These Terms apply to you when you are using or accessing the PropFi Website or Services, and set out how you may use and access the Website and the Services.
PropFi offers you access and use of the Website and the Services on these Terms. By creating a User Account you are agreeing to these Terms and entering into a legally binding agreement with us.
2.1 In these Terms, the following expressions have the meanings set out below:
- Auction means an auction conducted using the Website and/or the Services.
- Auction Sale Agreement means the Particulars and Conditions of Sale of Real Estate by Auction, Fourth Edition 2012(5), published by the Real Estate Institute of New Zealand Incorporated and by the Auckland District Law Society Incorporated that relates to a Property identified in such Auction Sale Agreement, a copy of which is contained under the Auction Sale Agreement tab for that particular Property.
- Conduct of Auction Terms means the Conduct of Auction Terms contained in clauses 2.1 to 2.8 (inclusive) of the Auction Sale Agreement that is contained under the Auction Sale Agreement tab for that particular Property.
- Intellectual Property Rights means any current and future intellectual property rights whether registered or unregistered, including copyrights, design rights, trade marks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, privacy, data and databases.
- Memorandum of Contract means the Memorandum of Contract that forms part of the Auction Sale Agreement.
- PropFi, us, we, our means PropFi.NZ Limited or any of its related parties.
- Property means a property in New Zealand that is listed for sale on the Website and identified in a Property File and/or an Auction Sale Agreement.
- Property File means the digital files uploaded on to the Website by the Real Estate Agent and includes documents and information relating to a Property.
- Real Estate Agent means the real estate agent for the Vendor, who is licensed under the Real Estate Agency Act 2008.
- Registration means the registration process that must be completed by a User in accordance with the Website requirements before the User may make any offer on a Property and/or participate in an Auction, and Registered has a corresponding meaning.
- Services means any tools, applications or other services available to Users via the Website.
- Terms means these terms and conditions, and includes any amendments made in accordance with these terms and conditions.
- User means a person or other entity who is a user of the Website, and/or in respect of use of the Services, who has created a User Account.
- User Account means a User account created in accordance with the requirements of the Website by a User.
- User Content means any information, images, data, graphics, text or other material that is transmitted, emailed, posted, uploaded or otherwise made available to us by you or any User.
- User Profile means personal information relating to a User that is submitted by that User or that is collected by PropFi.
- Vendor means the person(s) or other entity named as the “vendor” on the Auction Sale Agreement for the Property.
- Verification means the process to confirm, verify and identify Users that must be completed by a User before Registration in accordance with the Website requirements, and Verified has a corresponding meaning.
- Website means any PropFi website including https://propfi.auction, and any other website, internet property or application (including any applications for mobile devices) that are owned or operated by PropFi.
- You and your is a reference to a User.
3. REGISTRATION AND ELIGIBILITY
3.1 Creating your User Account and Profile
If you wish to access and receive the Services (including accessing any Property File), you must create a User Account.
Creating a User Account is free.
You may only create a User Account if you:
- are at least 18 years old;
- provide accurate, complete and truthful information as required by the Website User Account and User Profile creation process;
- provide a valid email address and password;
- keep information that you provide to PropFi current (including but not limited to your contact details).
3.2 Your User Account security
It is your responsibility to maintain the confidentiality and security of any information that may be used to access your User Account, including your password.
Importantly, you agree that you will:
- not share your password, login information or other security related information with any other person that may allow them to access your User Account;
- not permit any other person to use or access your User Account or login information;
- notify us if there has been, or you suspect there will be any unauthorised use of your User Account; and
- only create one User Account, you will not register as a User under multiple personas (whether false or not).
3.3 Verification and Registration
In order to participate in an Auction, you must:
- have a User Account;
- provide all the information required by PropFi to complete your User Profile;
- be a Verified User (by completing the Verification process); and
- complete Registration.
If Verification is not successfully completed, you will not be permitted to Register to participate in any Auction. You will be required to Register for each Auction that you wish to participate in. If you fail Verification, or you do not Register prior to participating in an Auction, you acknowledge and confirm that PropFi may take any action necessary to restrict or terminate your User Account.
4. CONDUCT OF AUCTION TERMS
With respect to a Property that is subject to any Auction you are participating in, you acknowledge and agree that:
- the Conduct of Auction Terms are binding on you; and
- if you place a winning bid, the Real Estate Agent may sign the Memorandum of Contract on your behalf if you should fail or refuse to do so on completion of the Auction in accordance with clause 2.8 of the Conduct of Auction Terms.
5. AUCTION SALE AGREEMENT
With respect to a Property that is subject to any Auction you are participating in, you acknowledge and agree that:
- the Property is offered for sale subject to the Auction Sale Agreement contained under the Auction Sale Agreement tab;
- if you submit the winning bid, you shall:
- purchase the Property on the terms contained in the Auction Sale Agreement; and
- on completion of the Auction, either you, or an authorised person (including the Real Estate Agent under the authorisation granted pursuant to these Terms and Conditions) shall immediately sign the Memorandum of Contract as required by the Conduct of Auction Terms.
6. WEBSITE AND SERVICE USE RULES
6.1 Your obligations
The purpose of our Website and Service rules is to facilitate a safe and enjoyable experience for all Users. When you use our Website or Services, you agree that you will:
- comply at all times with New Zealand law;
- not interfere with another User’s use and enjoyment of the Services or the Website;
- not interfere with or attempt to impair our computer systems or transit software viruses, worms, other harmful files or other malware;
- not use a robot, spider, scraper or other unauthorised automated means to access the Website or the Services or any content shown on the Website; or
- not attempt to gain unauthorised access to any part of the Website or the Services, including attempting to gain access to a User Account other than yours.
7. TERMINATING YOUR USER ACCOUNT
7.1 Termination by you
You may at any time, for any reason, close your User Account.
7.2 Termination by us
We may refuse to create a User Account for you, or close your User Account and terminate, suspend or modify your access to the Website and/or the Services without giving any prior notice to you at our discretion.
Without limiting the foregoing, we may terminate, suspend or modify your use of your User Account and the Website and/or the Services in the following circumstances:
- we receive a serious complaint or multiple complaints about you from any other person;
- you breach these Terms;
- you impersonate another person;
- you do not successfully complete Verification;
- we consider any conduct by you (whether or not that conduct is related to the Website or the Services) puts the Website, the Services or other Users at risk;
- we, in our sole discretion deem your behaviour to be unacceptable; and/or
- your conduct may, in our reasonable opinion, bring PropFi, the Real Estate Agent or the Vendor into disrepute or adversely affect their respective reputations or image.
8. INTELLECTUAL PROPERTY
8.1 Intellectual property owned by us
PropFi (and/or its suppliers and licensors) own all Intellectual Property Rights in and to the Website, the Services and the software and other material underlying and forming part of the Services and the Website.
Unless you obtain our prior written approval, you must not use, adapt, reproduce, store, distribute, publish, broadcast, display or create derivative works from any part of the Website or the Services.
8.2 Your licence for use of the Services
When using the Services, if you are using PropFi software, tools or applications, we grant you a limited, non-exclusive, non-transferable licence to access and use those software, tools or applications only as required for your use of the Services and as expressly permitted in these Terms.
We reserve all right, title and interest not expressly granted under this licence to the fullest extent possible under applicable laws.
9. USER GENERATED CONTENT
9.1 Your representations and warranties
You represent and warrant that any User Content:
- is original work, and that you own or otherwise control the rights to the User Content;
- does not violate these Terms, any law, or any third party Intellectual Property Rights; and
- is not offensive, vulgar, indecent or inappropriate for the audience of Users.
9.2 Removal of User Content
We may, at any time, with or without any prior notice to you, remove, block or modify any User Content from the Website or the Services for any reason whatsoever at our sole discretion.
9.3 Licence you grant to us
You grant us a nonexclusive, transferrable, royalty free, perpetual right to use, sub-licence, reproduce, modify, copy, distribute, transmit, display, translate, publish and create derivative works from the User Content throughout the world in any form.
You assign us the right to pursue the enforcement of copyright and other intellectual property claims against third parties that have, without authorisation and in violation of these Terms copied, used, modified, displayed or distributed User Content, unless you have granted that third party a separate licence to use the User Content.
10. SERVICE LIMITS, DISCLAIMERS AND LIMITATIONS OF LIABILITY
10.1 No agency or auctioneer
PropFi provides a technology platform or venue for Auctions and storage and access to information about any Property that has been uploaded by a User. PropFi is not:
- acting as an agent for any party; or
- acting as an auctioneer.
10.2 No responsibility for content or conduct of Users
Any information that you rely on, or transactions you enter into using the Website or the Services are entirely at your own risk. You are solely responsible for the actions you take in reliance of the information available on or accessed through the Website and/or the Services.
PropFi has no responsibility and liability for:
- the conduct of Users, including without limitation no responsibility for Users who have created a User Account under false pretences and act fraudulently;
- the ability of any User to complete a transaction;
- ownership and rights of any person to any Property;
- User Content posted on the Website;
- act, omission, representation or breach of any duty at law by any other User;
- the accuracy, reliability, completeness and correctness of any information (including any data, images, opinions, advice, representations and descriptions about any Property, Vendor or User) displayed, stored, described or contained on the Website (including any information contained in any Property File) or provided during the course of using the Services.
10.3 No warranties
The Website and the Services are provided on an “as is” and “as available” basis. To the maximum extent permitted at law, PropFi disclaims and excludes all implied conditions or warranties as the Website and the Services. Without limiting the foregoing PropFi does not:
- give any warranties of merchantability, fitness for a particular purpose and non-infringement;
- warrant that the Website and/or the Services will be compatible with your equipment; or
- warrant that the Website and/or the Services will be free from errors, loss, destruction, interruption, corruption (including corruption of data), or that the Website and/or the Services will be timely or secure.
10.4 No liability for your use of the Services and the Website
PropFi will not be liable or responsible for any damages arising from the use (or inability to use) of the Website and the Services, including any loss, costs or damages arising from any:
- corruption or loss of data or other information;
- malware that may be transmitted to your computer by use of the Services and/or the Website;
- interruption, suspension or discontinuance of the Website or the Services; or
- time delays or time differences between the time shown and recorded on the PropFi systems and the time shown and recorded on your own computer or mobile device and systems (as the date and time that you see when you use the PropFi Services is based on the date and time settings of your own computer or mobile device).
10.5 No liability for loss of profit, indirect and consequential damages
Except as required by law, PropFi will not be liable for any indirect, consequential loss or special damages, loss of profit or any costs, expenses or other claims whatsoever for any consequential compensation (and whether caused by the negligence of PropFi, its employees or agents or otherwise) which arise out of, or in connection with any breach of contract (being these Terms), equity, common law, statutory duty or by reason of any representation, implied warranty or other condition.
10.6 Liability cap
Notwithstanding any other provision contained in these Terms and Conditions, PropFi’s aggregate liability to you, whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed NZ$200.
10.7 Supported mobile devices and browsers
PropFi does not support all mobile devices and browsers, and due to user demand and changes in technology, the browsers and devices that PropFi supports may change from time to time. As at the date these Terms are published on the Website, PropFi supports:
- Safari (IOS 9.3.4) on iPhone 6, iPhone 6S, iPhone 6S Plus, iPad 1, iPad 2; and
- Android (5.1.1) operating system, chrome browser, Samsung J5 and S5 mobile devices.
PropFi will notify you by posting a notification under “Announcements” on the Website if the mobile devices and browsers that it supports change.
You indemnify PropFi for any loss, cost, damage or expense of any nature whatsoever suffered or incurred by PropFi arising out of:
- your breach of these Terms and Conditions; or
- in relation to any User Content provided by you that infringes the Intellectual Property Rights of any third party.
12. TERMS THAT DO NOT APPLY TO CONSUMERS
If you are a “consumer” for the purposes of the Fair Trading Act 1986 and Consumer Guarantees Act 1993, nothing in these Terms is intended to limit any rights or remedies that you may have under the Fair Trading Act 1986 or the Consumer Guarantees Act 1993.
14.AUDITING AND MONITORING
As part of any PropFi compliance program (to manage compliance with these Terms and Conditions and any law or requirement by any authority), PropFi reserves the right to:
- review, audit and monitor (manually or through automated means) your use of the Website and/or the Services;
- take any action we deem appropriate in our sole discretion in accordance with our policies, including suspend or terminate your User Account, edit, remove or block any content that we deem inappropriate or unacceptable, and in the case of any illegal or suspected illegal activity, report any matters to the appropriate authority; and
- access, collect, preserve or disclose information about your use of the Services and/or the Website (including your communications and content you submit) as is necessary to:
- comply with any legal process;
- enforce these Terms;
- respond to any claims or complaints about any content you submit, or act or omissions by you;
- respond to your customer service requests; and
- protect the rights, property, safety of us, any User or the public.
15. GENERAL TERMS
15.1 Force majeure
PropFi has no liability to you for any lack of performance, unavailability or failure of the Service and/ or Website, or failure to comply with these Terms a where the same arises from any cause reasonably beyond the control of PropFi.
15.2 Notification of changes to these Terms
We may amend these Terms from time to time by posting the revised version on our Website or sending an email to you at least two weeks before the effective date of any amendment. If you continue to use our Website and Services following the effective date of any amendment, then you will be deemed to have accepted the amendment to these Terms. If you do not accept any amendment to these Terms you will not be penalised by us but you may no longer use the Website or the Services from the effective date of that amendment.
15.4 Notices and electronic communications
We may provide you with notices, including notices relating to these Terms by way of electronic communications, including by email or other electric communication on the Website or through the Services.
15.5 No waiver
If we do not exercise or enforce any rights available to us under these Terms that does not constitute a waiver of those rights.
15.6 No assignment
You may not assign, transfer and/or subcontract any of your rights under these Terms.
If any provision contained in these Terms is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of these Terms will remain in full force and effect and will not in any way be impaired.
15.8 Contact us
For any questions about the Website or the Services, please contact our Compliance Officer:
15.9 Translation of these Terms
Any translated version of these Terms (into a language other than English) is provided solely for your convenience and is not intended to modify any terms and conditions contained in these Terms. If there is any conflict between the English version of these Terms and a version in a language other than English, then the English version shall apply.
15.10 Governing law
These Terms are governed by New Zealand law, and you agree that the courts of New Zealand shall have non-exclusive jurisdiction to settle any dispute which may arise out of or in connection with these Terms.