Last updated: 28 June 2023
1.1 When you make a purchase and accept these Subscription Terms at the Point of Purchase, an agreement is formed between you and Realtair New Zealand Limited NZBN 9429051171018 (we, us, our) consisting of these Subscription Terms and any Product-specific terms issued under clause 1.2 or other terms we and/or our related bodies corporate may issue from time to time which you accept (agreement).
(a) create an Account; and
(b) access and use the applicable Product.
1.3 To the extent of any inconsistency between the documents listed above, the following order of precedence will be applied:
(a) any applicable Product-specific terms; and
(b) these Subscription Terms.
2.1 This agreement will commence on the Start Date and will continue for the Term, unless or until terminated earlier in accordance with these Subscription Terms.
2.2 Unless either party notifies the other party of its decision not to renew this agreement no later than 60 days before the expiration of the Initial Term, the agreement will automatically renew on a monthly basis (each month being a Renewal Term), subject to the Fee increase set out in clause 4.2.
2.3 You must advise us at least 30 days prior to the end of the relevant month of your then current Renewal Term (Cut-Off Date) if you want to cancel your subscription and terminate this agreement (Cancellation Request). If your Cancellation Request is received:
(a) prior to the Cut-Off Date it will be effective at the end of your then current Renewal Term and the Products will remain accessible by you until the end of your then current Renewal Term that you have already paid the Fees for; or
(b) after the Cut-Off Date, your payment of the Fees for your next Payment Cycle will be processed and this agreement will be renewed for the next Renewal Term and your cancellation will take effect at the end of that Renewal Term and the Products will remain accessible by you until the end of that Renewal Term that you have paid the Fees for.
3.1 We will use all reasonable commercial efforts to provide you with access to, and use of, the Products in a timely and professional manner. Our services include access and use of the Products, our websites, other applicable services and our solutions and platforms, including any Training Services (where you have purchased them) (Realtair Services).
3.2 You agree to provide us with any information reasonably necessary for the provision of the Realtair Services, including, providing information and technology as necessary and appropriate.
3.3 You are responsible for your use of, or reliance on, any advice or recommendations provided by us in connection with the Realtair Services, including but not limited to, the security and access settings that may be configured for the Products.
3.4 Where you have purchased Training Services, we will use reasonable efforts to provide the Training Services in accordance with any timeline or dates agreed to by the parties in writing (Project Timeline), to the extent applicable, however you acknowledge that the Project Timeline may depend on you providing us with information or completing required tasks in accordance with clause 3.2. We will not be responsible for any deficiency or delays in the performance of the Training Services, including in accordance with the Project Timeline, to the extent that it is attributable to your delay or breach of this agreement.
4.1 You will pay the Fee each Payment Cycle in accordance with your Payment Method selected at the Point of Purchase and this clause 4.
4.2 Subject to clause 16.2:
(a) on 30 days’ notice to you, we may increase the Fees for any reason during the Term, the increase will take effect on your next applicable Payment Cycle; and/or
(b) without limiting clause 4.2(a), on written notice to you, the Fees may be increased each year by a percentage equal to the percentage increase in CPI for the same period, and the increase will take effect on your next applicable Payment Cycle.
4.3 All Fees are inclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction unless otherwise stated (Taxes). Should any payment for the Realtair Services be subject to withholding tax by any government, you will reimburse us for such withholding tax.
5.1 No matter what payment method you select as set out in this clause 5, we will invoice you for the Activation Fee as soon as reasonably practicable on execution of this agreement, and you must pay this invoice within 14 days of the date of the invoice. Subscriptions billing commences 30 days after contract start date.
5.2 Where your Payment Method is payment by invoice, we will invoice you for the applicable Fees monthly in advance, and you must pay each invoice within 14 days of the date of the invoice. Fees for any selected Training Services will be included in these invoices where appropriate.
5.3 Where your Payment Method is payment by debit or credit card, the remainder of this clause 5 applies.
5.4 You can request a change to your selected payment method at any time, by contacting us at firstname.lastname@example.org. Any changes will take at least 10 Business Days to take effect.
5.5 We will periodically and automatically charge the Pricing for the Products to your debit or credit card nominated by you in accordance with this clause 5. We accept Visa, MasterCard and American Express Cards, or such other cards we notify you that we accept.
5.6 You will be charged the Fees for any applicable Training Services at the same time we first direct debit your nominated debit or credit card for the Fees for the Products; or
5.7 It is your responsibility to ensure that:
(a) your debit or credit card details (as applicable) are always valid and up to date;
(b) sufficient funds are available each month; and
(c) the billing address and other necessary information you have provided are always valid and up to date.
5.8 All Fees will be billed by us (and therefore charged to your nominated debit card or credit card) monthly in advance. Notwithstanding, we reserve the right to bill you at other intervals and will provide you with reasonable notice prior to processing such billing.
5.9 We are not liable for any charges you incur as a result of incorrect payment information. If we incur an expense due to incorrect payment information provided by you, we reserve the right to seek reimbursement from you for such expense.
5.10 If we are unable to process your payment:
(a) you authorise us to reattempt the payment method a maximum of four times over a four-week period;
(b) if such reattempts are unsuccessful, we reserve the right to:
(i) seek payment from you via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party) and you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees;
(ii) seek reimbursement for any costs we incur when reattempting payment; and
(iii) suspend your (and your User’s) use of your Account and access to Realtair Services until all overdue amounts are paid.
5.11 If you believe that there has been an error in charging your nominated debit card or credit card (as applicable), you can contact us to confirm the details of the disputed charge at email@example.com. We will then investigate the matter and advise you in writing whether your debit or credit card (as applicable) has been incorrectly or correctly charged along with any other necessary details. If the parties cannot resolve the matter, you must contact your debit card or credit card provider (as applicable).
You can purchase any further Products and/or Training Services by contacting us at firstname.lastname@example.org.
7.1 A party will not disclose the Confidential Information of the other party to any third party, except:
(a) for the purposes of providing, or using, the Realtair Services and fulfilling any obligations under this agreement, including in the case of Realtair to allow your Users to access Customer Data as determined or instructed by you;
(b) where a party is required to do so under any law, code or regulation and/or any listing rules of any stock exchange, including disclosure to any third parties in order for them to comply with the same;
(c) to the party’s employees, subcontractors, representatives, or advisors on a need-to-know basis; and/or
(d) with the other party’s consent.
7.2 Each party must have appropriate security measures in place that are designed to protect Confidential Information against unauthorised access, disclosure or use.
8.1 Each party will comply with all applicable Privacy Laws when collecting, handling, storing, disclosing, or otherwise using any Personal Information in connection with this agreement.
8.2 It is your responsibility to ensure that you seek and obtain all necessary consents from and make all necessary disclosures to customers in respect of their Personal Information to enable disclosure of such information to Realtair for the purpose of the provision of the Realtair Services, to the extent such disclosure is permitted by any applicable laws.
8.3 You further acknowledge and agree that:
9.1 You must only use the Products in accordance with any applicable Product-specific terms, these Subscription Terms and for the Number of Users.
9.2 You are solely responsible for:
(a) determining your Users and any use of the Realtair Services by Users;
(b) ensuring you and your Users:
(i) comply with this agreement and all applicable Product-specific terms;
(ii) have all necessary skills, licences, accreditations, and qualifications required in accordance with industry standards and applicable laws and regulations in respect of your/their professional obligations as they relate to the Realtair Services (including access and use) (including any set out or required under any applicable Product-specific terms);
(c) all activity on the Account(s), including by you and/or or any Users and/or any unauthorised access by third parties;
(d) maintaining the confidentiality and security of the Account(s), including any login and password information, and notifying us immediately of any unauthorised use; and
(e) using all reasonable endeavours to prevent any unauthorised access to or use of the Realtair Services; and
(f) without limiting our security obligations under this agreement, protecting Customer Data, including backing-up, and ensuring the security of, the Customer Data, and taking appropriate measures to protect Customer Data from accidental, unlawful or unauthorised access, use or disclosure.
9.3 You will contact us immediately if you believe an unauthorised third party:
(a) may be using or accessing the Account(s); or
(b) if the Account(s) information, including any login or password information is lost or stolen.
9.4 You are solely responsible for:
(a) Customer Data, including determining what Customer Data you provide to us and/or give User’s access to; and
(b) the integrity, accuracy, quality and completeness of Customer Data and the means by which you acquire Customer Data, and you acknowledge that all outputs of the Realtair Services rely on this.
10.1 You acknowledge and agree to the following.
(a) We may use third party products (Third Party Products) and that some aspects of the Realtair Services (including our Products) are provided by and integrate with third party suppliers, including external software and data suppliers (Third Party Suppliers).
(b) You consent to our use of such Third-Party Products and Third-Party Suppliers, including any integration with them.
(c) We support certain specified customer relationship management systems (CRMs), and some CRMs provide more integration access than others. You accept that the integration access and constraints of that integration are subject to the CRM supplier. Accordingly, some CRMs may not support all Realtair functionality.
10.2 You acknowledge and agree that:
(a) your use of, and access to, the Third-Party Products may be subject to additional fees and separate terms issued by the Third-Party Supplier, which will form a separate agreement between you and the relevant Third-Party Supplier;
(b) we make no representations or warranties in relation to, and does not accept liability for, any Third-Party Products; and
(c) we may suspend your use of, or access to, the Third-Party Products at any time, including on request from the Third-Party Supplier of such Third-Party Products.
10.3 To the extent permitted by law, you agree not to pursue or make any claim against any of our Third-Party Suppliers in connection with the Realtair Services.
10.4 The Realtair Services may contain links to third-party websites, products, and services.
10.5 We do not make any representations or warranties in relation to, and we exclude all liability from, Third-Party websites, products and services, including the Third Party Products.
11.1 In addition to any other obligations set out throughout these Subscription Terms, or any applicable Product-specific terms, you must always access and use all Realtair Services:
(a) solely for the purposes set out in this agreement;
(b) in a manner that does not attempt to circumvent the agreed commercial arrangements, including Fees, set out under this agreement;
(c) acting in good faith, giving consideration to the commercial intent of the parties; and
(d) in accordance with this acceptable use clause.
11.2 Your access to, and use of, any Realtair Services must not violate any applicable laws, codes or regulations, including but not limited to intellectual property laws, data protection and Privacy Laws.
11.3 You must ensure that your access to, and use of, any Realtair Services complies with all applicable laws and regulations in your jurisdiction.
11.4 When using the Realtair Services, you agree that you will only upload, post, host, store, communicate or display content (including Customer Content) that:
(a) you have all consents and rights required under law and under any applicable contracts to upload, post, host, store, communicate and display (for instance, rights of ownership or a sufficiently broad licence to do so);
(b) does not infringe the rights, including privacy and Intellectual Property Rights of any other person;
(c) is not unlawful, does not give rise to any civil or criminal liability for you or us, and does not encourage any activity that may violate any applicable law or contract;
(d) is not fraudulent and does not constitute a fraudulent misrepresentation or promote fraudulent activity;
(e) is not and does not contain offensive, abusive or sexually obscene content;
(f) is not libellous, defamatory, discriminatory in respect of any individual or group, unsolicited, unwanted or harassing;
(g) is not a mass email or other commercial message, promotion, offer, advertisement, or solicitation (also known as “spam”); and
(h) does not contain viruses, malware, trojan horses, worms, or any other malicious or harmful program or code.
11.5 You agree that you will not:
(a) use Realtair Services for any purpose other than their intended purposes;
(b) access, use, alter or interfere with any areas of the Realtair Services that you are not authorised to access;
(c) check or test the vulnerability of any of our systems or networks or breach or circumvent any security or authentication mechanism;
(d) copy, caches, disassemble, decompile, reverse-engineer or modify any component of the Realtair Services, or use any automated means to collect information from the Realtair Services;
(e) do anything that would prejudice our rights, title or interest in and to the Realtair Services;
(f) transfer, sell, lease, distribute, or sublicense any part of the Realtair Services or the content contained within or hosted on the Realtair Services;
(g) attempt to destabilise, interrupt or overload our infrastructure by placing unreasonable burdens on our resources, including by sending requests to our systems more rapidly than could be achieved by a human user;
(h) engage in any other conduct that inhibits any other person from using or enjoying the Realtair Services;
(i) use or access the Realtair Services in any manner that:
(i) creates a risk to the integrity of the Realtair Services or the network, systems, equipment or facilities used in connection with the Realtair Services;
(ii) effects the quality of any service we provide; and
(iii) in an excessive manner including but not limited to excessive use or storage of data which is to be judged by us in our sole discretion;
(j) misuse the Realtair Services by tampering with their normal operation, or trying to access them using a method or interface other than those we provide;
(k) transmit any viruses, malware, trojan horses, worms, or other types of malicious or harmful software or code, or links to such software or code, onto or through the Realtair Services;
(l) impersonate another person or organisation, including any of our employees, or misrepresent your identity;
(m) reproduce, communicate, adapt, record, transfer, publish, perform, display, broadcast, distribute, offer or make available any of the content contained within or hosted on the Realtair Services in contravention of any applicable law or in breach of any person’s rights, including Intellectual Property Rights;
(n) remove or amend any intellectual property notices contained in or displayed on the Realtair Services;
(o) use another person’s login details for the Realtair Services without their permission; or
(p) breach another person’s privacy, for example by posting their personal information without first obtaining their consent or having another lawful ground(s) to do so.
11.6 You must not use conduct or attempt to conduct web scraping of any part of our websites and/or the other Realtair Services, including any content contained within or hosted on the Realtair Services.
11.7 If you fail to comply with the acceptable uses set out in this clause, we reserve the right to immediately suspend your Account(s) and/or your access to the Realtair Services, without liability for us (to the extent permitted by law). We are also entitled to immediately remove any content you upload, post, host or transmit that we consider or suspect to be in breach of this clause or any of our other terms and conditions, without prior notice to you and without liability for us (to the extent permitted by law).
11.8 Our rights to suspend your Account(s) and to remove content do not limit any other rights or remedies that may be available to us under this agreement.
12.1 You acknowledge and agree that we own all rights (including Intellectual Property Rights), title and interests in and to:
(a) the Realtair Services and Products (including any software, source and object code, algorithms, that form part of or relate to the Realtair Services, including any Products);
(b) any accompanying materials or documentation, including that are created by and/or for you and/or your Users in connection with the use of any Realtair Services;
(c) any variations, modifications, adaptations, developments and/or derivatives of any of the Realtair Services, and/or any accompanying materials or documentation; and
(d) Metadata and Aggregated Data, which we may use and commercialise at our absolute discretion, but excluding Customer Content.
12.2 We grant to you a limited, non-exclusive, non-transferable, revocable licence to access and use the Realtair Services solely to the extent permitted by this agreement and as is necessary to obtain the benefit of the Realtair Services for the duration of the Term. Any rights not expressly granted under this agreement are reserved by Realtair.
12.3 Without limiting any rights granted to us in this agreement you acknowledge and agree that you own all right, title and interest in Customer Data.
12.4 You acknowledge and warrant the following in respect of Customer Content:
(a) you are solely responsible for Customer Content, the integrity, accuracy and quality of Customer Content, and the means by which you acquire Customer Content;
(b) you have a right to use and transmit Customer Content;
(c) it does not breach any rights of a third party (including Intellectual Property Rights or Moral Rights);
(d) it is suitable and appropriate for use in connection with the Services;
(e) it does not include anything harmful, such as viruses;
(f) it is true, accurate, complete and current; and
(g) you will comply with all relevant laws or regulations in respect of Customer Content.
12.5 Realtair will not be responsible for and does not check or review Customer Content in any way. We reserve the right to remove any Customer Content that is deemed unsuitable, insulting, inflammatory, degrading, illegal or objectionable in our sole discretion or that is provided in breach of the warranties given under the terms of this agreement.
12.6 We are not responsible for any errors, omissions, Losses or damages of any kind resulting directly or indirectly from any inaccuracies in Customer Content or any failure by you to ensure the integrity, completeness or accuracy of Customer Content before providing it to us or inputting it into the Realtair Services.
12.7 You acknowledge and agree that we may host, transmit, maintain and store all or parts of Customer Data on servers located in multiple jurisdictions including Australia, New Zealand, and the United States of America.
12.8 You grant us:
(a) a royalty-free, non-exclusive licence during the Term, to use Customer Content (including any Intellectual Property Rights in and to Customer Content) to the extent necessary to perform our obligations under this agreement; and
(b) a non-exclusive, worldwide, royalty free, assignable, perpetual and irrevocable licence to copy, use and analyse non-Confidential Information and Customer Data for any purpose, for our business and for benchmarking and analytics to improve and understand the Realtair Services, product usage and customer needs, provided that we will use our reasonable endeavours to ensure such output and analyses will not contain any Confidential Information, Personal Information or other information which identifies you as a customer.
13.1 You acknowledge and agree that we may use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Realtair Services.
13.2 You consent to us using your company name and logo:
(a) to describe the circumstances of your use of the Realtair Services, on an ongoing and irrevocable basis, where we are required to do so under any law, code or regulation and/or any listing rules of any stock exchange (as applicable); and
(b) as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers.
14.1 You acknowledge and agree that the Realtair Services are provided on an ‘as is’ basis, service continuity is not assured and that the Realtair Services (including Customer Data to the extent you are accessing it through the Realtair Services) may be suspended, unavailable or have limited availability including:
(a) for routine or emergency maintenance, provided we will use reasonable endeavours, where possible, to;
(i) undertake such maintenance outside of normal business hours;
(ii) notify you in advance of any such maintenance; and
(iii) minimise disruption to your use of the Realtair Services due to such maintenance.
(b) to permit upgrades or other development activity to take place;
(c) due to technical malfunctions of your software, equipment or infrastructure (e.g., telecommunications connectivity, network congestion or delays);
(d) due to a Force Majeure Event; or
(e) if it is necessary for reasons of:
(i) public safety;
(ii) security of the Realtair Services;
(iii) interoperability of Realtair Services;
(iv) data protection; and/or
(v) any other work that is necessary for operational or technical reasons.
15.1 We may (either by ourselves or through our authorised representative) periodically conduct an audit to:
(a) verify that your access and use of any Realtair Services is in accordance with this agreement (including the Number of Users); and
(b) assess your compliance with this agreement.
15.2 You must participate in and cooperate with any audit carried out under clause 15.1 in good faith, including by providing us with such access to your systems, records, and personnel as is required for the purposes of the audit (provided that we give your reasonable written notice).
15.3 We and our authorised representatives may take copies of your records and books as are reasonably required for the purposes of carrying out the audit. Those copies will be your Confidential Information.
15.4 If an audit reveals:
(a) use by you of any Realtair Services that is not in accordance with this agreement, (including the Number of Users); or
(b) any breach of this agreement by you, you must immediately rectify your use or breach (including at our reasonable direction) and you must also pay, or reimburse us for, all costs and expenses relating to that audit (including accountancy or legal fees and/or unpaid Fees owed to us by you by way of such breach (for example, your use of the Realtair Services in excess of the Number of Users)).
15.5 Except as set out in clause 15.4, we will bear our own costs and expenses in carrying out an audit.
16.1 Either party may terminate this agreement (either in full, or in part in respect of specific Realtair Services) on written notice before the expiration of the Term where any of the following events occurs:
(a) The other party materially breaches any of the terms of this agreement and the breach is not capable of remedy.
(b) The other party materially breaches any of the terms of this agreement and does not remedy the breach within 30 days of receiving written notice of the breach.
(c) If the other party ceases to operate, becomes insolvent, enters liquidation, files for bankruptcy, makes an assignment for the benefit of creditors, appoints a receiver, or is subject to any similar action.
16.2 In addition to the above, the following termination rights apply:
(a) We may terminate this agreement immediately at any time on written notice to you if our relationship with a Third-Party Supplier that provides software, hosting services or other technology, products or services relied on by us to provide the Products expires or terminates or such provider requires us to change the way we provide the Products.
(b) Subject to clause 16.3, you may terminate this agreement on written notice as follows.
(i) If we provide you notice of a Fee increase under clause 4.2 and you do not agree to the increased Fee. If we do not receive a notice from you in accordance with this clause, and you continue to use the Realtair Services, then you agree that you’re deemed to have consented to the increase in the applicable Fee.
(ii) We give you a notice under clause 22.1 and you do not agree to such proposed change to these Subscription Terms. If we do not receive a notice from you in accordance with this clause, and you continue to use the Realtair Services, then you agree that you’re deemed to have consented to the proposed change and the amended Subscription Terms.
16.3 Where you terminate this agreement in accordance with clause 16.2(b), the termination will be effective at the end of your then-current Term, however:
(a) the relevant terms will not be changed, and the then current Subscription Terms will remain applicable; and
(b) any Fees will not increase, and your then current Fees will remain applicable.
16.4 Where this agreement is only terminated in part in respect of specific Realtair Services, the agreement will continue in full force and effect in respect of all other Realtair Services.
17.1 On termination of this agreement by either party (in whole or in part), subject to any terms of this agreement that permits otherwise:
(a) each party must, on request, return or securely destroy all Confidential Information in that party’s control; and
(b) you will no longer have any right to use, copy or access (or to permit any other person to use, copy or access) any of the Realtair Services (in whole or in part), or any other information or materials that we make available to you under this agreement, including our Confidential Information; and
(c) you must immediately pay any and all outstanding Fees owing as at the date of termination.
17.2 You acknowledge and agree that transferring Customer Data from your Account and/or the relevant Realtair Services to yourself or to a third party you have authorised on or before expiry or termination is solely your responsibility.
17.3 Following the expiry or termination of this agreement, you will no longer have access to Customer Data and we reserve the right to:
(a) retain a copy of Customer Data; and/or
(b) delete Customer Data within a period of 30 Business Days following such expiry or termination.
17.4 You acknowledge and agree that we, our related bodies corporate, affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents are not liable to you for any Loss or Consequential Loss in connection with denial of access to or deletion of Customer Data in accordance with clause 17.3.
17.5 The exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this agreement, by law, or otherwise.
18.1 Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:
(a) it has the power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
(b) there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.
18.2 We further warrant and represent as follows, to the best of our knowledge:
(a) That the Realtair Services, as provided by us and used in accordance with this agreement and our instructions and policies, do not, or will not, infringe the Intellectual Property Rights of any third party. This warranty does not apply to any of Customer Data, including without limitation where it is uploaded to or hosted on the Realtair Services.
(b) We will provide the Realtair Services:
(i) With due care and skill; and
(ii) in accordance with all applicable laws, codes and regulations.
18.3 You further warrant and represent as follow:
(a) Customer Data does not, or will not, infringe the Intellectual Property Rights of any third party.
(b) You and your Users have all rights, qualifications, authorisations, and licences in respect of the use of the Realtair Services.
(c) In using the Realtair Services, you and your Users will comply with this agreement, all applicable Product-specific terms, and all applicable laws, codes and regulations (including in respect of your professional obligations) in connection with the Realtair Services.
(d) Where you collect, or handle, Personal information, which is made available to us under this agreement, including where it is input into any of our Products, that you have collected all necessary consents to do so and that you have done so in accordance with all applicable Privacy Laws.
18.4 Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law:
(a) we exclude all warranties, conditions and representations in whatever form, relating to the Realtair Services, including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use or the security and operation of the Realtair Services, including that the Realtair Services will produce any particular outcomes for you and/or that it will be bug or error-free; and
(b) that no advice or information, whether oral or written, obtained by you from us or through or from the Realtair Services or under this agreement shall create any warranty not expressly stated in this agreement in any manner.
19.1 Subject to clause 20, we indemnify you, your directors, officers, employees, affiliates, agents, contractors, principals or licensors (your indemnified parties) from and against any Loss suffered or incurred by your indemnified parties as a direct result of:
(a) breach of applicable warranties;
(b) breach of clause 12 (Intellectual Property and Data);
(c) breach of clause 7 (Confidentiality);
(d) our negligent or fraudulent acts or omissions;
(e) our wilful misconduct; and
(f) our breach of applicable laws.
19.2 You indemnify us and our directors, officers, employees, affiliates, agents, contractors, principals, or licensors (our indemnified parties) from and against any Loss suffered or incurred by our indemnified parties as an indirect or direct result of:
(a) your breach of this agreement and/or any Product-specific terms;
(b) our access to Customer Content as determined or instructed by you;
(c) Customer Content, including but not limited to any third-party claim alleging that Customer Data or our handling or processing of Customer Content infringes rights, including privacy and/or Intellectual Property Rights of a third party;
(d) your negligent or fraudulent acts or omissions;
(e) your wilful misconduct;
(f) your breach of applicable laws;
(g) any of your acts or omissions in reliance on false, misleading or incomplete information that you have provided to us; and/or
(h) third-party claims arising out of or in connection with any of the items set out in clauses 19.2(a) – 19.2(g) above.
20.1 Notwithstanding any other provision of this agreement and to the fullest extent permitted by law:
(a) we are not liable to you, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, loss of opportunities or business interruption);
(b) our sole liability for loss or corruption of data is limited to restoring such data to the last useable backup, where applicable;
(c) we are not liable for any Loss arising from activity on your Account, including additional usage fees, loss of data or downtime caused by deliberate, inadvertent or unauthorised changes by any party, or files that you or your Users upload, transmit, install or otherwise uses in connection with the Realtair Services;
(d) we are not liable for any Loss incurred or suffered by you, your Users or any third party as a result of you and/or your Users use of the Product; and
(e) where our liability cannot be excluded in accordance with clause 20.1(a) our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed the fees paid by you in the 6 month period preceding any claim for any Loss.
20.2 If any supply by us pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Consumer Law, then nothing contained in this agreement restricts or modifies guarantee, right or remedy which pursuant to the Consumer Law applies to this agreement or is conferred on you, provided that to the extent that the Consumer Law permits us to limit its liability for breach of guarantee imposed by the Consumer Law, then to the extent permitted by the Consumer Law, our liability for such breach is limited to the following as determined by us:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
20.3 To the extent permitted by law all express or implied guarantees, warranties, representations, or other terms and conditions relating to the agreement or its subject matter, not contained in the agreement, are excluded from the agreement.
20.4 A party’s liability under this agreement will be reduced proportionately to the extent that any such Loss arose as a result of the other party’s act or omission.
20.5 We are not responsible for delays, disruptions or other faults in the Realtair Services caused by factors beyond our reasonable control, including but not limited to problems with the public internet or your computer systems, the acts and omissions of third parties, and/or Force Majeure Events. We are not responsible for any damage to any of your equipment or software resulting from your use of the Realtair Services.
20.6 You acknowledge and agree that we do not warrant or guarantee any particular outcomes or results from the use of the Realtair Services. Any such outcomes or results will not take account of your particular objectives or circumstances and are not a substitute for any professional advice. You should determine independently or, with the aid of appropriate professional advice, whether and how to proceed with the Realtair Services including any output delivered by the Realtair Services.
21.1 If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended (except any obligations to make any payments under this agreement) to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.
21.2 Except for your payment obligations under this agreement, neither party is liable for any delay or failure to perform any of its obligations under this agreement to the extent that the delay or failure is caused or contributed by a Force Majeure Event.
22.1 You acknowledge and agree as follows:
(a) We may vary these Subscription Terms by giving you notice via email as follows:
(i) Where the variation relates to or impacts your ability to access and use the Realtair Services and/or either party’s warranties or liabilities under this agreement, we will provide you with 14 days’ notice prior to such change taking effect.
(ii) All other changes will be effective from the date of notification.
(b) Subject to clause 16.2(b), your continued use of the Realtair Services after the relevant effective date of notification will constitute acceptance of the amended Subscription Terms.
(c) The date set out at the start of the Subscription Terms will reflect the date that they were last updated.
(d) We reserve the right to amend any Product-specific terms in accordance with the variation provisions in the applicable Product-specific terms on written notice to you.
23.1 Any party who claims to have a Dispute (refer to definition in clause 27) against another party must issue a notice to the other party claiming a Dispute has arisen, setting out the nature of the Dispute and all other information relevant to the Dispute (Dispute Notice).
23.2 Within 7 days after receiving the Dispute Notice, the parties must meet (or otherwise communicate) to resolve the Dispute” in good faith”. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties rights, obligations and liabilities.
23.3 If the parties are unable to resolve the Dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then the Dispute shall be resolved by arbitration in accordance with the Commercial Arbitration Action 2010 (NSW) with the seat of arbitration being Sydney.
23.4 Despite the existence of a Dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the Dispute.
24.1 Subject to clause 25, a notice, consent or other communication under this agreement is only effective if it is in writing, and it is received in full and legible form at the addressee’s address or email address. Any notice sent via a non-email channel must also have a copy sent via email.
24.2 A notice is deemed to have been received:
(a) if posted and emailed, on the third Business Day after posting;
(b) if delivered personally and emailed, upon delivery; or
(c) if sent only by email, the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message).
You acknowledge and agree that we may issue you communications regarding the Realtair Services, your Account or otherwise via your Account from time to time.
26.1 Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
26.2 We may sub-contract the performance of any part of our obligations and/or services under this agreement to any third party.
26.3 This agreement may not be assigned, sublicensed or otherwise transferred by you, whether by operation of law or otherwise, without our prior written consent, such consent not to be unreasonably withheld or delayed.
26.4 We may assign, sublicence or otherwise transfer this agreement at any time without your consent.
26.5 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
26.6 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
26.7 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
26.8 This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
26.9 Each party agrees that this agreement may be electronically signed, and that any electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
26.10 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination or expiry of this agreement. Any other term which, by its nature is intended to survive termination or expiry of this agreement survives such termination or expiry of this agreement.
26.11 This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia where otherwise required by law.
27.1 In this agreement, unless the context otherwise requires:
Account(s) means any account(s) set up by you or us through which you and your Users access and use the Realtair Services.
Activation Fee means the once-off fee payable to set up the Product(s), as set out at the Point of Purchase.
Aggregated Data means any information or data derived from or aggregated using Customer Data which has Personal Information removed from it.
Business Day means a day (except Saturday and Sunday or a public holiday) on which banks are open for general banking business in New Zealand.
Confidential Information of a party means the confidential, proprietary and commercially sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) of that party (disclosing party) which his disclosed to, or learnt by or accessed by the other party (receiving party), including information which:
(a) is identified by the disclosing party as confidential or the receiving party ought to have been known to be confidential; and
(b) relates to the business affairs, products and practices, including financial information, business opportunities, business plans, business processes and methodologies, business systems and technology products including applications, software code, databases and data of the disclosing party, but does not include information:
(ii) which is independently known to, or developed by, the receiving party as evidenced by the receiving party’s written records; or
(iii) is or was made available to the receiving party by a person (other than the disclosing party) who is not, or was not, under an obligation of confidence to the disclosing party.
Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.
Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory of Australia, or any similar laws which may apply to this agreement in the relevant jurisdiction
CPI means the consumer price index for New Zealand households.
Customer Content means Customer Data and all content provided by you to Realtair or input by you, your Users, agents, nominees, and contractors into a Product in order for Realtair to provide the Product, including text, copy, images, data, graphics, or multimedia content.
Dispute means any controversy or claim arising out of, relating to or in connection with this agreement including any question regarding its existence validating or termination or otherwise concerning Realtair services or products.
Customer Data means all data, information and content provided by you to us (including when creating an Account) or which is input into the Realtair Products when using the Realtair Products, including any Personal Information.
Fees means the fees payable for the Products, as set out at the Point of Purchase and/or varied in accordance with these Subscription Terms.
Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightning, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority (including public health orders), which:
(a) directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
(b) is beyond the reasonable control of that party.
Initial Term means the initial term you purchase the Products for, as set out at the Point of Purchase.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, technology designs including computer programs, applications, databases and software code, patents, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.
Losses means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.
Metadata means all data relating to the provision and use of the Realtair Services, excluding Customer Data, Aggregated Data, data captured from a Realtair integrated external software system and Personal Information.
Moral Rights means the rights defined as “moral rights” under the Copyright Act 1968 (Cth) and any other similar right capable of protection under laws of any applicable jurisdiction.
Number of Users means the number of permitted Users the Product(s) were purchased for as set out at your Point of Purchase.
Payment Cycle means the timing of payments for Fees as follows, as the context requires:
(a) For the Initial Term, the payment cycle is as set out at the Point of Purchase (e.g. annually in advance).
(b) For each Renewal Term, the payment cycle is monthly in advance.
Payment Method means the payment method you select at the Point of Purchase.
Personal Information has the meaning given to in applicable Privacy Laws.
Point of Purchase means the point at which you subscribe to, and purchase, the Products and/or any Training Services, including via our website and/or via any digital documentation issued to us by you.
Privacy Law means the Australian Privacy Act 1988 (Cth) and the New Zealand Privacy Act 2020 together with any applicable privacy laws, codes and/or regulations.
Product(s) means Realtair products and services as available in New Zealand from time to time that you select at your Point of Purchase.
Realtair Services has the meaning given to that term in clause 3.1.
Renewal Term has the meaning given to that term in clause 2.2.
Term means the Initial Term and each applicable Renewal Term.
Training Services means the training services for our Products available to purchase online in New Zealand from time to time.
Users means your employees, agents, contractors, service providers (including advisors and consultants), and any other persons, entities or other third parties who are authorised, enabled or instructed by you to access and use the Realtair Services on your behalf, whether or not they have been supplied with a user email address and password by you, or us at your request.
27.2 In this agreement unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(d) references to statutes include all statutes amending, consolidating or replacing such statutes;
(e) $ means the lawful currency of New Zealand ;
(f) any reference to a party to this agreement includes its successors and permitted assigns; and
(g) the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it:
(h) any reference in this agreement to “Realtair,” “us,” “ we,” or “our” includes related bodies corporate of the New Zealand Realatir entity ( as may be appropriate or applicable): and
(i) any reference to a clause or schedule is a reference to a clause or schedule of this agreement unless otherwise specified.