(Version 1.0 December 2018)

Introduction

• 1.1 Agent Review is a Web Portal operated by Utogi Ltd (New Zealand company number 5943535) by which visitors (Consumers) may provide Reviews on individual Real Estate Agents and Real Estate Agencies listed on the Site. (Agents)
• 1.2 Consumers and Agents may purchase goods and services which Utogi offer through the Site (Products)
• 1.3 Utogi will permit you to use the Site and the Services, and purchase Products through the Site in accordance with the Terms and Conditions set out below (this Agreement). This Agreement is made between you (Consumers and Agents) (you or your) and Utogi (we, us or our). If you are agreeing to this Agreement not as an individual but on behalf of your real estate agency branch or business, then you or your means your real estate agency branch or business.
• 1.4 By clicking on [I agree / I accept the terms], or by using the Site without creating an account you indicate your assent to be bound by this Agreement. If you do not agree to the terms in this Agreement you must immediately discontinue its use.
• 1.5 We may (at our sole discretion) make changes to the Agreement at any time without notice.

Definitions and Interpretation

• 2.1 Definitions: In this Agreement the below are definitions for interpretation, unless the context otherwise requires:

  Authorised User means a user affiliated with you who is authorised by us to access and use the Services.

  Business Day means any day (other than a Saturday, Sunday, public holiday or any day during the period of 24 December to 5 January (inclusive)) on which registered banks in Auckland, New Zealand, are open for general banking business.

  Business Hour means any hour between 8.30am and 5pm during a Business Day.

  Documentation means the proprietary documentation and materials that is made available by us to you for use with the WA, including any online documentation and materials.

  Fees means the fees payable by you to us under this Agreement as set out in the WA, and as may otherwise be varied by the parties in writing from time to time.

  Force Majeure Event means any event beyond the reasonable control of a party, including strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

  Improvement means any improvement, modification or addition.

  Intellectual Property Rights means all intellectual property rights throughout the world, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how, and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application or as further defined in this agreement.

  Agent Review means our Review Request and Marketing solution currently known as Agent Review

  Consumer Review means an assessment of your service provided by a Consumer using the Agent Review Web Application or any imported Review by you.

  Personal Information has the meaning given to that term in the Privacy Act 1993.

  Plans means the subscription plans (or any one of them, if the context requires) set out in the WA.

  Web Application (WA) means the Agent Review website application.

  Representatives means a party’s employees, officers, representatives and advisers.

  Sales Tax means good and services tax or any other applicable sales tax.

  System means the software, solutions, systems and networks used by us to provide the Services, including any third party solutions, systems and networks. 

  Term means the period from the Commencement Date up to and including the date of termination of this Agreement.

  Update means a minor version update or patch to the WA.

  Upgrade means a major version upgrade of the WA.

  Your Data means the data, information and content belonging to you (including any Personal Information) that is accessed by, or provided to, us under or in connection with this Agreement.

2.2 In this Agreement unless the context otherwise requires:

(a) Reference to dates and times are references to dates and times in New Zealand, unless otherwise specified.

(b) Reference to any party includes that party’s successors and permitted assigns.

(c) Words importing the singular include the plural (and vice versa).

(d) Headings are for convenience only and do not affect interpretation.

(e) The word person includes a natural person and any body or entity whether incorporated or not.

(f) Any words following the terms including or include, in particular, for example, or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.

(g) A reference to a law is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that law.

(h) A reference to $ or dollars is a reference to the lawful currency of New Zealand and, unless otherwise specified, all amounts payable by a party under this Agreement are to be paid in that currency.

Services

• 3.1 Utogi will provide you with the following goods and services (Services) subject to the terms and conditions of this Agreement.

  (a) The ability for Agents to create an Account on the Site and use the Account for requesting Consumer Reviews

  (b) The ability for Consumers to search Agents on the Site, view Agent profiles and provide Consumer Reviews upon a request by Agents.

  (c) The ability for Agents to purchase Products through the site offered by Utogi.

• 3.2 Non-exclusive: The supply of the Services by us to you under this Agreement is non-exclusive. Nothing in this Agreement will prevent or restrict us from providing the Services, or any similar services, to any other customer.
• 3.3 You agree that Utogi may modify Services at any time including adding, discontinuing or suspending al Services (or Reinstating Services) at Utogi’s sole discretion.

Creating an Account on Agent Review

• 4.1 Utogi will require Agents to create an online account (Account) in order to use the Services. Consumers may not be required to create an Account in order to use the Services.
• 4.2 If you create an Account on Agent Review, you agree/warrant:

  (a) That you have the authority to create an Account as or on behalf of an Agent

  (b) To Utogi publicly advertising your profile on the Site including providing Utogi with an irrevocable License to advertise your Profile on the Agent Review Site, including all Consumer Reviews, Properties for sale and sold (including text, videos, images, floor plans) and warrant that you are authorized to grant such a license.

  (c) To ensure that only Authorised Users access or use the Services

  (d) Manage, and be responsible at all times for the use of the Services by the Authorised Users and other relevant personnel.

• 4.3 You acknowledge that Utogi may disable or delete your Account and Profile at any time at its sole discretion for any reason whatsoever.
• 4.4 As an Agent, you may terminate your use of the Service at any time by disabling or deleting your Account.

Agents

• 5.1 Agents profiles will only be displayed on the Site if an Account has been created by the Agent.
• 5.2 Utogi make no warranties about the accuracy of information on the Site obtained by Third Parties
• 5.3 Utogi at it’s sole discretion will determine the functionality provided to the Agent to allow them to update and manage their profile. 
• 5.4 Agents will not be able to modify Consumer Reviews once the review is requested

Consumers

• 6.1 Consumers will have functionality including:

  (a) the ability for Consumers to search Agents on the Site, view Agent profiles and provide Consumer Reviews upon a request by Agents.

• 6.2 You agree that you will only provide honest commentary and reviews that are based on your own personal experience in dealing with the Agent.

Prohibited use

• 7.1 The User Content and all other content on the Site including photos, Consumer Reviews, Graphics, Software, Infrastructure etc is proprietary to Utogi. You agree not to modify, copy, distribute, display, reproduce, license, transfer, sell or re-sell any Product or Service obtained through the Site.
• 7.2 You also agree:
  • (a) To only use the Services for the intended business purposes and in accordance with the terms of this Agreement
  • (b) Not to use the Services for any illegal or harmful purposes;
  • (c) Not to use the Services in any way that could adversely affect the performance of the System;
  • (d) Not to use the Services in any way that could damage the reputation and goodwill of us or Agent Review, or our business;
  • (e) Except as expressly permitted by this Agreement and to the maximum extent permitted by law:
    • (i) not to reproduce, modify or adapt the WA or create any derivative works based upon the WA;
    • (ii) not to decompile, disassemble or otherwise reverse engineer the WA or permit any third party to do so; and
  • (f) Not to modify or remove our (or any other) copyright or proprietary notices on the WA

Payment

• 8.1 Fees: During the Term:
  • (a) you will pay the Fees to us in accordance with the terms of this Agreement, and which correspond to the Plan to which you subscribe within the WA at the relevant time;
  • (b) unless otherwise agreed in writing by the parties, all amounts payable under this Agreement will be payable in New Zealand dollars; and
  • (c) the Fees exclude any Sales Tax (if applicable), which you will pay on taxable supplies under this Agreement.
• 8.2 Free Trial (if any)
  • (a) An offer for trial period entitles you to trial the corresponding plan for the period described in the Web Application from the moment you activate the trial period by submitting your payment details.
  • (b) If you decide that you do not want to become a paying subscriber of the corresponding plan, you must terminate your account by the end of the trial period. 
  • (c) You may only use the trial period once.
  • (d) We reserve the right at our absolute discretion to withdraw, or to modify the Free Trial Offer at any time without prior notice and with no liability.
• 8.3 Fee increases:
  • (a) During the Term, we may increase the Fees at any time by giving to you:
  • for annual subscriptions, not less than one months’ written notice of the increase prior to the expiry of the then current annual subscription; and
  • for monthly subscriptions, not less than one months’ prior written notice of the increase.
  • (b) We will notify you of any increase to the Fees by email or within the WA.
• 8.4 Payment Terms: During the Term and unless otherwise set out in this Agreement, you will pay the Fees without set off or deduction and by a direct transfer to our nominated bank account or through our provided payment gateway:
  • (a) annually in advance for annual subscriptions; and
  • (b) monthly in advance for monthly subscriptions.
• 8.5 Overdue Amounts: If you have not paid an invoice in full by the due date for payment, we may charge interest on any unpaid amount from that date until the date of payment, to be calculated on a daily basis at a rate equal to the corporate overdraft reference rate of our principal bank at the payment date, plus 3% per annum.

Intellectual Property & Content supplied to the site

• 9.1 Ownership: The parties acknowledge and agree that:

  (a) Utogi will be the owner of all Intellectual Property Rights for all content which you submit to the Site, including Consumer Reviews, Commentary, Ideas, Concepts, Methodologies, Processes and Know How that are used, developed or created in the course of providing the Services (User Content). You hereby grant us a perpetual, irrevocable, transferable, sub-licensable, royalty free, world-wide license to fully exploit such User Content for any and all purposes.

• 9.2 Prohibited User Content: You agree that you will not post, upload or transmit to the Site any of the following (Prohibited Content):
  • (a) User Content that may infringe the Intellectual Property Rights of any person or entity.
  • (b) User Content that may misrepresent your relationship with Utogi or any other person.
  • (c) User Content that may impersonate any person or entity.
  • (d) User Content that can reasonably be considered unlawful, racist, pornographic, indecent, abusive, harassing, fraudulent, inflammatory, invasive of privacy, or promotional of such things, or objectionable in any other way.
  • (e) User Content that would reasonably be considered SPAM;
  • (f) User Content unrelated to the Site.
  • (g) User Content that contains viruses, malware or other malicious software or data.
• 9.3 Confidentiality: You agree that:
  • (a) User Content is not confidential
  • (b) You are solely responsible for the User Content you post on the Site
  • (c) Utogi will at it’s sole discretion determine how User Content is displayed on the Site or distributed to Third Parties
  • (d) Utogi may modify any User Content at it’s sole discretion at any time.
• 9.4 Liability for User Content: Utogi will have no responsibility or liability for any User Content or Prohibited Content stored or uploaded to the Site, or any loss or damage suffered by you or any other person as a result of Utogi making available any User Content or Prohibited Content to any member of the public. Furthermore:
  • (a) Utogi is under no obligation to review User Content or Prohibited Content or to determine the nature of such Content.
  • (b) If you have any complaints or objections to User Content on the Site, you may contact us and request for the content to be removed from the Site. Utogi is under no obligation to remove such content.
  • (c) If Utogi does remove any content at your request, you agree to release Utogi from any action, claim, proceedings, damage, or any other obligation which you intend to make a claim against Utogi, it’s agent, employees, directors.
• 9.5 No Adverse Acts: you will not directly or indirectly do anything to invalidate or adversely affect the Utogi’s Intellectual Property Rights.
• 9.6 Licences:
  • (a) we grant to you non-exclusive, non-transferable licence to use the WA during the Term for its business purposes in accordance with the terms of this Agreement. 
  • (b) during the term of the Agreement, Agents only (not Consumers) are entitled to use Agent Reviews promotional material in accordance with the ‘Use of Agent Review Promotional Material Guide’ (Guide) and this Agreement unless otherwise notified to you by us. The Guide contains further information about the domains you may use the promotional material. If the promotional domain is not mentioned in the Guide, you must obtain written consent from us first. It is at our sole discretion whether we approve the use of our promotional material.
  • (c) you grant to us a non-exclusive, royalty-free, worldwide, non-transferable licence to use your name/company name, logo and any other of your Intellectual Property during the Term to perform our obligations under this Agreement.

Authorisations

• 10.1 Authorisations and Access:
  • (a) you agree to have obtained all authorisations, approvals and consents required for us to access and use Your Data and your Consumer Reviews (including imported reviews) in accordance with this Agreement (Authorisations), including any Authorisations required from individuals and Consumers to enable us to request, collect, hold, use, advertise and process any Personal Information and Consumer Reviews under this Agreement.
• 10.2 Indemnity: You will indemnify us against any loss, damages, costs or expenses arising from any claim or alleged claim by a third party that Your Data infringes the rights (including the Intellectual Property Rights) of that third party, or arising from any failure by you to obtain any Authorisations.
• 10.3 International Data Storage/Transfer: You acknowledge and agree that we may transfer and store Your Data (including any Personal Information) to, from and in secure servers outside of New Zealand (including in Singapore), and may access Your Data (including any Personal Information) within and outside of New Zealand (including in Singapore) from time to time.

Confidential Information

• 11.1 Disclosure Required by Law: The receiving party may disclose Confidential Information to the extent that it is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the disclosing party as much notice of disclosure as possible.

Warranties

• 12.1 Reciprocal Warranties: Each party warrants to the other party that:
• (a) it has the power and authority to enter into, and comply with its obligations under, this Agreement; and
• (b) its obligations under this Agreement are valid, binding and enforceable in accordance with its terms.
• 12.2 No Implied Warranties: To the maximum extent permitted by law, our warranties are limited to those set out in this Agreement and all other warranties, guarantees and representations are expressly excluded.
• 12.3 Exclusions:
• (a) We do not warrant that the use of the WA or Services will be uninterrupted.
• (b) We do not warrant that the WA or Services will meet your requirements.
• (c) You acknowledge and agree that the Services rely on the accuracy, completeness and currency of third party information, and that such information may not always be accurate, complete or up-to-date. We do not give any warranties or representations regarding the accuracy, completeness or currency of such information.

Liability

• 13.1 Limitation of Liability: Notwithstanding any other term of this Agreement, our total aggregate liability for all claims relating to this Agreement is limited to the Fees paid under this Agreement in the 12 consecutive months immediately preceding the event or occurrence giving rise to the claim. If you have not paid any money to Utogi, then the maximum liability of Utogi will be $10.00

13.2 Exclusion of Liability: Nothing expressed or implied in this Agreement will confer any liability on Utogi in respect of any loss of data, interruption of business or any indirect, consequential or special loss, damage, cost or expense suffered or incurred as a direct or indirect result of a breach by Utogi of any of its obligations under this Agreement.

• 13.3 No Exclusion or Limitation: The limitations and exclusions of liability under clauses 11.1 and 11.2 of these General Terms do not apply to limit or exclude a party’s liability under or in connection with this Agreement for:
• (a) personal injury or death; or
• (b) fraud or wilful misconduct.
• 13.4 Loss Mitigation: Utogi’s liability for any claim relating to this Agreement will be reduced to the extent that the you contributed to the loss arising from the claim.

14. Dispute Resolution

• 14.1 If a dispute arises under or in connection with this Agreement, either party may give a written notice to the other party detailing the subject matter of the dispute (Notice) and requiring the parties to meet (in person or otherwise) within 10 Business Days from the date of the Notice (Dispute Meeting).
• 14.2 At the Dispute Meeting, the parties will use reasonable endeavours to resolve the dispute, but failing any such resolution, the parties will attempt to determine whether the dispute can be resolved by informal dispute resolution means (including negotiation, mediation, independent expert determination, or any other alternative dispute resolution means), with the rules governing any such means to be agreed in writing by the parties.
• 14.3 Nothing in this clause 13 will preclude either party from taking immediate steps to seek urgent equitable relief before a court.

Notices

• 15.1 Form and Method: Unless otherwise expressly provided for in this Agreement, any notice under this Agreement:
• will be in writing and signed by or on behalf of the sender;
• may be delivered personally, sent by pre-paid mail, transmitted by email or by notice on this Site;
• 15.2 Time of Receipt: A notice given to a party in accordance with this clause is taken as having been given and received:
  • (a) if delivered personally or notified on the Site, on the day of delivery or upload;
  • (b) if sent by pre-paid mail to an address in the same country, on the third Business Day after posting;
  • (c) if transmitted by email, unless the party sending the email knows or reasonably ought to suspect that the email was not effectively delivered, on or around the time at which the email was dispatched,

  but if the notice is received (or taken to have been received) after 5pm in the place of receipt or on a non-Business Day, the notice is taken to have been received at 9am on the next Business Day.

Force Majeure

• 16.1 Neither party will be liable to the other party for any act, omission or failure under this Agreement (Act) to the extent that the Act is caused by a Force Majeure Event.
• 16.2 If a party is prevented from performing its obligations under this Agreement due to a Force Majeure Event, it will notify the other party accordingly and each party will use its reasonable endeavours to perform its obligations as required under this Agreement.

General

• 17.1 Assignment: Neither party may assign, novate or otherwise transfer any of its rights or obligations under this Agreement except with the prior written consent of the other party.
• 17.2 Subcontractors: We may subcontract a third party to provide the Services to you under this Agreement, provided that it will at all times remain primarily liable to you for the performance of the subcontractor’s obligations.
• 17.3 Entire Agreement: This Agreement constitutes the entire agreement of the parties in relation to its subject matter and supersedes any previous agreements, understandings and negotiations in relation to its subject matter.
• 17.4 Waiver: Any waiver by a party of any of its rights or remedies under this Agreement will be effective only if recorded in writing and signed by a duly authorised representative of that party. If the waiver relates to a breach of any provision of this Agreement, this will not (unless stated otherwise) operate as a waiver of any other breach of that provision.
• 17.5 Partial Invalidity: If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
• 17.6 Injunctive Relief: The parties acknowledge that damages may not be a sufficient remedy for breach of this Agreement and a party is entitled to specific performance or injunctive relieve (as appropriate) as a remedy for any breach or threatened breach, in addition to any other remedies available at law or in equity.
• 17.7 Counterparts: This Agreement may be executed in any number of counterparts including scanned copies. All counterparts together will be taken to constitute one instrument.
• 17.8 Governing law and jurisdiction:  This Agreement will be governed by the law of New Zealand, and the parties submit to the exclusive jurisdiction of the courts of New Zealand.

Use of Agent Review Promotional Material Guide

Agents with accounts may use the Agent Review logo and stars on the following property promotional material:

• Letterbox promotional material
• Billboards
• Email promotional material
• Social Media Marketing (no auto stream)
• For sale signs
• Agent information packs

Restricted Use

Restricted Use means that the Promotional Material that can only be used with a paid upgrade on your account:

• Social Media “Tab” for automated stream of Reviews on Facebook (Silver Only)
• Displaying the Agent Review logo and Consumer Reviews on your website (Gold only)