Cotality NZ Data Supply License Agreement
What makes up this Data Supply Licence Agreement: The Cotality NZ Data Supply Licence Agreement is comprised of the following parts, which together constitute a single legally binding document:
- Data Procurement Schedule (or Data Procurement Schedules as the case may be); and
- General Terms and Conditions,
(together the ‘Licence’).
By signing the Data Procurement Schedule(s), you have accepted the terms of this Licence current as at the time of signing. Those terms supersede any other agreement, whether verbal or written, between the parties.
If there is any inconsistency between the Data Procurement Schedule and these General Terms and Conditions, the Data Procurement Schedule will prevail to the extent of the inconsistency.
TERMS AND CONDITIONS
Contents
- DEFINITIONS AND INTERPRETATION
- LICENCE AND RESTRICTIONS
- TERMS OF SUPPLY
- FEES
- CHANGES TO DATA
- TERM AND TERMINATION
- CONFIDENTIAL INFORMATION
- INTELLECTUAL PROPERTY
- PRIVACY
- WARRANTIES
- INDEMNITY AND LIABILITY
- PERSONNEL
- DISPUTE RESOLUTION
- EXCUSABLE EVENT
- GENERAL
1. DEFINITIONS AND INTERPRETATION
1.1. In addition to the definitions set out in section A, unless the context indicates otherwise:
Affiliate means, with respect to any particular entity (First Entity) an entity or individual that directly or indirectly controls, is controlled by, or is under direct or indirect common control with, the First Entity.
Confidential Information means (in any form, whether written, electronic or otherwise):
1.1.1. the terms of the Licence;
1.1.2. the finances, strategies, management or business operations of a party or its suppliers or customers;
1.1.3. any information which is treated as confidential by the party which owns the information; or
1.1.4. any information of a party which might reasonably be expected by that party to be confidential in nature;
but does not include any information which:
1.1.5. at the time of disclosure is generally available to, and known by, the public (other than as a result of a disclosure by a recipient);
1.1.6. is or becomes available to, and is legally and properly obtained by, the recipient from a source other than the disclosing party; or
1.1.7. is independently acquired or developed by the recipient without violating any of its obligations under this Agreement.
Cotality means CoreLogic NZ Limited.
Cotality Group means RP Data Pty Ltd, CoreLogic NZ Limited, CoreLogic UK Limited and all Affiliates of the aforementioned entities.
Council means the party identified in Section 1 of the Product Schedule.
Data means all updates during the Term to Sales Data and Property Data, including associated supporting data where this is recorded in the Data Procurement Schedule.
Data Description means the data described in Item 4 and Annexure A of the Data Procurement Schedule.
District means the district applicable to the Council, as defined in the Valuation Act.
District Valuation Roll means the Council's district valuation roll prepared under the Valuation Act.
Excusable Event means any act of God, explosion, fire, flood, subsidence, nuclear fusion, military operations, government restraint, expropriation, prohibition; intervention or change of legislation, regulation or policy, strikes, lockouts and other industrial disputes; or failure, malfunction or fluctuation in electrical power, heat, light or telecommunications equipment or services.
Fees means the fees payable, as set out in Item 7 of Section 2 of the Data Procurement Schedule, by Cotality for the supply by the Council of Data under this Agreement, as set out in respect of the Council specified in Section 1 of the Data Procurement Schedule to this Agreement and governed by clause 4 of these Terms and Conditions.
Format means Format means the format prescribed for the Property Data and Sales Data as set out in Item 6 of Section 2 of the Data Procurement Schedule of this Agreement.
GST means any goods and services tax payable under the Goods and Services Tax Act 1985.
Historical Licensed Data means data which substantially meets the Data Description supplied by the Council to Cotality prior to the Commencement Date.
Initial Period means the period stipulated in Item 2 of the Data Procurement Schedule.
Intellectual Property means any intellectual property, including, but not limited to, software, firmware, copyright, rights in inventions (including patents and patent applications), trademarks, brand names, plant variety rights, registered designs, know-how, trade secrets, and other proprietary rights which may arise from intellectual activity.
Mass Appraisal Data means all data to be maintained by or on behalf of the Council as part of its Mass Appraisal Data under the Rules, including any additional fields maintained by the Council or its Valuation Service Provider not included in Appendix D of the Rules.
National Property Database means the national property database previously maintained by the Valuation Department.
Permitted Purpose has the meaning given to it in the Data Procurement Schedule.
Personal Information has the meaning given to that term in the Privacy Act;
Privacy Act means the Privacy Act 2020;
Privacy Breach means any:
a) unauthorised or accidental access to or use of, or disclosure, alteration, loss, or destruction of, any Personal Information disclosed by one party to the other party in conjunction with the obligations of this Agreement; and
b) any action that prevents a party from accessing Personal Information disclosed by one party to the other party in conjunction with the obligations of this Agreement on either a temporary or permanent basis,
whether or not, caused in whole or in part by any action of a party to this Agreement.
Property Data means all data to be maintained by or on behalf of the Council in its District Valuation Roll; and as supporting data for its District Valuation Roll under the Rules, excluding the name of any person (unless it is necessary to identify the relevant Rating Unit) or any address other than the street address of the relevant Rating Unit.
QV means Quotable Value Limited.
Rating Unit has the same meaning as set out in the Valuation Act.
Rules means the Rating Valuations Rules issued from time to time under the Valuation Act.
Sales Data means all data to be maintained by or on behalf of the Council as part of its Sale Details under the Rules, excluding the name of any person (unless it is necessary to identify the relevant Rating Unit).
Term means the Initial Period and any applicable Renewal Period.
TORAS Codes has the same meaning as set out in Appendix J of the QIVS User Guide, as recorded sometimes by QV in its capacity as Valuation Service Provider.
Valuation Act means the Rating Valuations Act 1998.
Valuation Service Provider means the firm contracted by the Council to perform its rating valuation process.
Working Day means any day except Saturday, Sunday, a public holiday in New Zealand, the relevant Council's regional anniversary day, or any day in the period commencing on 24 December in any year and ending on 5 January the following year.
1.2. In this Agreement, unless the context requires otherwise:
1.2.1. references to parties are references to the parties to this Agreement;
1.2.2. references to "persons" include references to individuals, companies, corporations, firms, partnerships, joint ventures, associations, organisations, trusts, states or agencies of state, government departments and local and municipal authorities in each case whether or not having separate legal personality;
1.2.3. words importing the singular number will include the plural and vice versa;
1.2.4. any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done;
1.2.5. references to a statute include references to regulations, orders or notices made under that statute, and references to a statute or regulation include references to all amendments to that statute or regulation whether by subsequent statute or otherwise including a statute or regulation passed in substitution for the statute or regulation referred to or incorporating any of its provisions; and
1.2.6. references to clauses and sections are references to clauses and sections respectively of this Agreement.
2. LICENCE AND RESTRICTIONS
2.1. Subject to the terms of this Agreement and in consideration for the Fees, the Council hereby grants to Cotality a non-exclusive, transferable, sublicensable, irrevocable, worldwide, perpetual, royalty free license to access, use, reproduce, modify, adapt, publish, make derivative works, re-sell and commercialise the Data for the Permitted Purpose. This clause survives termination of the Agreement.
2.2. In circumstances where the Council has supplied to Cotality Historical Licensed Data, the terms and conditions set out in this Agreement including the grant of licence set out in clause 2.1 above apply to the ongoing use and retention of the Historical Licensed Data.
2.3. Upon termination or expiry of this Agreement, Cotality will not receive any further updates of the Data from the Council however will be entitled to retain and use for the Permitted Purpose the Data and any Historical Licensed Data supplied prior to the termination or expiry of the Agreement.
3. TERMS OF SUPPLY
3.1. The Council will deliver the Data in accordance with the requirements set out in item 6 of the Data Procurement Schedule.
3.2. Where QV is responsible for storing and/or managing Data on behalf of the Council, the Council agrees that Cotality may, at all reasonable times during the Term, access and obtain such Data from the records QV stores and/or manages for the Council for use in accordance with clause 2.1.
3.3. If any Data obtained by Cotality under this Agreement is lost, destroyed or damaged, the Council will, within five Working Days from receipt of a request by Cotality to do so, supply Cotality in the Format, a copy of such Data.
3.4. The Council will take all reasonable steps to ensure that all Data supplied to Cotality pursuant to this Agreement is free from all computer viruses.
4. FEES
4.1. In consideration of the supply by the Councils of the Data under this Agreement, Cotality will pay to the Council the Fees. Fees will be invoiced monthly by the Council and payable by Cotality to the Council in twelve equal monthly instalments in arrears during each year of the Term in accordance with this clause 4.
4.2. The Council will invoice Cotality for the Fees in 12 monthly instalments in arrears. Each invoice shall contain details of the Fees payable.
4.3. Subject to clauses 4.4 and 4.6 and the Council complying with clause 4.2, Cotality will pay the Council within 45 days of receipt of the Council’s invoice.
4.4. The Council agrees that Cotality may withhold payment of any monthly instalment of the Fees payable if, in respect of the month to which that monthly instalment relates, the Council:
4.4.1. did not supply all Data to Cotality in the Format; or
4.4.2. did not supply all of the Data required to be provided by that Council under this Agreement during that month.
4.5. Subject to clause 4.6, Cotality will pay to the Council any amount of a monthly instalment of the Fees withheld under clause 4.4 upon the Council remedying (to the reasonable satisfaction of Cotality) the applicable breach set out in clause 4.4 which gave rise to Cotality's right to withhold such amount of the monthly instalment.
4.6. The Council acknowledges and agrees that Cotality will not be required to pay any monthly instalment of the Fees where, the Council has failed to supply all of the Data required to be supplied during that month and failed to remedy that breach.
4.7. The Fees are (unless expressly recorded otherwise) inclusive of all taxes and levies except GST.
4.8. Fee Review: The parties acknowledge and agree that:
4.8.1. not less than 60 days prior to the end of the Initial Term or any Renewal Period, the Council may request in writing to review the Fees payable in the next Renewal Period;
4.8.2. within 14 Working Days of receipt of such notice or such other period agreed between the parties, Cotality agrees to meet with the Council (Fee Review Meeting);
4.8.3. at the Fee Review Meeting the parties will discuss in good faith the Fee increase applicable to the following Renewal Period, subject to the terms in clause 4.9 below;
4.8.4. any agreed increase to the Fees under this clause must be documented in writing and signed by both parties; and
4.8.5. if the parties cannot agree the changes to the Fees within 14 Working Days after the Fee Review Meeting or such other period agreed between the parties, the parties should attempt to resolve the dispute in accordance with clause 12 (Dispute Resolution).
4.9. The Council acknowledges and agrees that Cotality is a valued customer and as such, agrees that if the Fees (or proposed Fees under review) exceed the charges payable by other customers of the Council receiving similar services and/or deliverables to the Data being supplied to Cotality under this Agreement, then the Fees (or proposed Fees under review) will be reduced so that Cotality is paying no more than Council’s other rates for similar services and/or deliverables. Where the services and/or deliverables for another customer are similar to the Data being supplied under this Agreement but are materially less in volume (in respect of the type of data being made available), the Council agrees that it will not apply any materially less favourable pricing methodology (to Cotality) than that used when calculating the Fees (or proposed Fees under review), and if the Council does, it shall then apply a consistent pricing methodology to the comparable Data supplied under this Agreement and reduce the Fees accordingly. The Council must act in good faith when making any determinations of compliance under this clause 4.9.
5. CHANGES TO DATA
5.1. The parties acknowledge that the categories of information that constitute the Sales Data and Property Data may change from time to time. The Council will use its best endeavours to keep Cotality updated of any changes to the categories of information that the Council is required to keep in respect of its Property Data and Sales Data.
5.2. Where the Council is required by law to add a category of information to its Property Data or Sales Data and if such category is required by Cotality, Cotality and the Council will in good faith negotiate an appropriate increase in the Fees payable for the supply of the additional category of information and the parties shall record such increase in a written variation to this Agreement.
5.3. Where:
5.3.1. the Council is required by law to remove a category of information from its Sales Data or Property Data; or
5.3.2. the Council determines to make available any of its Sales Data or Property Data to the public via the internet free of charge,
Cotality and the Council will immediately negotiate in good faith an appropriate reduction in the Fees payable to reflect the decrease in the value to Cotality of the relevant Sales Data or Property Data and the parties shall record such reduction in a written variation to this Agreement.
5.4. Where the Council or Cotality is required or determines to make available any Sales Data or Property Data to any person as a result of, or in relation to, any request made by any person under the Local Government Official Information and Meetings Act 1987 (LGOIMA) or the Official Information Act 1982 (OIA), and at such cost consistent with the requirements of the LGOIMA or the OIA (as the case may be), Cotality and the Council will immediately negotiate in good faith an appropriate reduction in the Fees payable to reflect the decrease in the value of the relevant Sales Data or Property Data as a result of such data being made available at a cost materially less than the Council's or Cotality's charges for the supply of such data to a customer. The parties shall record such reduction in a written variation to this Agreement.
5.5. If a change in Fees under any of clauses 5.2 to 5.4 has not been agreed between Cotality and the Council within one month of the commencement of negotiations between Cotality and the Council, Cotality may immediately terminate this Agreement by giving written notice of such termination to the Council.
6. TERM AND TERMINATION
6.1. After the Initial Term, the Term will automatically extend for consecutive further periods as set out in Item 3 of the Data Procurement Schedule (each a Renewal Period) unless either party gives at least 180 days’ written notice prior to the end of the Initial Term or any Renewal Period of its intention not to renew this Agreement. Any such Renewal Period will form part of the Term.
6.2. Cotality or the Council (the first party) may terminate this Agreement immediately upon giving written notice of termination to the other if the other:
6.2.1. breaches any of its material obligations under this Agreement and that breach is not capable of remedy, or if capable of remedy, the relevant party fails to remedy the breach within twenty (20) Working Days after the first party has notified the other of such breach; or
6.2.2. suffers or threatens to suffer any form of insolvency or liquidation.
6.3. Cotality may terminate this Agreement immediately upon giving written notice to the Council if there is a change in any law or regulation which, in Cotality's reasonable opinion, adversely affects the value of this Agreement to Cotality.
6.4. Upon termination or expiry of this Agreement:
6.4.1. each party must return to the others all Confidential Information disclosed to that party by the other parties, except that where such Confidential Information is in a form incapable of return or has been copied or transcribed into another document, it will be destroyed or erased, as appropriate;
6.4.2. no further payment of any monthly instalments of the Fees will be due, except the monthly instalments that relate to the period up to the date of termination or expiry. The final monthly instalment will be adjusted in proportion to the number of days in the relevant month until the date of termination or expiry as a percentage of the total number of days in that month; and
6.4.3. Cotality will be entitled to continue to use any of the Data for the Permitted Purposes.
6.5. Cotality will, following termination or expiry of this Agreement, be entitled to use any Property Data and Sales Data which are generally available to the public or have been obtained by Cotality from any person other than a party to this Agreement.
6.6. Termination of this Agreement does not affect any accrued rights, obligations or liabilities of the parties.
7. CONFIDENTIAL INFORMATION
7.1. Each party must at all times:
7.1.1. keep confidential all of the Confidential Information of each other party that it holds and not use or allow to be used or reproduce any such Confidential Information other than for the purposes of this Agreement;
7.1.2. only disclose Confidential Information of another party to its employees, agents, consultants or contractors who need to know the Confidential Information for the purposes of or as contemplated by this Agreement or to enforce any rights under this Agreement;
7.1.3. not disclose any Confidential Information of another party to any third party; and
7.1.4. ensure that its employees, agents, consultants, and contractors are aware of and are bound by the duty of confidence that is owed by that party to each other party.
7.2. If a party becomes aware of any disclosure or distribution of Confidential Information in breach of this Agreement, that party will promptly notify the others (or, in the case of Cotality, Cotality shall notify the Council), and the relevant parties shall provide all reasonable assistance in connection with any proceedings which may be brought in respect of such disclosure or distribution.
8. INTELLECTUAL PROPERTY
8.1. The parties agree that any existing Intellectual Property in the Data, which is not created or developed under or in connection with this Agreement, will remain the property of its current owner.
8.2. The Council acknowledges and agrees that Cotality will own all Intellectual Property created or developed by it under or in connection with this Agreement (including, without limitation, any Intellectual Property in any modifications or additions to the Data).
9. PRIVACY
9.1. Where a party has access to Personal Information disclosed to it under or in connection with this Agreement, that party must:
9.1.1. only use, access, store, process or transmit the Personal Information to the extent necessary for provision of the supply of the Data and the Permitted Purpose;
9.1.2. ensure that the Personal Information is protected against loss, access, use, modification, or disclosure that is not authorised by this Agreement;
9.1.3. provide all information and assistance reasonably required by the disclosing party to comply with its obligations under the Privacy Act in relation to this Agreement; and
9.1.4. comply with the Privacy Act and not do anything under this Agreement that would cause the disclosing party to breach the Privacy Act.
9.2. If a party becomes aware of any Privacy Breach in relation to the Personal Information disclosed to it under or in connection with this Agreement, it will notify the other party as soon as possible and will co-operate with the disclosing party in taking steps to remedy the Privacy Breach.
9.3. In the event of a Privacy Breach, the parties will cooperate with each other and will take all reasonable steps:
9.3.1. to identify the person(s) affected;
9.3.2. to stop, and/or mitigate the impact of, any Privacy Breach and prevent its reoccurrence; and
9.3.3. to assist with any necessary investigation.
9.4. The parties will consult each other before notifying any person of the Privacy Breach.
10. WARRANTIES
10.1. In addition to any conditions and warranties that may be implied by operation of law, each party warrants that:
10.1.1. it holds full authority to enter into this Agreement and will maintain such authority throughout the Term; and
10.1.2. it will perform its obligations under this Agreement with reasonable skill and care.
10.2. The Council warrants that, throughout the Term:
10.2.1. it has the right and authority to provide Cotality with its Data and allow Cotality to use such Data on the terms and conditions set out in this Agreement; and
10.2.2. use of its Data in accordance with this Agreement will not infringe the Intellectual Property rights of any person.
10.3. The Council will use its best endeavours to ensure that all Data it supplies to Cotality is:
10.3.1. accurate, complete, supplied in the Format, free of material errors or defects, and up-to-date; and
10.3.2. consistent with the relevant requirements of the legislation it is prepared and maintained under (including, without limitation, the Rules).
10.4. If the Council becomes aware, or Cotality notifies the Council, that any Data obtained by Cotality fails to meet any of the requirements set out in this Agreement (including, without limitation, those set out in clause 10.3 above), the Council as soon as practicable will remedy such Data so that it complies with all such requirements.
11. INDEMNITY AND LIABILITY
11.1. The parties agree that the total liability of each party under this Agreement for any event or series of related events, to the extent that such liability is not excluded by clause 11.2 below, and whether that liability arises under contract, tort, equity, for breach of any statute or in any other action, will not (to the fullest extent permitted by law) exceed an amount equal to three times the Fees paid by Cotality under this Agreement except in the case of a breach of clause 7 or clause 9.2.
11.2. No party will be liable to any other party for any indirect or consequential losses suffered or incurred by the other party directly or indirectly as a result of any act or omission of that party in relation to this Agreement.
11.3. Subject to clauses 11.1 and 11.2 above, the Council indemnifies Cotality and its employees, contractors and agents, against all losses, damages, liabilities, claims and expenses (including but not limited to reasonable legal costs and defence or settlement costs) arising directly or indirectly from any breach by the Council of its obligations or warranties under this Agreement.
12. PERSONNEL
Each party has appointed and will make available the contact persons specified in Section 1 of the Data Procurement Schedule (or as otherwise notified in writing by a party from time to time). Such persons will be responsible for managing the relationship with the other parties. Each contact person will also be responsible for resolving any issues that arise under this Agreement relating to the supply, availability and Format of the Data.
13. DISPUTE RESOLUTION
13.1. In the event of any dispute arising between any parties to this Agreement, no party may commence any proceedings relating to the dispute (except where a party seeks urgent interlocutory relief) unless the relevant parties have first made genuine efforts to resolve the dispute in accordance with this clause 13.
13.2. Where a party receives a notice of dispute from another party (or parties) to this Agreement, the relevant parties agree to follow the following resolution process:
13.2.1. the contact persons named in Section 1 of the Data Procurement Schedule will attempt to resolve the dispute to the satisfaction of the relevant parties within twenty (20) Working Days of a party receiving notice of the dispute;
13.2.2. if the dispute is not resolved under clause 13.2.1, the relevant parties’ Chief Executives (or equivalent) will try to resolve the dispute to the satisfaction of all parties to the dispute within a maximum of seven Working Days from the date the dispute is referred to them; and
13.2.3. if the dispute is not resolved under clause 13.2.2, then any party to the dispute may refer the matter to mediation. The parties to the dispute will appoint a mediator agreed by those parties, or failing such agreement, approved by LEADR (Lawyers Engaged in Alternative Dispute Resolution) (or its successors). The parties to the dispute will bear their own mediation costs and will equally share the mediator's costs.
13.3. Pending the outcome of the process set out in clause 13.2, the parties agree to perform their obligations under this Agreement in all respects, including, as applicable, performance of the matter which is the subject of dispute.
14. EXCUSABLE EVENT
14.1. An obligation of a party under this Agreement will be suspended during the time and to the extent the party is prevented from or delayed in complying with that obligation by an Excusable Event (Affected Party).
14.2. The Affected Party must notify the other party of the details of the Excusable Event and use reasonable endeavours to minimise the effects of it.
14.3. If a delay or failure by the Council to perform its obligations due to an Excusable Event exceeds 40 Working Days, Cotality may immediately terminate this Agreement by giving the Council written notice of such termination.
15. GENERAL
15.1. The Council may not assign any of its rights under this Agreement without Cotality's prior written consent. Such consent will not be arbitrarily or unreasonably withheld or delayed.
15.2. The Council will comply with all laws including, without limitation, the Privacy Act 2020.
15.3. Any notice or other communication under this Agreement must be in writing, must be made by personal delivery, email or by post to the contact person at the, address or email address set out under its name in Section 1 of the Data Procurement Schedule, and must be marked for the attention of the contact person. Communications will be deemed (in the absence of evidence to the contrary) to be received: in the case of a letter, on the second Working Day after posting, in the case of or personal delivery, on the Working Day on which it is despatched or delivered (as the case may be) or if despatched or delivered after 5.00pm on a Working Day or on a non- Working Day (in the place of receipt), on the next Working Day after the despatch or delivery and, in the case of delivery by email, at the time specified in the email transmission which was not returned as undeliverable or as containing any error.
15.4. If any provision contained in this Agreement is held to be illegal, invalid or unenforceable it will be severable, will be deemed to be deleted from this Agreement and will not affect the validity or enforceability of the other provisions of this Agreement.
15.5. This Agreement is governed by the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
15.6. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all prior understandings or agreements between any of the parties in respect of that subject matter.
15.7. Nothing in this Agreement will be deemed to constitute Cotality a partner of any other party and no other party will, or will have the authority to, act on behalf of Cotality or to assume any obligation or liability on behalf of Cotality.
15.8. Clauses 2, 6, 7, 8, 9, 10, 11 and 14 will survive the termination or expiry of this Agreement.
15.9. This Agreement may not be varied except by agreement in writing signed by all parties.
15.10. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which taken together will constitute a single instrument. Any party may enter this Agreement by executing such a counterpart. Copies of an executed Agreement will be sufficient evidence that an original of the Agreement has been executed.