SELL DIRECT REAL ESTATE LIMITED – TERMS OF TRADE
Agreement means these terms of trade.
Company means Sell Direct Real Estate Limited.
Customer means the person or entity placing an Order with the Company.
Goods means goods supplied or to be supplied by the Company to the Customer.
Listing means the electronic listing of the Property on the Website or on a third party website(s).
Order means the order placed by the Customer for Goods and Services.
Price means the price for the Goods and Services as specified by the Company at the time of Order.
Property means the property in respect of which the Goods and Services are being provided.
Purchaser means the person or entity purchasing the Property.
Services means the services provided or to be provided to the Customer by the Company or any third party contracted by the Company.
Vendor means the person or entity selling the Property.
Website means the Company’s website located at www.Selldirect.co.nz.
Unless otherwise agreed in writing by the parties, this Agreement will apply to all Goods and Services ordered by and supplied to the Customer.
The Customer agrees to engage the Company to provide the Goods and Services for the Price plus any additional charges that the Customer agrees to from time to time. The Company agrees to provide such Goods and Services in accordance with this Agreement.
ORDER AND PAYMENT
The Customer shall place an Order for the Goods and Services via the Website. The Customer agrees that the Price includes GST, and plus any other taxes and duties which may be applicable. Payment shall be made to the Company by credit card at the time of Order. The Customer agrees and acknowledge that the Price is non-refundable irrespective of the outcome of any Property transaction.
In the event the Customer wishes to change the Order, the Customer must notify the Company within 3 working days of the original Order. The Company is under no obligation to agree to such changes if outside of such timeframe. Any changes to an Order may be subject to an additional payment.
Any Listing in respect of a Property:
- Shall (unless otherwise agreed between the parties) only exist for the duration specified by the Company (if any) at the time of Order. If no duration is specified, the Listing will exist until the Customer notifies the Company to remove the Listing, or the Company otherwise removes the Listing pursuant to this Agreement.
- Will be at all times subject to the terms and conditions of use of the Website or third party website on which it is listed (as applicable).
- May be amended or otherwise withdrawn if the Company in its reasonable opinion believes that one or more of the warranties provided by the Customer under this Agreement in respect of the Property has been breached, or the Company otherwise holds reasonable concerns in respect of the Listing.
- Shall be removed on receipt of notification from the Customer that the Property is no longer for sale.
The Customer agrees and acknowledges that the Company:
- Is a marketing company and is not a real estate agency, conveyancer, lawyer, conveyancing practitioner or land broker under the Lawyers and Conveyancers Act 2006.
- Is not a real estate agent or otherwise registered or licensed with or by the Real Estate Agents Authority.
- Does not collect commission or any payment in respect of a successful Property transaction.
- Does not represent either the Vendor or Purchaser of a Property.
- Is not a party to any negotiations, arrangement, contract, agreement, sale or transaction in respect of the Property.
- May use third parties to provide the Goods and Services to the Customer.
The Company can arrange negotiation services if required by the Customer. Negotiation services are regulated by the Real Estate Agents Act 2008. As a result, if the Customer wishes to proceed with negotiation services, the Customer acknowledges as follows:
- The negotiation services are provided by a separate company, called Atomo Properties Limited or Emphasis Real Estate Limited, who is licensed pursuant to the REAA 2008 and is related to the Company. The Company does not provide this service.
- Negotiation services are subject to separate terms and conditions, which can be provided by the Company on request.
- Negotiation services will be conducted by a licensed salesperson pursuant to the Real Estate Agents Act 2008.
The Customer shall:
- Ensure that all data and/or information supplied to the Company at the time of the Order is valid, up to date, accurate and complete.
- Inform the Company in writing of any changes to the details in respect of the Property that may be contained within a Listing or other Goods supplied by the Company in respect of the Property.
- Inform the Company in writing in the event the Property is no longer for sale.
- Satisfy itself as to the capacity of any third party in respect of any transaction or proposed transaction in respect of the Property.
The Customer warrants to the Company that:
- It is the registered proprietor of the Property and has the legal authority to offer for sale and to sell the Property or otherwise has the legal authority to offer for sale and to sell the Property.
- The Customer will not seek to involve the Company in any dispute, or dispute resolution process which arises as a result of the Customer’s use of the Goods and Services and/or in respect of the Property.
LIMITATION OF LIABILITY
The Customer acknowledges that any rights the Customer has under the Consumer Guarantees Act 1993 or Fair Trading Act 1986 are not affected by the Company’s limitations of liability set out in this section. This section also does not affect the Customer’s rights under the Fair Trading Act 1986. The Customer may have other rights in addition to those set out in the Consumer Guarantees Act 1993 or Fair Trading Act 1986, however such other rights are subject to the limitations of liability set out in this section. If the Customer acquires the Goods and/or Services from the Company for the purposes of a business, the Consumer Guarantees Act 1993 does not apply.
The Company will only be liable to the Customer in contract, tort (including negligence) or otherwise for reasonably foreseeable loss or damage that the Customer may suffer directly as a result of the Company’s breach of this Agreement or negligence, and that is not caused by something beyond the Company’s control. The Company won’t be liable to the Customer for any other loss or damage including indirect or consequential losses, loss of profits or revenue, loss of bargain or similar.
If the Company is liable to the Customer under the above paragraph, the maximum amount the Company will pay as compensation for the Customer’s loss is, in aggregate, the Price. The Company may choose to replace or repair any damaged property or Goods, up to the same maximum amount, instead of paying cash. This limitation doesn’t apply in relation to the Company’s deliberate or wilful conduct.
If the Customer is liable to the Company, the maximum amount the Customer will pay the Company as compensation for the Company’s loss is in aggregate, the Price. This limitation doesn’t apply in relation to the Customer’s deliberate or wilful conduct or to any charges payable by the Customer under this Agreement.
The Company does not give any guarantee, warranty or representation of any sort (in addition to that set out in the Consumer Guarantees Act 1993 where it applies) as to:
- The likelihood or otherwise of a Property sale as a result of purchasing the Goods and Services.
- The outcome of any Listing.
- The suitability, legality or otherwise of any proposed transaction in respect of the Property, or the information provided in respect of the Property.
- The outcome of any Property negotiation, agreement, transaction or sale between the Customer and a potential Purchaser.
- The number, extent of, or legitimacy of any inquiries in respect of the Property as a result of the provision of the Goods and Services including but not limited to the Listing.
- The provision of any goods or services by third parties referred by the Company to the Customer.
- Any third party website used in respect of a Listing being secure or having continuous, uninterrupted, timely or secure or that it will be free from any malfunctions or other failures.
In the event of a dispute in relation to this Agreement or any other matter, the parties shall give written notice to the other of the particulars of the dispute and co-operatively endeavour to resolve the dispute. If the dispute remains unresolved, a party may take legal action to resolve the dispute. Nothing in this clause prevents either party from seeking interlocutory or injunctive relief.
Information belonging to a party which by its nature is intended to be treated as confidential will be confidential information for the purposes of this Agreement. Each party agrees not to use or disclose any confidential information of the other party except to fulfil its obligations under this Agreement, or if required to disclose such by law.
If the Customer is an individual, they have rights under the Privacy Act 1993 to access information held by the Company, and to request the correction of such personal information. In respect of such personal information, the Customer authorises the Company to:
- Use the personal information for the purposes of direct marketing and promotional activities, research and development purposes, identity verification, and otherwise in respect of the provision of the Goods and Services to the Customer.
- Provide the personal information to third parties for the purposes of creating the Listing, to a third party seeking to contact the Customer in respect of a Listing, and/or otherwise to enable the Company to provide the Goods and Services under this Agreement.
The Customer agrees and acknowledges that the Company (or a third party where applicable) owns the intellectual property rights in the Goods and unless expressly provided for in this Agreement nothing gives the Customer any right, title, or interest in such intellectual property. The Company grants to the Customer a non-exclusive, non-transferrable licence to use the intellectual property in the Goods for the sole purpose of marketing and advertising the Property for sale.
The Customer must not do anything to damage or otherwise endanger the Company’s (or a third party’s) intellectual property rights in such Goods. The Customer may not, unless otherwise agreed, reproduce, translate, adapt, vary, decompile, modify or disseminate such intellectual property to any third party or do anything to damage or otherwise endanger our intellectual property rights.
If the Customer discovers any improvements to the Goods the Customer must provide the details of such improvements to the Company and do all things reasonably necessary to ensure that the intellectual property in such improvement and the right to obtain any relevant protection belongs to the Company.
No failure or omission by a party to carry out or observe any of the terms of this Agreement will give rise to any claim against that party or be deemed a breach of this Agreement, if such failure or omission arises from any cause reasonably beyond the control of that party.
Either party may terminate this Agreement at any time and for any reason by providing 7 days written notice to the other. Written notice can be made via email from the Company to the Customer. Email notification can be made to the Company at firstname.lastname@example.org.
Termination of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive termination including without limitation the rights and obligations under the limitation of liability, intellectual property and indemnification clauses.
On termination the Company shall remove the Listing.
The Customer agrees and acknowledges that:
- Any variation to this Agreement shall be in writing and signed by the parties.
- This Agreement is governed by the laws of New Zealand.
- No party will assign or otherwise transfer or encumber their rights or obligations under this Agreement without the prior written consent of the other party.
- A party will not have waived or be deemed to have waived any provision of this Agreement unless the waiver is in writing and signed by that party.
- This Agreement does not create any relationship of partnership, agency, employment or joint venture between the parties.
- If any provision of this Agreement is found to be illegal, invalid or unenforceable, that provision shall be read down to the extent necessary and reasonable in all circumstances to give it valid operation. If it cannot be so read down, that provision will be void and severable and the remaining provisions will not in any way be affected or impaired.