Last modified: Dec 6, 2020
Welcome to RateMyAgent.co.nz, a website portal operated by Ratemyagent.com Pty Ltd ("RMA").
RMA provides a portal by which visitors ("End Users") to ratemyagent.co.nz, and other related websites, social media web pages and smart phone applications operated by RMA (with ratemyagent.co.nz, each related website, and each smart phone application to be known as the "Site") may provide feedback or commentary on individual real estate agents and real estate agencies listed on the Site ("Agents").End Users and Agents may also purchase goods and services which RMA determines to offer through the Site from time to time ("Products").
RMA will permit you to use the Site and the Services (as defined in clause 1.1), and purchase Products through the Site, in accordance with the terms and conditions set out below ("this Agreement"). This Agreement forms a binding legal agreement between you and RMA. As a user of the Site, you will at all times be bound to this Agreement in the capacity as an End User. In addition, if you use functionality available to Agents, then you will be bound to this Agreement as both an End User and an Agent.
Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement by signing a document agreeing to be bound by this Agreement, by clicking a button on your computer screen or otherwise electronically indicating your acceptance of this Agreement, or by proceeding with the purchase of a Product or any use of the Services.
Subject to the terms and conditions of this Agreement, RMA will provide you with the following goods and services ("Services"):
the ability to create an Account (as defined in clause 2.1) on the Site and use functionality only available to holders of an Account;
the ability for End Users to search and browse Agents listed on the Site and view information contained on the Site about each Agent ("Agent Profiles");
the ability for End Users to rate Agents and provide comments on their performance, which will appear in the Agent Profile for the Agent;
the ability for Agents to claim their Agent Profile on the Site, and update and manage their Agent Profile; and
the ability to purchase Products through the Site as they are offered from time to time by RMA.
Subject to the terms of this Agreement, the provision of the Services and the Products which you purchase, constitute RMA's only obligation to you.
You agree that RMA may modify the Services at any time, and discontinue the Services (or part thereof) at any time. RMA may also restrict your use of some or all Services, suspend the delivery of the Services at any time and subsequently reinstate them at its discretion.
RMA may require you to create an online account with RMA ("Account") in order to use some or all of the Services. RMA may restrict the usage of the Services (or part thereof) for persons who do not have an Account. RMA may, from time to time, amend or place restrictions on the requirements needed to create an Account.
If you agree to create an Account with RMA then you agree:
if requested by RMA, to use your email address as your username;
that the Account will be created using RMA's online sign up process, or any other method specified by RMA from time to time;
to keep confidential and secure any username or password used to access the Account;
that you warrant that all information provided by you to RMA in the setup of the Account is true and correct in every detail; and
that you will only use the Account for the purposes of using the Services and purchasing Products, and for no other purpose.
You acknowledge and agree that RMA may disable or delete your Account at any time in its sole and absolute discretion, and for any reason whatsoever. If your account is deleted or disabled then you acknowledge and agree that you will only be able to use the parts of the Site and the same Services as provided by RMA to members of the public who do not have an Account.
You may terminate your use of the Service at any time by disabling or deleting your Account via functionality contained in the Site.
RMA will list Agents on the Site from time to time. Where practicable, it will obtain the identity of each Agent and information about them from the Agent or from publicly available sources.
RMA makes no warranty or representation about the accuracy of information it displays on the Site which it obtains from third parties.
RMA will determine which Agents it lists on the Site and may remove a listing of an Agent at any time. No Agent has any right to be listed on the Site or have an Agent Profile on the Site.
You acknowledge that where you claim your own Profile, you are agreeing to irrevocably licence RMA to reproduce all property listing data (including, but not limited to, all images, text, floorplans, movies or other works associated with a listing, whether sold or unsold) in respect of all properties which you are selling or have sold and you warrant that you are authorised and/or have the necessary rights to grant such a licence.
An Agent may manage and update their Agent Profile only if:
they have registered an Account with RMA; and
they have claimed their Profile with RMA using the relevant functionality on the Site, including sufficiently (as determined by RMA) identifying themselves to RMA as the individual agent described in the relevant Agent Profile.
An Agent may only claim their own Agent Profile and must not claim the Agent Profile of another real estate agent.
Subject to clause 4.2, an Agent must not comment on the Agent Profile of another Agent or in any public forums on the Site about other Agents.
RMA will determine in its sole discretion what functionality it provides to Agents to allow then to manage and update their Profile. Such functionality may however include, without limitation, the ability for Agents to:
upload an alternative photo, contact details and real estate agency details;
add links to their social media accounts;
add or modify a summary of their background;
verify their sales reports or report their sales results;
deem certain sales results to remain "undisclosed" or "confidential"; and
respond to comments and testimonials from End Users on the Agent's Profile (however noting that only one response will be allowed in relation to each testimonial).
You acknowledge that RMA will be able to modify any part of the content of your Agent Profile at any time in its sole and absolute discretion, with or without notice to you. RMA may also in its sole discretion, with or without notice to you, remove your Agent Profile from the Site.
You acknowledge that you will be unable to modify comments and/or testimonials from End Users on your Agent Profile.
RMA will determine the functionality that it offers End Users on the Site from time to time. This functionality may include, without limitation:
the ability to view Agent Profiles and search or browse for Agents using different search criteria;
the ability to view User Content (as defined in clause 7.1) and all other content on the Site;
the ability to provide comments on Agent Profiles;
the ability to comment in any public forums on the Site;
the ability to provide ratings of Agents using any ratings criteria specified by RMA from time to time; and
the ability to view a log or history of interactions with the Site.
If you are both an Active agent and a recipient of real estate services of another Agent, then you are not permitted to write a review, be it positive or negative for any agent who actively sells property within the same market.
RMA may determine from time to time, to supply Products through the Site for purchase by Agents or End Users.
If Products are supplied through the Site, then RMA may impose additional terms and conditions which apply to the purchase and supply of the relevant Products, either by setting out the additional terms and conditions below in an addendum to this Agreement ("Product Addendum") or by detailing the additional terms and conditions on the Site page relevant to the particular Product ("Additional Terms") .Any Product Addendum or Additional Terms will form part of this Agreement and, unless otherwise stated, will override any inconsistent term in this document, to the extent of the inconsistency only.
By ordering and purchasing any Product from the Site, you agree:
that you are bound by and will comply with the Product Addendum or Additional Terms applicable to the Product;
to pay the applicable fee for such Product ("Fee"); and
to be bound to a minimum term to use or purchase that Product ("Term") (if any),
which may be specified by RMA on the order form completed by you as part of the purchase of the Product, on the RMA Site or on other materials supplied to you by RMA from time to time.
Unless otherwise stated, you acknowledge and agree that each Term will automatically renew for successive Terms of the same duration unless you notify RMA, in writing and at least 7 days prior to the expiry of the then current Term, that you do not wish to renew your use of the Product, or unless your use of the Product is otherwise terminated in accordance with this Agreement.
Unless otherwise stated and subject to clause 5.3, RMA will provide you with invoices in respect of the Fee on a monthly basis and you agree to pay the Fee by the date indicated on RMA's invoice, or by any other date upon which RMA states that the Fee is due.
RMA may require you to provide it with an authorisation to direct debit the Fee from your credit card or nominated bank account. Once authorisation is provided the Fee will be automatically debited by RMA.
Unless otherwise stated, you may terminate any order or agreement for RMA to supply you with Products at any time with no less than 30 days' written notice to RMA.
RMA may suspend or terminate any order or agreement for RMA to supply you with Products:
immediately if you are in breach of this Agreement and, in RMA's sole opinion, the breach is not a capable of remedy or is a material breach;
immediately if you are in breach of this Agreement and fail to remedy that breach within 7 days of receiving written notice from RMA requiring you to remedy the breach; or
without cause, by giving 14 days' notice to you.
Unless otherwise stated, upon termination of any order or agreement for RMA to supply you with Products:
where such termination is pursuant to clause 5.8(a) or 5.8(b), you must pay any unpaid amount of the Fee to RMA which would be owing over the remainder of the Term had such termination not occurred and you agree that, if an authorisation has been given in accordance with clause 5.6, the Fee may automatically be charged to your credit card or direct debited from your nominated bank account; or
if the order or agreement is terminated under clauses 5.4, 5.7 or 5.8(c), then you must pay the Fee incurred up to the date upon which termination becomes effective only. RMA will refund you any unused portion of the Fee which you have prepaid, and which relates to any period after the effective date of termination.
Termination of your use of a Product will not of itself, unless stated by RMA to the contrary, terminate your use of the Site or the Services. RMA may however separately exercise any of its rights under this Agreement, including terminating the Services pursuant to clause 1.3, or terminating your Account pursuant to clause 2.3.
The User Content (as defined in clause 7.1) and all other content and information on the Site, including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is proprietary to RMA. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or Services obtained from or through the Site. Additionally, you agree not to:
use the Site or its contents for any commercial purpose, other than in your capacity as an Agent;
use another person's name, account, identity or password without permission, or use the Site while impersonating another person;
access, monitor or copy any content or information of the Site using any robot, spider, scraper or other automated means or any manual process for any purpose without RMA's express written permission;
violate the restrictions in any robot exclusion headers on the Site or bypass or circumvent other measures employed to prevent or limit access to the Site;
take any action that imposes, or may impose, in RMA's discretion, an unreasonable or disproportionately large load on its server infrastructure;
deep-link to any portion of the Site for any purpose apart from where expressly permitted by this Agreement; or
you cannot link directly to your Agent Profile or any other web pages on the Site, directly from Google Adwords or other digital advertising platform, unless otherwise approved by RMA by way of notice in writing to you.
attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by RMA in connection with the Site or the Services.
You agree that RMA will be the owner of all Intellectual Property Rights (as defined below) in any content which you submit to the Site, including, without limitation, postings on the Site, commentary in forums or on Agent Profiles or any suggestions or ideas, or any other work, item or thing you upload to the Site or provide to RMA ("User Content"). For the purposes of this Agreement, the term "Intellectual Property Rights" shall refer to all intellectual property rights of any kind whatsoever throughout the world, including all present, future, registered and unregistered rights which subsist in copyright, trademarks, patents, designs and circuit layouts.
To the extent that you have any moral rights (as that term is defined in the Copyright Act 1993 ) in any User Content you provide to RMA, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to RMA making all uses, edits and modifications of the User Content in its sole discretion, including, without limitation, as further described in this Agreement.
You agree that:
the User Content is not confidential;
you are solely responsible for the User Content you post on the Site;
RMA may reproduce any User Content on the Site and will determine in its discretion how it presents your User Content on the Site;
RMA may make any modifications to the User Content in its sole and absolute discretion, before presenting that User Content on the Site; and
RMA may determine whether or not to attribute the User Content to you, or remain silent on any attribution.
You agree that RMA is under no obligation to edit, monitor or control the User Content which is published to the Site by an End User or Agent, however RMA reserves the right to do so.
You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish on the Site, any of the following ("Infringing Content"):
User Content that may infringe the Intellectual Property Rights of any person;
User Content that impersonates any person or entity or otherwise misrepresents your relationship with RMA or any other person;
User Content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
User Content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;
User Content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person or party in any country of the world;
User Content that has been solicited by an incentive or payment originating from the real estate agent or a representative of their agency;
unsolicited promotions or SPAM;
User Content which contains the private information of any person;
User Content that is unrelated to the page of the Site in which such User Content is posted; and/or
User Content which contains viruses, malware or any other malicious software or data.
For guidance on how to write commentary that may be less susceptible to removal based on potential legal liability, please refer to the content guidelines.
RMA will have no responsibility or liability for any User Content or Infringing Content posted, stored or uploaded on the Site, or for any loss or damage suffered by you or any other person as a result of the Site storing, holding, or making available, any User Content or Infringing Content to End Users, Agents or other members of the public.
RMA is under no obligation to review any User Content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.
Subject to clause 7.6, if you have any complaints or objections to material or content including User Content posted on the Site, or if you consider any User Content to be Infringing Content, you may contact us and notify us of the relevant content by following our takedown procedure ("Takedown Procedure") and submitting a takedown request ("Takedown Request"). Click here to view the Takedown Procedure.
Where you submit a Takedown Request, you agree to follow any procedures which RMA specifies from time to time and you agree to provide RMA with all information which it requests in considering your Takedown Request, including but not limited to information verifying your identity and the basis upon which you consider the relevant User Content to be Infringing Content.
You acknowledge that notwithstanding your Takedown Request, RMA is under no obligation to remove any Infringing Content other than where stated in this Agreement or where required by law.
If RMA does remove allegedly Infringing Content, then you acknowledge that such removal is done on a without prejudice basis, and upon such removal, you agree to release RMA from any action, claim, proceedings, damages or other obligation which you may make, institute or claim against RMA due to the publication of the allegedly Infringing Content on the Site.
You indemnify and keep indemnified, RMA, its agents, employees and officers against all loss, cost, expense or damage which RMA, its agents, employees or officers suffer or incur, as a direct or indirect result of:
your breach of this Agreement or violation of any law or rights of a third party;
you posting or uploading any Infringing Content to the Site; or
any legal proceedings or any claim made against RMA by a third party, which arises directly or indirectly from any Infringing Content posted or uploaded by you to the Site.
Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of RMA will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by statute.
If you are a consumer (as defined in the Consumer Guarantees Act 1993), then nothing in this Agreement restricts, limits or modifies your rights or remedies against RMA for the failure of a statutory guarantee under New Zealand consumer law where such restriction, limitation or modification would be prohibited by the Consumer Guarantees Act 1993, the Fair Trading Act 1986, or any similar consumer protection legislation.
You acknowledge that RMA has made no warranties that the Services or Products will be error free.
Subject to clauses 8.1 and 8.2, you agree that RMA will not be liable or responsible for any failure in, or delay to, the provision of the Services or Products or in RMA complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:
fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
a significant demand being placed on RMA's services which is above the usual level of demand and which results in a failure of RMA's software and hardware to function correctly;
the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to RMA; or
any other circumstances or event similar to the above which is beyond the reasonable control of RMA.
You acknowledge that RMA has not made and will not make any express or implied warranties in relation to the Services, the Products or any other goods or services provided by RMA under this Agreement, other than those warranties expressly contained in this Agreement or implied by law. Subject to the following, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
Subject to your rights arising under the Consumer Guarantees Act 1993 or other similar consumer legislation, you agree that RMA will not be liable in respect of any claim by you (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services, the Products or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by RMA, or any negligence of RMA. The maximum liability of RMA under this Agreement for any and all breaches of this Agreement, and any negligence in relation to this Agreement, will not exceed the total amounts of payments made by you to RMA under this Agreement, and if you have not paid any monies to RMA, then the maximum liability of RMA will be $10.00.
If the Consumer Guarantees Act 1993 (or analogous legislation) applies to this Agreement, the following remedies may be available to you where goods or services provided to you pursuant to this agreement do not comply with the guarantees set out in that Act::
in the case of goods:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods; or
a refund of the price paid for the goods; and
the case of services:
to have RMA remedy the failure.
This Agreement may be amended at any time by RMA providing you with a new copy of the amended Agreement. The amendments will then take effect from the next time you log into the Site and/or use the Site. If you do not agree with the amendments, then you must cease using your Account, the Site, each of the Services and each Product after you are notified of the amendments.
Any notice given under this Agreement must be in writing and must be signed by the party giving the notice. Unless a later time is specified in a notice, the notice is taken to be received:
in the case of a notice delivered by hand, when so delivered;
in the case of a notice sent by pre-paid post, on the third clear Business Day after the date of posting;
in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that all of the pages comprised in the notice have been successfully sent to the receiving party's facsimile number;
in the case of a notice sent by email, at the time that the email is sent, unless the sender receives a notification that the email was delayed or not received; or
in the case of a notice sent via functionality contained in the Site, at the time the notice was sent,
but if the effect of paragraphs (a) - (e) above is that a notice is taken to have been received before 9:00am or after 5:00pm on a day which is not a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia ("Business Day"), or on a day which is not a Business Day, then the notice is taken to have been received at 9:00am of the next Business Day.
Neither party is the partner, agent, employee or representative of any other party and neither party has the power to incur any obligations on behalf of any other party.
There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
You must not assign or novate any of your rights or obligations under this Agreement. You agree that RMA may however assign or novate this Agreement at any time, with or without further notice to you.
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
This Agreement will be construed in accordance with and will be governed by the laws in force in New Zealand. Each of the parties irrevocably submits to and accepts the non-exclusive jurisdiction of any of the Courts of New Zealand.
The terms and conditions in this addendum ("Promoter Addendum") apply to the supply of digital advertising packages by RMA ("Promoter Product"). This Promoter Addendum constitutes a Product Addendum under clause 5 of the Terms and Conditions.
Agents with an active Account may submit orders to use the Promoter Products for online advertising campaigns ("Campaigns") via the Promoter Product page on the Account portal.
When submitting an order, you will select the particulars of the Campaign, including the Term, scope, budget, platforms and geographical reach ("Campaign Specifications") based on the tailored packages made available by RMA from time to time.
RMA will deliver the Campaign according to the Campaign Specifications selected when submitting the order. At various stages throughout the Campaign, you may be able to manage the progress of the Campaign via your Account portal.
RMA may, in its sole discretion, agree to vary the Campaign Specifications and/or the Fees payable if requested (including by making permitted changes via your Account portal). RMA will not be obliged to agree to such a request and any variation will only be binding if approved by RMA.
The Term of a Campaign will be determined when selecting the Campaign Specifications at the time of submitting an order. The Campaign will end on the earlier of the expiry of the Term, the depletion of the budget agreed in the Campaign Specifications, or will continue on a monthly rolling basis until terminated. Some Campaigns will not automatically renew and you will be required to order new Campaigns to continue accessing the Promoter Products. Other Campaigns will continue to roll on a monthly basis until you or RMA terminate the Campaign.
The Fees payable for each Campaign will be based on the price list we publish on the Site from time to time and will be specified on the check-out page at the time of purchase.
Depending on the type of Campaign you have purchased, Fees must be paid either (i) in full and up-front upon ordering a Campaign; or (ii) on a monthly basis via direct debit until the Campaign is terminated.
You may pay the Fees by entering new credit card details or using credit card details stored on your Account.
If you have selected to purchase a Campaign that requires payment in full upon ordering the Campaign, the credit card selected at the time of ordering will be direct debited for the full amount of the Fees applicable for a Campaign, upon confirmation of your purchase.
A tax invoice will be made available on your Account for review and download shortly after your payment is received and processed by RMA.
You will not be able to suspend or end a Campaign which has been ordered and paid for, unless RMA agrees to a variation under clause 2.2 of this Promoter Addendum.
RMA may suspend or terminate a Campaign or your right to access the Promoter Products in accordance with clause 5.8 of the Terms and Conditions.
RMA will not refund any portion of the Fees (including where the Campaign is terminated or not fully completed for any reason) except if RMA agrees to a variation under clause 2.2 of this Promoter Addendum.