
Trust registrations) other than those (if any) disclosed in the certificates(s)
of title of the Property;
(g)
There are no side agreements or arrangements in place that would have an
adverse affect on the valuation of the Property;
(h)
That if a Land Information Memorandum (LIM) or Project Information
Memorandum (PIM) has been obtained for the Property the LIM/PIM would not have
disclosed any information which would have affected the value of the Property;
and
(i)
Hot and cold water systems, electrical systems
and other devices, fitting and conveniences, are in proper working order and
functioning for the purposes for which they were designed.
1.2 The Valuation Firm (or Valuer) does not purport to provide in
respect of the Property:
(a)
A site or structural survey;
(b)
Suitably qualified professional advice in respect of building or site
contamination or the presence of “Leaky Building Syndrome” or weather tightness
issues;
(c)
Any testing or verification of the existence of the supply and operation
of water, power, phone, waste water and storm-water
disposal systems or other services and utilities unless otherwise stated;
(d)
Any boundary survey of the Property and unless otherwise stated the
Valuation Firm (or Valuer) will assume that all improvements lie within the
title boundaries;
(e)
Any environmental or geotechnical survey; or
(f)
Any view on the possible presence of archaeological sites or sites of
historical or cultural significance.
1.3 You
acknowledge and agree that where any one or more of the assumptions set out in section
1.2 of this Schedule above is not correct, neither us nor the Valuation Firm
(or Valuer) accepts any responsibility for any such incorrect assumptions.
1.4 The Valuer may state other assumptions that they have made in
performing the Valuation Services in the Report. In the event of any inconsistency between the
assumptions made above and the assumptions made in a Report, the assumptions
made in the Report will prevail to the extent of the inconsistency.
SCHEDULE 3
WARRANTIES AND SERVICE LEVELS
Valuation Warranties
1.1
Valuation Firm’s obligations: We will use reasonable endeavours to ensure
that our agreements with the Valuation Firms and Valuers contain terms that
provide the Valuation Firm or Valuer will perform all Valuation Services in
accordance with the following (listed in descending order of priority such that
in the event of a conflict between a later listed requirement and an earlier
listed requirement, the earlier listed requirement will prevail to the extent
of that inconsistency):
(a)
All Laws affecting the Valuation and the provision of Valuation Services;
(b)
Relevant best industry practice, including any standards, codes,
policies or guidelines issued by PINZ or NZIV;
(c)
Where relevant, any specific instructions issued by you (and notified to
the Valuation Firm and/or the applicable Valuer) with respect to the provision
of Valuation Services;
(d)
Any other reasonable request or direction issued by you in relation to a
Valuation, as may be notified to the Valuation Firm and/or the applicable
Valuer from time to time;
(e)
The terms of the relevant Contract; and
(f)
The requirements of the Valocity System.
1.2
Valuation Firm’s warranties: We will use reasonable
endeavours to ensure that the Valuation Firms and Valuers warrant to us and you
that:
(a)
It and its Valuers have the necessary qualifications, expertise,
experience, capacity and facilities required to perform their obligations under
each Contract;
(b)
It and its Valuers will at all times act honestly and without negligence
or misconduct and in the best interests of us and in the performance of the
Valuation Services;
(c)
It has all licences necessary to perform the Valuation Services and each
Contract;
(d)
The Valuation Services will be rendered with due care and skill and that
any materials supplied in connection with a Valuation will be reasonably fit
for the purposes for which they are supplied;
(e)
In performing the Valuation Services, the Valuation Firm will not breach
an obligation owed to another person, or infringe any Intellectual Property of
another person;
(f)
It will use the data it holds (not otherwise subject to separate
obligations of confidentiality) in respect of any property in the supply of the
Valuation Services;
(g)
It will not act in any manner which could disrupt or adversely affect
the Valocity System;
(h)
All works created by the Valuation Firm and its Valuers and all
Intellectual Property rights in such works will be owned or adequately licensed
by the Valuation Firm and will be capable of being transferred to the Valocity
System.
Our Warranties
1.3
Our obligations: We will perform all In-house Services in
accordance with:
(a)
Relevant best industry practice;
(b)
The requirements of the Valocity System;
(c)
All Laws affecting the In-house Services;
(d)
Any other reasonable request or direction issued by you in relation to
the In-house Services, as may be notified to us from time to time;
(e)
Where relevant, any specific instructions issued by you (and notified to
us) with respect to the provision of In-house Services; and
(f)
The terms of the relevant Contract.
1.4
Our warranties: We warrant to you that:
(a)
We have the necessary expertise, experience, capacity and facilities
required to perform our obligations under each Contract;
(b)
We will at all times act honestly and without negligence or misconduct
in the performance of the In-house Services;
(c)
We have all licences necessary to perform the In-house Services and each
Contract;
(d)
The In-house Services will be rendered with due care and skill and that
any materials supplied in connection with the Services will be reasonably fit
for the purposes for which they are supplied;
(e)
In performing the In-house Services, the we
will not breach an obligation owed to another person, or infringe any
Intellectual Property of another person;
(f)
All works created by us and all Intellectual Property rights in such
works will be owned or adequately licensed by us and will be capable of being
transferred to the Valocity System.
Service Levels
The
following service levels will apply to all Valuation Services.
1.5
You, via the Valocity System, will be supplied with a timeframe for
completing each Report at the time the Valuation Request is made.
Standard
Timeframes
1.6
The standard Service Level times for completion of a Valuation Report
are:
(a) For properties in a Metropolitan area: 4 Business Days; and
(b) For properties in a Remote area: 7 Business Days,
provided that:
(a)
The time period will start when you input the Valuation Request into the
Valocity System, the valuation fee is paid for by the Bank or Client (as
applicable) or the Valuation Request is accepted by the Valuation Firm to whom
the order is assigned, and ends when the Valuation
Firm uploads the completed Valuation Report via the Valocity System.
(b)
The Valocity System enables a Valuation Firm to input a
"Delay" where there is some factor outside the Valuation Firm's
control or further due diligence is required that does not enable the Valuation
Firm to continue with the Valuation (e.g. inspection
of property can't be arranged for x days; awaiting plans and specifications).
By inputting a Delay you are notified of the delay in
the Valuation Services. When a Delay is inputted the "Service Level
clock" is effectively stopped, until the matter giving rise to the Delay
is resolved.
(c)
We will not be responsible to you or any other party for any delay in
the delivery of a Report.
1.7
The standard Service Level response times to Valuation Requests are 2
Business Hours of the Valuer/Valuation Firm being notified by the System of the
Valuation Request.
1.8
The standard Service Level response times queries is 1 Business Day from
the time and date of the query request.
1.9
The standard Service Level response times for informing the property
owner of the inspection date is 1 Business Day from the System issuing the
Valuation Request.
1.10
The standard Service Level response times for resolving a conflict of
interest is 4 Business Hours from the Valuer/Valuation Firm being notified by
the System of the Valuation Request.
Urgent Requests
1.11
If you request an Urgent Report, we will use our reasonable endeavours
to procure that the Valuation Firm endeavours to deliver the Urgent Report
within 2 Business Days of the request being accepted (or such other timeframe
as you agree with us).
SCHEDULE 4
FURTHER TERMS OF USE
1.1 You acknowledges and agree that:
(a) All
right, title and interest in the Licensed Data is the sole property of us and
the Suppliers (as relevant) and you will not, at any time, in any way question
or dispute the ownership by us and the Suppliers (as relevant) of the Licensed
Data or anything derived from the Licensed Data;
(b) You will only use the Licensed Data for the Purpose and not for any
other purpose;
(c) Any modification, adaptation or alteration of the Licensed Data remains
the property of us and the Suppliers (as relevant) in all respects, whether
modified by you or any other party and whether or not such modification,
adaptation or alteration is authorised pursuant to these Terms;
(d) You
will not at any time do or suffer to be done any act or thing which may in any
way impair the rights of us and the Suppliers (as relevant) in the Licensed
Data, nor will you contest or challenge the validity of the whole or any part
of the Licensed Data;
(e) You
will promptly notify us if you become aware of any actual or possible
infringement of the whole or any part of the Licensed Data. We will have the sole right at our discretion
to take any action we consider appropriate in the circumstances in respect of
such infringement and you will provide all such
reasonable assistance as we may request in respect of such action;
(f)
You shall have no proprietary rights to the
Licensed Data. No title in the Licensed Data vests in you as a result of the
Licence under these Terms;
(g) You shall use reasonable endeavours to ensure the Licensed Data is
protected at all times from unauthorised use or access by third parties;
(h) You will not make any representation or misstatement about the Licensed
Data, its functionality or accuracy or give any warranties, guarantees, or
other representations that are in any way inconsistent with these Terms;
(i)
To the fullest extent
permitted by law, all warranties (including any implied warranties of merchantability or fitness for purpose) with respect to the Licensed Data (whether
express or implied) are excluded. Without limiting the foregoing, you
acknowledge and agree that the Licensed Data is licensed to you on an ‘as is’
basis and that neither the Suppliers (as relevant) nor us warrant that the
Licensed Data is free from errors or omissions. In addition, there is no
warranty that the supply of the Licensed Data will be timely, immediate or uninterrupted;
(j)
You will not sell, licence, offer for sale, or
otherwise part with possession of the Licensed Data;
(k) You shall take all reasonable security precautions to protect the Licensed Data.
We source and license data from multiple sources.
In the instances where the following data form part of the Licensed Data you
acknowledge and agree that the following terms also apply:
The Headway Data:
(l)
You will not make any
unauthorised representation warranty, or guarantees on behalf of Headway
Systems Limited under these Terms or in connection with the Headway Data;
The Auckland Council Data:
(m) The
Auckland Council Data may contain data and information that is sourced from
councils, regional councils and other local authorities’ bodies;
(n) You shall not remove any proprietary notices incorporated in or on the
Auckland Council Data;
1.2 You acknowledge and agree that all readdressing of a completed valuation
report to another lender will be made upon request to Valocity.