By accepting these Terms and Conditions contained herein, you are entering into this Agreement between You (the Customer) and The Property Factory Limited (TPF) of Level 1, 83 Victoria Street, Christchurch, New Zealand :
A. You wish to engage TPF to provide Wholesale Property Membership or Platinum Property Membership on the terms of this Agreement.
B. TPF agrees to provide you with Wholesale Property Membership or Platinum Property Membership or Platinum Property Membership, on the terms of this Agreement, comprising of:
(i) Personal property strategy session
(ii) Financial health check
(iii) Access to our professional advisor network
(iv) Access to all new project releases
(v) Personal invitation to members pre-release events and webinars
(vi) Subscription to property market updates
(vii) Members-Only Facebook Group
(viii) Access to new project podcasts and videos
(ix) Personal invitation to members-only 2-day retreats (travel and accommodation to be paid for by member)
1 Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Agreement means this Agreement (including any schedule or annexure to it).
Arbitration Notice has the meaning given to it by term 7.4(c).
Business Day means a day other than a Saturday, Sunday, a public holiday or a bank holiday in New Zealand
Confidential Information means:
(a) all information passing from TPF to you, including:
(i) information or material designated by TPF as confidential;
(ii) information in relation to Properties recommended to you by TPF;
(iii) information or material imparted in confidence to you by TPF;
(iv) information or material, whether in material form or not, which is the property of TPF;
(v) information or material regarding clients, customers, employees, contractors of or other persons doing business with TPF,
but excluding information that:
(a) is in the public domain other than through any breach of confidence by you or your agents;
(b) is independently known by you; or
(c) was lawfully received from another person who had the unrestricted legal right to disclose that information free from any obligation to keep it confidential.
Dispute has the meaning given to it by term 7.1.
Dispute Notice has the meaning given to it by term 7.2(a).
Execution Date means the date on which the parties agree to be bound by this Agreement, such as agreeing to these term’s and conditions on the membership sign up page
Intellectual Property means:
(a) designs within the meaning given in the Designs Act 1953, patents within the meaning given in the Patents Act 2013, trade marks within the meaning given in the Trade Marks Act 2002, works within the meaning given in the Copyright Act 1994, trade secrets, procedures, technical designs, applications, patentable processes and/or articles, and includes:
(i) all inventions, discoveries and novel designs, whether or not registrable as designs, patents or trade marks; and
(ii) the entire copyright in all works.
Intellectual Property Rights has the meaning given to it by term 11.1(b).
Investment Preferences means the information you provide to TPF about your circumstances and preferences in relation to investing in a Property. This includes:
(a) the amount of monies which you have allocated to invest in Property and the availability of these monies to complete the investment;
(b) your ability to obtain finance where any impediments to obtain finance (such as current or previous insolvency or credit rating defaults) have been disclosed to TPF in a full and complete manner;
(c) your financial circumstances, for example, income, expenses, assets, liabilities, credit rating and details surrounding your ability or inability to obtain credit;
(d) your willingness and desire to use TPF’s complete Platinum Property Membership service to assist you to buy a Property; and
(e) your objectives in buying property.
GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1985
Ongoing Access means:
(a) access to members-only new project releases
(b) access to our professional advisor network
(c) access to new projects
(d) access to members-only Facebook group
(e) access to members-only podcasts and videos
(f) invitations to pre-release webinars, events and retreats
Personal Information has the meaning as part 2 section 6 in the Privacy Act 1993
Wholesale Property Membership or Platinum Property Membership means access to property investment opportunities and resources developed and provided for you by TPF.
Property means residential, industrial and commercial real estate.
TPF means The Property Factory
You or Your means the Customer and Subscriber to Wholesale Property Membership or Platinum Property Membership
In this Agreement, unless the context otherwise requires:
(a) headings are for reference only and do not affect interpretation;
(b) examples and use of the word including and similar expressions do not limit what else may be included;
(c) alternative grammatical forms of defined words or expressions have corresponding meanings;
(d)the singular includes the plural and vice versa;
(e) a reference to an individual or person includes a corporation and vice versa;
(f) a reference to any gender includes all genders;
(g) “notice” means a written communication;
(h) a reference to “dollars” or “$” is to New Zealand currency;
(i) an accounting term is to be interpreted according to the Accounting Standards;
(j) any undertaking, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(k) a party to any document includes that person's successors and permitted substitutes and assigns;
(l) an agreement includes any undertaking, representation, deed, agreement or legally enforceable arrangement or understanding whether written or not;
(m) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(n) a reference to a term, recital, clause or schedule is to a term, recital, clause or schedule of or to this Agreement;
(o) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(p) time is to New Zealand time unless stated otherwise;
(q) anything (other than making a payment) required to be done on or by a day which is not a Business Day, must be done on or by the next Business Day; and
(r) no provision or expression is to be construed against a party on the basis that the party (or its advisers) was responsible for its drafting.
2 Wholesale Property Membership and Platinum Property Membership
2.1 Provision of Wholesale Property Membership
TPF agrees to provide you with, and you agree to receive, the Wholesale Property Membership on the terms of this Agreement commencing from the date you join and comprises of:
(a) No Onboarding fee; and
(b) No Ongoing Monthly Access & Support fee.
2.2 Provision of Platinum Property Membership
TPF agrees to provide you with, and you agree to receive, the Platinum Property Membership on the terms of this Agreement commencing from the date you join and comprises of:
(a) the Onboarding fee (once only); and
(b) the Ongoing Monthly Access & Support fee.
3 Fees and expenses for Platinum Property Membership
3.1 Payment of fees
You agree to pay fees to TPF for the services provided to you under this Agreement in accordance with term 3.2
3.2 Onboarding & Monthly Support fees
(a) For the once only Onboarding fee, $998 is immediately due and payable by you to TPF on the Execution Date (unless specified otherwise by way of special price offer authorised by The Property Factory).
(b) For ongoing monthly access and support, monthly payments of $98 will be payable by you to TPF (unless specified otherwise by way of special price offer authorised by The Property Factory), the first monthly payment being payable 1 month after the Execution Date and every subsequent payment payable on the same date of each subsequent month.
(c) If the Execution Date is on the 31st day of the month, payment will be payable on the 30th day of each month which does not have 31 days.
(d) If the Execution Date is on the 29th, 30th or 31st day of the month, payment in the month of February will be payable on the 28th day in February.
(a) If you instruct TPF to engage third-party service providers on your behalf, any expenses incurred by TPF from the third-party service provider will be immediately payable by you.
4 Default and Termination
4.1 Cancellation of this Agreement
You may terminate this Agreement at any time by cancelling directly through the TPF website.
Subject to term 4.3, if you terminate this Agreement pursuant to term 4.1:
(a) the fee of $998 (paid by Platinum Members) for the onboarding fee:
(i) will be non-refundable; or
(ii) where it has not yet been paid, will become immediately due and payable; and
(b) for the ongoing monthly access and support, all monthly payments accrued under clause 3.2(b) will be immediately due and payable including the month in which notice of termination was provided to TPF by you (any partial month will be pro-rated).
4.3 Events of default
(a) fail to comply with any provision of the Agreement;
(b) are a corporation and:
(i) you suspend payment of debts generally;
(ii) you are or become unable to pay your debts when they are due or are unable to pay your debts within the meaning of the Companies Act 1993;
(iii) an analogous or equivalent event to any listed above occurs in any jurisdiction; or
(c) are an individual who dies or becomes of unsound mind, bankrupt or enters into any arrangement or composition with his or her creditors or proposes to do so, then you are in default.
(d) you attempt to enter into a contract a purchase a property that has been marketed and/or introduced to you by TPF by attempting to deal directly with the vendor or another marketer of the said property and not through TPF; or you attempt to negotiate different terms with the vendor, than what have been agreed between TPF and the vendor and provided to you by TPF; or you attempt to do anything that undermines, compromises or causes conflict in the relationship between TPF and its builders, developers or vendors by acting in an unethical or deceptive manner and in breach of the intention of this clause.
(e) you market, copy, distribute or publicly promote TPF information, content, resources or property investment opportunities to other parties that are not legitimate, registered Wholesale Property Members or Platinum Property Members.
4.4 Notice of default
If you are in default by virtue of term 4.3(a), TPF may serve a written notice on you that:
(a) specifies the default;
(b) states that the Agreement will be ended without further notice unless the default is remedied and all the expenses, including proper and reasonable legal costs, are paid; and
(c) allows at least 10 Business Days for the remedy of the default and payment.
4.5 Rights of TPF not affected
The rights of TPF under this term 4 are in addition to any other rights or remedies TPF may have at law or otherwise.
4.6 Termination of Agreement does not affect TPF’s accrued rights
The termination of the Agreement under this term 4 does not affect any accrued rights of TPF.
5 Limitation of liability
(a) To the maximum extent permitted by law, in no event will TPF be liable to you or your agents for any liability, claim, direct loss or outgoing suffered or incurred by you as a result of:
(i) you purchasing or not purchasing a Property recommended by TPF;
(ii) the poor investment return performance of a Property recommended by TPF (including rent yield and capital appreciation);
(iii) any variance from any projections, or statements of future events, made by TPF in relation to a Property;
(iv) your failure to choose a Property recommended by TPF or the Properties recommended by TPF not meeting or exceeding your expectations;
(v) any defects, misrepresentations made by third-parties or any other shortcomings in relation to any Property you purchase which was recommended by TPF;
(vi) failure of TPF’s systems, including information technology and business systems;
(vii) any advice provided or recommendation made by TPF which you have relied upon;
(viii) any finance acquired by you in connection with this Agreement;
(ix) any services provided by third-party service providers whether or not the third-party service provider was recommended or engaged by TPF; and
(x) any instance where you do not hold insurance or do not hold adequate insurance.
(b) You acknowledge that term 5(a) is an essential element of this Agreement and a reasonable allocation of risk between the parties, and that in the absence of such limitations the other provisions in these Terms would be substantially different.
6 Warrantees and acknowledgements
(a) You acknowledge that:
(i) any advice provided by TPF is not intended to and does not constitute financial product advice or credit assistance of any kind;
(ii) all referrals to third-party service providers in relation to the provision of finance is a mere referral meaning that TPF will never act as a credit intermediary, provide you with credit assistance or engage in a credit activity (acting as mortgagee);
(iii) TPF is not qualified to provide, and will not provide you with, financial advice or credit assistance;
(iv) TPF will not, at any time, assess whether purchasing of a Property, or acquiring finance, is appropriate to you, your financial needs or your personal circumstances;
(v) you should seek advice from a suitable qualified adviser before deciding to purchase a Property or to acquire finance;
(vi) you will make an independent assessment of whether or not you can afford any acquisition of finance including sustaining changes in interest rates;
(vii) you should consider your own personal objectives and circumstances before deciding to purchase a Property or to acquire finance;
(viii) you must independently assess the quality and adequacy of any third-party service provider recommended by TPF;
(ix) TPF does not and will not advise you in relation to personal or general insurance and you will obtain your own advice to ensure you are adequately insured; and
(x) You understand that TPF may receive remuneration from third-party service providers to whom TPF recommends or refers you.
(b) You warrant to TPF that:
(i) you currently have the intention to acquire Property;
(ii) any information provided by you used by TPF to determine your ability to invest in property is true and correct and not misleading or deceptive in any particular; and
(iii) you have the power and capacity to enter into this Agreement and to completely perform your obligations under this Agreement.
7 Dispute Resolution
Subject to term 7.5, if a dispute arises between you and TPF in connection with the Agreement (Dispute), the relevant dispute resolution procedures in this term 7 must be complied with prior to the initiation of any action or proceeding.
7.2 Dispute Notice
(a) A party wishing to resolve a Dispute must give notice in writing to the other party specifying reasonable details of the Dispute and requiring resolution of the Dispute by the parties under this term 7 (Dispute Notice).
(b) The Dispute Notice must state that a Dispute has arisen and identify the matters in dispute.
7.3 Good Faith Discussions
(a) Within 5 Business Days after the date on which a Dispute Notice is received by a party, each Disputing Party must appoint a director or representative of that party to promptly meet and engage in good faith discussions with the objective of resolving the Dispute by agreement.
(b) If, and only after a period of 5 Business Days after the date on which a Dispute Notice is received, the Disputing Parties have not been able to resolve the Dispute, any party may refer the Dispute to arbitration in accordance with term 7.4 only where the total potential claim exceeds $25,000.
7.4 Arbitration procedures
The following procedure will apply in respect of an arbitration:
(a) the arbitration procedure shall take place in Christchurch, New Zealand;
(b) the arbitration shall be presided over by one arbitrator;
(c) a party wishing to refer the Dispute to arbitration must give notice to the other party in writing (Arbitration Notice);
(d) the arbitrator is to be appointed by agreement between the parties;
(e) if within 14 days of the Arbitration Notice, the parties cannot agree on the appointment of an arbitrator, the Dispute shall be determined by an arbitrator appointed by the chairman, from time to time, of the New Zealand Law Society.
(f) the fees and expenses of the arbitration will be borne by you unless the arbitrator determines that TPF should bear a portion of the fees and expenses; and
(g) the arbitrator’s decision will, in the absence of manifest error, be final and binding on the parties.
This term 7 does not prejudice the rights of a party at any time to seek injunctive, declaratory or other interlocutory relief (including for specific performance) against the other party in order to protect or preserve its rights under the Agreement.
8.1 General indemnity
You agree to indemnify TPF against any liability, claim, direct loss or outgoing suffered or incurred by TPF, arising from or in connection with any breach of these terms, fraud, lack of good faith, gross negligence or wilful misconduct by you, or your agents except to the extent that the liability was caused by TPF, its officers, employees or agents.
8.2 Indemnity for engaging third-party service providers
You agree to indemnify TPF against any expense, liability, claim, direct loss or outgoing suffered or incurred by TPF, arising from or in connection with any instruction given by you to TPF to engage a third-party service provider on your behalf except to the extent that the liability was caused by TPF, its officers, employees or agents.
9.1 Obligations of confidentiality
Subject to term 9.2, you undertake and agree:
(a) not to disclose any Confidential Information, directly or indirectly, in any form to anyone else;
(b) not to use or make a copy of any Confidential Information except to:
(i) acquire or check information in connection with the Agreement and the services contemplated by it; or
(ii) perform any of your obligations under these terms and conditions or the Agreement or in relation to any of the services contemplated by it;
(c) to use your reasonable endeavours to:
(i) keep effective control of Confidential Information;
(ii) ensure that Confidential Information is secure from theft, loss, damage or unauthorised access or alteration; and
(iii) ensure that persons other than the parties to the Agreement do not disclose, use or copy Confidential Information except as permitted by this term 9;
(d) to deliver to TPF all copies of documents containing Confidential Information and all materials relating to it or provided under the Agreement immediately on demand by TPF;
(e) to procure where applicable any necessary written undertakings from your agents, advisers or lenders as may reasonably be required by TPF to maintain confidentiality in the Confidential Information;
(f) not to, without prior written consent of TPF:
(i) develop or use any service or process based on the Confidential Information; or
(ii) use or disclose to a third party any aspect of the Confidential Information for the purpose of contacting or contracting with any employee, service provider or client of TPF.
9.2 Exceptions to obligations of confidentiality
The obligations in term 9.1 do not apply if:
(a) TPF has first agreed in writing to the particular disclosure, use, or copying of the Confidential Information;
(b) the disclosure is made to a third-party service provider who is engaged by you to provide a service which will assist you to purchase, or to decide to purchase, a property, but only where the service provider needs to know the information to perform his or her duties, and if TPF requires, that person makes or is subject to an undertaking to TPF:
(i) not to disclose any of the Confidential Information, either directly or indirectly, in any form to anyone else; and
(ii) only to use the Confidential Information in a manner consistent with term 9.1 for the limited purposes of performing his or her duties; or
(c) you are required by law to disclose the Confidential Information, and notice is promptly given to TPF of that requirement and you only disclose that portion of the Confidential Information which it is legally required to be disclose; or
(d) you are required to comply with any applicable law or requirement of any Governmental Agency or regulatory body (including any relevant stock exchange), and you promptly give notice of your intended disclosure to, and consult with, TPF to the extent practicable, and uses your reasonable endeavours consistent with your obligations to minimise any such disclosure and to ensure that any Confidential Information so disclosed will be treated as confidential; or
(e) disclosure is expressly permitted by the Agreement.
9.3 Confidentiality of the Agreement and announcements
Subject to term 9.2, you must treat the existence and terms of the Agreement as Confidential Information and no announcement or communication relating to the negotiations of the parties or to the existence, subject matter or terms of the Agreement may be made or authorised by a party.
9.4 Breach of Confidentiality
You agree to indemnify and hold harmless TPF against all costs, liability, losses and claims incurred by TPF as a result of a breach by you, your employees, agents and advisers of this term 9.
You acknowledge that, without in any way compromising TPF’s right to seek damages or any other form of relief in the event of a breach of this term 9, TPF may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain you, your employees, agents, advisors and lenders from any breach or threatened breach of this term 9.
10 Privacy Notice
The Property Factory
Level 1, 83 Victoria Street, Christchurch, New Zealand
11 Intellectual Property
11.1 Intellectual property of TPF
(a) Any modifications or enhancements to the TPF’s Intellectual Property are also to be treated as TPF’s Intellectual Property.
(b) TPF will own all rights in and to the Intellectual Property made available to you by or on behalf of TPF (Intellectual Property Rights).
(c) You warrant and agree:
(i) to abide by and preserve the Intellectual Property and Intellectual Property Rights of TPF, and of all relevant third parties;
(ii) to assign to TPF at no cost, all existing and future rights in any Intellectual Property generated in connection with the Agreement by you or on your behalf for or on behalf of TPF, including any modification or enhancement to TPF’s Intellectual Property made by you or on your behalf;
(iii) to do all things and execute all documents requested by TPF to further assure the rights assigned under this term 11;
(iv) to deliver to TPF all copies of or documents containing TPF’s Intellectual Property and all material relating to it or provided under the Agreement immediately on demand by TPF and, without limitation, within 14 days of the expiration of the Agreement.
(d) During the term of the Agreement, TPF grants you a non-exclusive, non-transferable, royalty free, licence to use TPF’s Intellectual Property solely to the extent directly necessary for the purpose of performing your obligations under the Agreement.
12.1 Form of Notice
Any demand, notice, consent, approval or other communication as between the parties may be made or given by a party or the legal representative for that party provided that it is:
(a) in legible writing, in English and addressed to the intended recipient; and
(b) signed by the sender (if an individual) or by a representative of the sender; and
(c) given to the addressee by:
(i) delivery in person; or
(ii) post to, or leaving at, that party’s address for service; or
(iii) sending by email to the party’s usual email address; and
(d) regarded as being given by the sender and received by the addressee:
(i) if by delivery in person or by being left at the party’s address for service, upon delivery;
(ii) if by post, two (2) Business Days from and including the date of posting by ordinary prepaid post in respect of an address for service within New Zealand and twenty one (21) Business Days in respect of other any address; or
(iii) if by email, when the recipient’s email server receives the sender’s email, evidence of which will be a record of the sent email retained by the sender’s email server unless evidence can be produced by the recipient’s email server to demonstrate otherwise;
but if the delivery or receipt occurs on a day which is not a Business Day or at a time after 5.00 pm (both the day and time being in the place of receipt) it is regarded as having been received at 9.00am on the next following Business Day.
12.2 Address for service
(a) For the purposes of this term 12, a party’s address for service shall be:
(i) the party’s postal address or email address (if any) provided to the other party; or
(ii) if that party has notified the sender of a change of postal address or changed its email address, the address or email address last so notified.
(b) If the party is a company, the party’s address for service shall also include its registered office.
13 General terms
13.1 Survival of terms
The following terms of these terms and conditions survive the conclusion or termination of the Agreement:
(a) Term 5: Limitation of liability;
(b) Term 6: Warrantees and acknowledgements;
(c) Term 7: Dispute resolution;
(d) Term 8: Indemnity;
(e) Term 9: Confidentiality;
(f) Term 10: Privacy;
(g) Term 11: Intellectual property; and
(h) Term 13: General terms.
13.2 Inconsistent terms
If a term of this Agreement is inconsistent with any terms and conditions contained in any other document, agreement, or contract between the parties, whether verbal or in writing, that relates to the same subject matter, this Agreement will prevail over any such terms to the extent of the inconsistency. This Agreement overrides TPF’s Terms and Conditions in relation to the Concierge Service.
13.3 Further assurances
Each party will promptly execute all documents and do all things that another party from time to time reasonably requires of it to effect, perfect or complete the terms and conditions of the Agreement and any services contemplated by it.
The rights and obligations of each party under the Agreement are personal. No party may assign, encumber or otherwise deal with such rights and obligations without the prior written consent of TPF.
Any consideration to be paid or provided for a supply made under or in connection with this Agreement is inclusive of GST, unless otherwise stated.
13.6 Costs and expenses
Each party must bear its own costs and expenses arising out of and in connection with the negotiation, preparation and execution of this Agreement.
The Agreement is to be governed by and construed in accordance with all applicable laws in force in New Zealand from time to time and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand
Where the Agreement is executed on behalf of a party by an attorney, that attorney by executing the Agreement declares and warrants that he or she:
(a) has been duly appointed; and
(b) has no notice of the power of attorney under the authority of which he or she executes the Agreement having been revoked.