Leasing Out Commercial Property Brings Its Challenges. Here's What You Should Look Out For…
Leasing out commercial spaces brings its own set of unique challenges.
By registering to use Re-Leased You acknowledge that You are bound by this Agreement and that You have authority to bind all Users to this Agreement.
In this Agreement, unless the context requires otherwise:
Agreement means these terms and conditions as they may be amended from time to time;
Business Day means any day of the week other than a Saturday, Sunday or statutory holiday in Auckland.
Commencement Date means the date on which Your subscription to Re-Leased is accepted by the Licensor;
Confidential Information means any information that is or has been disclosed by one party to the other with respect to the disclosing party’s business, but does not include any information that is:
a) On receipt, in the public domain or that subsequently enters the public domain without any breach of this Agreement;
b) On receipt, already known by the party receiving it;
c) At any time after the date of receipt, received in good faith from a third party; and
d) Required by law to be disclosed;
Data means all data uploaded by or on behalf of You to Re-Leased;
Intellectual Property Rights means all copyright, trade or service marks, patents, registered designs and applications to register trade or service marks, patents or registered designs and all other intellectual property rights and interests whether arising under statute, common law or equity;
Interest Rate means a rate of interest that is 5% per annum above the highest rate charged by the Licensor’s bank
Licensor means Wallace Software Company Limited and any assignee or successor in title to Wallace Software Company Limited;
Modifications means any modifications, upgrades or developments of Re-Leased;
Prepaid Month means any month in respect of which You have made payment under clause 5.1;
Re-Leased means the web based Re-leased property management platform developed by the Licensor and includes all Modifications from time to time;
Subscriber means the person who registers to use Re-Leased;
User means each person who accesses Re-Leased through the Subscriber’s log in;
Website means the website through which Re-Leased is accessed from time to time;
You means the Subscriber and where the contexts permits, each User and Your has a corresponding meaning.
2.1. The Licensor hereby grants to You a non-exclusive, non-transferrable licence to use Re-Leased through the Website in accordance with these terms and conditions.
2.2. The Subscriber is responsible for any act or omission of Users.
2.3. For the avoidance of doubt it is recorded that the Licensor does not provide any support services in respect of Re-Leased.
This Agreement shall commence on the Commencement Date and shall continue on a perpetually renewable monthly basis subject to the rights of termination in clause 11.
4.1. You must:
4.1.1. Use Re-Leased only for Your business;
4.1.2.Keep the Licensor informed of any other relevant information which comes to Your attention and which may either assist the Licensor in operating or developing Re-Leased or the Website or otherwise protect the Licensor’s Intellectual Property Rights in Re-Leased and the Website;
4.1.3. Be responsible for the security of Re-Leased and shall take all reasonable care to ensure that Re-Leased is protected at all times from unauthorised access or use and in particular from copying by any third party, or from misuse, damage or destruction by any person.
4.2. You undertake to the Licensor that You shall not:
4.2.1. attempt to undermine the security or integrity of Re-Leased or the Website;
4.2.2. use, or misuse, Re-Leased or the Website, or impair the ability of any other user to use Re-Leased or the Website;
4.2.3. transmit, or input into the Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); or
4.2.4. attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer Re-Leased.
5.1. You shall pay to the Licensor the monthly licence fee specified from time to time by the Licensor. The monthly licence fee shall be paid monthly in advance by credit card. The Licensor will not refund all or any part of the licence fee in the event of termination of this Agreement part way through a month.
5.2. The licence fee is set by reference to the number of leases that the Subscriber uploads to Re-Leased and by reference to the number of Users of each Subscriber as advised from time to time by the Licensor. If during a month a Subscriber exceeds either the number of leases or the number of Users for the fee paid in advance, then the Subscriber must pay an additional fee equivalent to the pro-rata amount of the fee for that number of leases or Users for the balance of that month.
5.3. The Licensor may increase the licence fees from time to time by posting notice of such increase on the Website.
5.4 The name that will appear on your statement will be Re-Leased
6.1. In the event You fail to make any payment required under this Agreement on the due date for the payment the Licensor may charge You interest on the amount outstanding from the due date to the date of actual payment at the Interest Rate (calculated on a daily basis).
6.2. You shall be liable for and you agree to indemnify the Licensor in respect of all costs and expenses which the Licensor may incur as a result of any default You in making any payment under this Agreement, including legal costs and expenses incurred on a solicitor/client basis.
7.1. The Licensor reserves the right to carry out Modifications to Re-Leased from time to time.
7.2. The Licensor reserves the right to amend these terms and conditions at any time by posting the amended terms and conditions on the Website. Any use of Re-Leased after any amendment will be acceptance of the amendment by the User.
7.3. The Licensor reserves the right to suspend Your use of Re-Leased and access to any Data in the event that You are in breach of this Agreement.
8.1. You acknowledge that title to and all Intellectual Property Rights in Re-Leased and the Website are and shall remain the property of the Licensor and that Your sole right in relation to those Intellectual Property Rights is the right granted under clause 2.1.
8.2. Title to and all Intellectual Property Rights in the Data are and shall remain Your property. Access to the Data is subject to payment of the payment in full of all amounts payable by You under this Agreement. You grant the Licensor a licence to use, copy, transmit, store and back-up Your Data in connection with the provision of Re-Leased.
8.3. The Licensor has no liability for any loss of Data however caused.
9.1. Each party recognises and acknowledges the confidential nature of the Confidential Information disclosed by the other.
9.2. Neither party will use or disclose any Confidential Information of the other party or use that Confidential Information for its own benefit except:
9.2.1. With the express prior written consent of the other party; or
9.2.2. In performance of this Agreement.
10.1. You indemnify the Licensor against any liability the Licensor may incur as a result of any breach of this Agreement by You or as a result of Your use of Re-Leased or the Website.
10.2. You agree that to the maximum extent permitted by law any and all liability of the Licensor under or in connection with Re-Leased, the Website or this Agreement is excluded regardless of whether the liability arises in contract, tort, equity or otherwise.
10.3. You warrant that You are using Re-Leased and the Website for the purpose of a business and agree that the Consumer Guarantees Act 1993 does not apply to this Agreement.
10.4. The Licensor makes no representation and gives no warranty regarding Re-Leased or the Website. In particular You acknowledge that no representation or warranty has been given that the Website or Re-Leased will be available at all times or that they will be suitable for Your use.
11.1. Either party may terminate this Agreement at any time by giving not less than 10 Business Days notice to the other. Such termination will occur at the expiry of the then current Prepaid Month.
11.2. Without prejudice to any other remedy which it may have, the Licensor may terminate this Agreement immediately by written notice if:
11.2.1. You commit a serious breach or non observance of Your obligations under this Agreement; or
11.2.2. The Subscriber becomes insolvent or goes into liquidation or has a receiver appointed in respect of any of the Subscriber’s assets or makes any arrangement with the Subscriber’s creditors.
11.3. Following termination You may access Your Data solely for the purposes of removing it from Re-Leased provided all amounts payable by You under this Agreement have been made in full. Clauses 6, 8.1, 9, 10, 12 and 13 survive termination of this Agreement.
12.1. Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, and conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 12.
12.2. The party initiating the dispute (the first party) must provide written notice of the dispute to the other party (the other party) and nominate in that notice the first party’s representative for the negotiations. The other party must within 5 Business Days receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
12.3. If the parties are unable to resolve the dispute by discussion and negotiation within 10 Business Days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
12.4. The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his or her fee determined by the Chair for the time being of LEADR New Zealand Inc.
13.1. No failure, delay or indulgence by any party in exercising any power or right conferred on that party by this Agreement shall operate as a waiver of such power or right. Nor shall a single exercise of any such power or right preclude further exercises of that power or right or the exercise of any other power or right under this Agreement
13.2. You shall not assign or deal in any manner with all or any of your rights, benefits and obligations under this Agreement without the prior written consent of the Licensor.
13.3. The Licensor may, at any time, assign all or any of its rights and benefits under this Agreement or transfer all or any of its rights, benefits and obligations under this Agreement.
13.4. If any part of this Agreement is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of this Agreement which shall remain in full force.
13.5. Nothing in this Agreement shall be deemed or construed to create any relationship of agency or partnership between the parties.
13.6. This Agreement shall be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the Courts of New Zealand.
13.7. This Agreement comprises the entire agreement of the parties relating to Re-Leased and the Website.