TERMS OF USE OF VALOCITY SYSTEM FOR KIWI ADVISER NETWORK (KAN)

BACKGROUND

A.       We are the provider of the online report and ordering system known as “Valocity”.

B.       You are a member of the Kiwi Adviser Network (KAN) Group (the “Group”). We and KAN 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 KAN 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 KAN;

“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 KAN, 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 KAN, 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;

“KAN” means KAN 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 KAN;

“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 KAN 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 KAN, 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 KAN) in writing.

5.        Fees

5.1      Fees: In accordance with the fee arrangements which we have agreed with KAN, 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 KAN 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.        Liability

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 KAN 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.

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.