These Terms are binding on any use of the Software and apply to you from the time
that OSL provides you with access to the Software.
The OSL Application has evolved over time based on user feedback. These Terms are
not intended to answer every question or address every issue raised by the use of
the OSL Software. OSL reserves the right to change these terms at any time, effective
upon the posting of modified terms and OSL will make every effort to communicate
these changes to you via email or notification via the website. It is likely the
terms of use will change over time. It is your obligation to ensure that you have
read, understood and agree to the most recent terms available on the Website.
The parties agree as follows:
1) INTERPRETATION
In this agreement, the following words and expressions shall have the following
meanings:
'Data' means all of The Client’s real estate information that has been entered
into the database using the services provided by OSL.
'Fee' means the fee payable by The Client for the use and support of the
services.
'Installation' means installation enabling access to the software and setup
of the Clients account.
'Images' means all of The Client’s property images that have been entered
into the database using the services provided by The Client.
'New Release'means any improved version of the software made generally available,
which has materially different or improved functions to the current release of the
software modules and which is made available from OSL from time to time.
'OSL'means Online Solutions Limited and includes its successors and/or permitted
assigns.
'PDF Files'means means all of The Client’s reports that have been created
by the client and stored in the system in a PDF file format.
'Persons'words importing persons shall also include firms, companies, corporations,
unincorporated bodies and organisations constituted or refurbished by statutes.
'Per seat'means any computer, laptop or hand held device that has had the
means to access and execute the software installed.
'Schedule of Fees'the schedule of fees outlines the various charges for the
subscription services provided in this agreement.
'OSL Services'means the services and includes the computer programs developed
for the real estate industry, together with associated web sites and user manuals
and software documentation and includes any upgrades or new releases of the software
and or web sites.
'Software'means any real estate computer software developed by and supplied
to the client by OSL. Including but not limited to OSL Office and OSL Web.
'Software Upgrade'means minor upgrades or improvements to the software but
which are not so material as to constitute a new release.
'System Maintenance'means ongoing maintenance by OSL to maintain the current
functionality of the software.
'The Client'includes any employee of the company or real estate employee
of the company.
2) SERVICE
On the continued payment of the fees. OSL grants and The Client accepts a non-transferable
agreement to access to the OSL services.
3) FEES
a) In consideration for the service The Client agrees to pay the monthly Subscription
Fee as set out in the schedule of fees.
b) The Subscription Fees are payable on the 1st day of each month for the current
month.
c) The Subscription Fees may be reviewed from time to time, provided that a notice
period of one calendar month will apply to any increase in the monthly Subscription
Fees.
d) If any Subscription Fees during the course of this agreement become overdue then
OSL may restrict The Clients’ access to any services provided by OSL until all overdue
fees are paid.
e) All Subscription Fees are quoted exclusive of GST.
4) TERM
a) The licence granted under this agreement shall continue until the agreement has
been terminated under clause 16.
5) INSTALLATION
a) OSL shall promptly enable access to the services upon execution of this Agreement
by The Client.
b) The Client agrees to pay to OSL the Installation & Set-up Fees payable as set
out in the schedule of fees.
6) TRAINING AND SUPPORT
a) When requested by The Client, OSL shall provide on-site staff training in the
use and operation of the software.
b) Training costs will be at such a fee (based on a time and attendance hourly rate)
as set out in the schedule of fees item 3.
c) OSL agrees to provide email and telephone support to The Client regarding the
running and/or functionality of the software licensed under this agreement as advised
by OSL.
7) BACKUPS
a) OSL will use its own backup procedures to back up The Client’s data on a best
endeavours basis.
b) The Client may request a copy of its data to be made available by either CD Rom
or digitally to The Client as required at the charges as set out in the schedule
of fees item 4.
i) The data described in this clause is of The Client’s own data and is supplied
in the OSL propriety format and is for back up purposes only.
8) DATA
a) The Client shall at all times during the course of this agreement be the exclusive
owner of the data, images and PDF files.
b) Any data stored by OSL is stored entirely at The Client’s risk.
c) OSL may provide a subset of The Clients data to third parties at a charge as
set out in the schedule of fees item 5.
i) If the client is a member of a Franchise Group then any data supplied under this
clause must be to an approved third party as prescribed by the Franchise group.
9) OUR COMMITTMENT TO YOU
a) We will always
i) exercise reasonable care and skill to ensure that The Client has access to the
services on a 24 hours per 7 day basis.
ii) do our best to ensure that the Services are reliable and operate free of faults
(although we do not guarantee that the Services will be continuous or fault free);
and
iii) ensure that all work that we perform in connection with the provision of the
Services is carried out by competent and suitably qualified personnel and in a professional
manner.
iv) From time to time without notice access to the services may be disrupted or
limited. During such interruption OSL shall use its best reasonable endeavours to
restore access as soon as reasonably practicable.
v) OSL does not warrant that access to the services will be available at any given
time, uninterrupted or error free as access may be subject to the temporary failure
of third party suppliers. OSL makes no claims as to the means of accessing the services
by a third party carrier, nor any claim concerning the capacity of The Client’s
local area network or computers or other means of connectivity to OSL’s network.
10) UPGRADES AND ENHANCEMENTS
a) From time to time OSL may make available upgrades to the service free of charge.
The Client agrees to accept service upgrades.
b) The Client may request an enhancement to the Service. Any enhancement that may
be undertaken on the request of The Client will be chargeable at the normal rates
applicable as at that time.
c) Any enhancement remains the property of OSL and this Agreement does not convey
title or grant any rights of ownership in the enhancement to The Client.
11) YOUR COMMITMENT TO US
a) The Client undertakes to OSL:
i) Not to attempt or permit any person to copy, reproduce, translate, adapt, vary,
modify or reverse engineer the services.
ii) Not to use the Services in any way which could interfere with or damage our
Network, any other operator’s network, or another customer’s enjoyment of our services.
b) to indemnify and hold OSL harmless for any loss or damage of whatever kind caused
to OSL, other Users, or any third party; for any claim or action which may be brought
by a third party against OSL; against civil and criminal liability in New Zealand
or any other jurisdiction connected in any way with your access to the services,
including, but not restricted to:
i) The access, use or transmission by you of information protected by copyright,
patent, trade mark or other intellectual property laws in New Zealand or any other
jurisdiction protected by international treaty; or
ii) the contribution of, or accessing of information which might contravene data
protection, personal privacy, human rights, or censorship or obscenity legislation
in New Zealand or any other jurisdiction.
iii) You acknowledge that any such use of the Services is without our knowledge,
assistance or consent. All disclaimers by, and indemnities in our favour shall survive
the termination of this Agreement.
12) COMPENSATION AND LIABILITY
a) The following is without prejudice to any rights that The Client may have at
law that cannot legally be excluded or restricted.
i) The Client acknowledges that no promise, representation, warranty or undertaking
has been made or given by OSL to any person or company on its behalf in relation
to the profitability of or any other consequences or benefits to be obtained from
the delivery or use of the services. The Client has relied upon your own skill and
judgement in deciding to use the services. Except as and to the extent provided
in this agreement, OSL will not in any circumstances be liable for any other damages
whatsoever (including, without limitation, damages for loss of business, business
interruption, loss of business information or other indirect or consequential loss)
arising out of the use or inability to use or supply or non-supply of the services.
ii) OSL’s total liability under any provision of this agreement is in any case limited
to the amount actually paid by The Client in the immediately preceding 30 day period.
13) INTELLECTUAL PROPERTY RIGHTS
a) The Client acknowledges that the software and related enhancements in connection
with the provision of the services are proprietary and confidential.
b) The Client agrees the Software in all code forms is the exclusive property of
OSL.
c) The Client agrees that it shall not, either itself or through any third party,
sell, lease, licence, sub-licence or otherwise deal with any part or parts thereof
the services provided under this agreement.
14) CONFIDENTIAL INFORMATION
The parties acknowledge that any information and material relating to the parties
that either has or acquires during the course of this agreement shall be strictly
confidential including this agreement and will only be disclosed to its employees,
to whom disclosure shall be necessary for the purpose of carrying out the obligations
of each party to this agreement.
15) TERMINATION
a) Either party may terminate this agreement by giving at least 60 days prior written
notice to the other party.
b) If The Client commits any serious breach of any term of this agreement
and (in the case of a breach capable of being remedied) fails, within 30 days after
the receipt of a request in writing from OSL so to do, to remedy the breach (such
request to contain a warning of OSL’s intention to terminate) OSL may terminate
the Licence forthwith on giving written notice.
i) Including failure to keep their account current.
c) Either party hereto may terminate the Licence forthwith upon the happening of
any of the following events:
i) The other party commits any act of bankruptcy or insolvency or a petition is
presented for the bankruptcy or winding up of the other or a resolution is passed
for the winding up of the other otherwise than for the purposes of amalgamation
or reconstruction;
ii) The other party enters a compromise or an arrangement with creditors or a receiver
or official manager of the other party or of its assets is appointed.
d) Any termination of the Licence or this agreement (howsoever occasioned) shall
not affect any accrued rights or liabilities of either party nor shall it affect
the coming into force or the continuance in force of any provision hereof which
is expressly or by implication intended to come into or continue in force on or
after such termination.
16) CONSEQUENCES OF TERMINATION
a) Any Client data may be retained by OSL for a period of 30 days after termination.
b) Data extraction. The Client may request in writing a copy of its data, images
and PDF files to be made available. Data will be supplied in a generic CSV file
format, low resolution images together with any PDF files onto a CD Rom at the fees
as per schedule of fees Item 4.
i) This fee is to be paid prior to the data extraction being made.
c) Unless The Client furnishes OSL with written instructions for retention of such
data within thirty (30) days from termination of this Agreement or unless otherwise
specifically provided OSL may, on expiry of ten (10) days written notice to The
Client destroy such data in any manner it thinks fit.
17) SURVIVAL OF CERTAIN PROVISIONS
a) The provisions of this agreement contained in clause 16 inclusive hereof shall
survive expiry or termination of this and shall remain forever effective and binding
upon the parties to this agreement.
18) NOTICES
a) Any notice given in pursuant to this agreement must be in writing and delivered,
or sent by post or by facsimile or by email, to the other party’s contact address,
as OSL, PO Box 62 509, Kalmia Street Auckland New Zealand
19) DISPUTE RESOLUTION
All disputes relating to any matter arising under this Agreement shall, with the
exception of the enforcement of any order of a mediator or arbitrator, be exclusively
determined by the process set out in this Agreement.
Mediation
a) The parties to this Agreement agree, having regard to the likely nature of any
dispute between them and the potential delays and costs which might arise as a consequence
of litigation to refer any particular matter or issue in dispute to informal mediation
by a single mediator.
b) Appointment of the Mediator – In the absence of agreement concerning the appointment
of a mediator, either party may request the President of the Institute of Chartered
Accountants to appoint a suitably qualified mediator to hear and determine the dispute.
Pending the reference to mediation and thereafter until the mediator’s decision
is made known; the parties shall continue to perform all their obligations under
this Agreement without prejudice.
c) Mediation procedures - The mediator shall conduct the mediation in accordance
with rules he shall establish and which will be agreed to by the parties prior to
the commencement of mediation. The costs of mediation will be shared equally between
OSL and The Client.
Arbitration
a) In the event that the mediator is unable to bring the parties to a settlement
the dispute will be resolved by reference to an arbitrator whose decision will be
binding.
b) Appointment of Arbitrator - In the absence of agreement concerning the appointment
of an arbitrator, either party may request the President of the Institute of Chartered
Accountants to appoint a suitably qualified arbitrator to hear and determine the
dispute. Pending the reference to arbitration and thereafter until the arbitrator’s
decision is made known; the parties shall continue to perform all their obligations
under this Agreement without prejudice. The Arbitrator shall have the power to make
an award of costs to the successful party.
20) GENERAL PROVISIONS
a) The parties acknowledge that this Agreement sets forth the entire agreement and
understanding of the parties and supersedes all prior to oral or written agreements
or arrangements relating to its subject matter.
b) Neither party shall be under any liability to the other in respect of anything
which, apart from this provision, may constitute breach of this agreement arising
by reason of force majeure, namely circumstances beyond the control of the party
at fault, which shall include (but not limited to) acts of God, flood, explosion,
sabotage, accident, embargo, riot, civil commotion, acts of local government and
parliamentary authority; breakdown of computer equipment and labour disputes of
whatever nature and for whatever cause, arising and for which it is not responsible.
c) In the event that any of these terms, conditions or provisions shall be determined
invalid, unlawful or unenforceable to any extent such term, condition or provision
shall be severed from the remaining terms conditions and provisions which shall
continue to be valid to the full extent permitted in law.
d) No failure or delay on the part of either party to this agreement in exercising
any right under this agreement will operate as a waiver thereof nor will any single
or partial exercise of any right under this agreement preclude any other or further
exercise thereof or the exercise of any other right.
e) The parties hereby agree that this agreement shall be construed in accordance
with New Zealand law.