Last updated 9th March 2018
Agreement means these Terms and the Schedule, in each case as may be amended from time to time;
Confidential Information includes all information exchanged between the parties, whether in writing, electronically or orally, but does not include information that:
(a) is, or becomes, publicly available other than through unauthorised disclosure by the other party; or
(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(d) is independently developed without access to the relevant information;
Commencement Date means the commencement date specified in the Schedule;
Customer means the person named in the Schedule as the “Customer”;
Data means any data inputted by you (or on your behalf) into Palace;
Fees means the fees payable under the Agreement;
Intellectual Property Right means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world, whether or not registered;
Palace means the Palace property management software developed by us (including all modifications, upgrades or developments to that software);
parties means the Customer and us and party has a corresponding meaning;
Schedule means the schedule to these Terms entered into by the Customer and us;
User means any person or entity, other than the Customer, that uses Palace with the authorisation of the Customer from time to time;
we means Realbase Limited and each of our and us has a corresponding meaning;
Website means the website through which Palace may be accessed from time to time, currently www.getpalace.com; and
you means the Customer and, where the contexts permits, each User, and your has a corresponding meaning.
The Agreement commences on the Commencement Date and continues until terminated by the relevant party pursuant to clause 14.
3. Training and implementation assistance
We will provide the training and/or implementation assistance (if any) specified in the Schedule, with the fees payable for that training and/or implementation assistance specified in the Schedule or, if not so specified, based on our then-current rates.
4. Use of Palace
4.1. We grant you a non-exclusive, non-transferable licence to use Palace in accordance with the Agreement.
4.2. The Customer is responsible for each act or omission of the Users.
5. Fees and payment
5.1. You must pay all Fees by the date specified in the Schedule, or if not so specified, by the 25th of the month following the date of the relevant invoice, time being of the essence.
5.2. All payments of Fees must be made without deduction or set-off of any kind.
5.3. If an amount is not paid by the due date, we may charge interest on that amount at 10% per annum (calculated on a daily basis) from the due date to the date of actual payment.
5.4. If you dispute an invoice or any part of an invoice, you must notify us in writing within seven days of receiving the invoice of the reason for the dispute. You must pay the portion of the invoice that is not in dispute.
6. Your obligations
6.1. You must only use Palace and the Website for your business.
6.2. You must not:
(a) attempt to undermine the security or integrity of Palace or the Website; or
(b) use Palace or the Website in any way that may impair the functionality of Palace or the Website or may impair the ability of any person to use Palace or the Website; or
(c) transmit, or input into the Website, 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 that you do not have the right to use); or
(d) attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer Palace.
7. Our rights
7.1. We reserve the right to carry out modifications, upgrades or developments to Palace from time to time.
7.2. We reserve the right to make amendments to the Agreement at any time (including the Fees), effective upon the posting or notification of the amendments and we will make every effort to communicate these changes to you via email or notification via the Website.
8. Intellectual property and Data
8.1. Title to, and all Intellectual Property Rights in Palace, the Website and any documentation relating to Palace remain our property. Your sole right in relation to those Intellectual Property Rights is the right granted in clause 4.1. You must not, nor permit any other person to, copy, alter, modify, reproduce, reverse assemble, reverse compile, enhance Palace or any documentation relating to Palace.
8.2. Title to, and all Intellectual Property Rights in, the Data remain your property. Your access to the Data is, however, contingent on all amounts payable by you to us under the Agreement having been paid in full.
8.3. You grant us a licence to use, copy, transmit, store, and back-up the Data for the purposes of enabling you to access and use Palace and the Website and for any other related purpose.
8.4. You must maintain copies of all Data. You are solely responsible for ensuring the accuracy and completeness of Data (whether inputted by you or on your behalf).
8.5. We have no liability for any loss of Data however caused. In particular, if you enable third-party applications for use in conjunction with Palace, you acknowledge that we may allow the providers of those third-party applications to access the Data as required for the interoperation of such third-party applications with Palace. We are not responsible for any disclosure, modification or deletion of the Data resulting from any such access by third-party application providers.
9. Warranties and acknowledgments
9.1. You acknowledge that:
(a) access to, and use of, Palace and the Website are on an “as is” basis and at your own risk;
(b) we give no representation or warranty about Palace or the Website (including that the use of either or both will be interrupted or error free, or that they will be suitable for any particular purpose or meet your requirements); and
(c) all implied conditions or warranties are excluded in so far as is permitted by law, including warranties of merchantability, fitness for purpose, title and non-infringement.
9.2. You represent and warrant that you are using Palace and the Website for the purpose of a business and agree that the Consumer Guarantees Act 1993 does not apply to the Agreement.
10. Limitation of liability
10.1. To the maximum extent permitted by law, we exclude all liability and responsibility to you (or any other person) in contract, tort (including negligence) or otherwise for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, Palace or the Website (including the accuracy and/or completeness of Data).
10.2. If you suffer loss or damage as a result of our negligence or failure to comply with the Agreement, any claim by you against us arising from our negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by you to us in the previous 12 months.
11. Service availability
11.1. For technical problems, you should make all reasonable efforts to investigate and diagnose problems before contacting us, including by reviewing the information available at the Palace Support Center at https://support.getpalace.com/hc/en-us. If you still need technical help, please:
(a) submit a support request through the Website or by calling us on 0800 472 5223 (from New Zealand) or 1800 446 180 (from Australia); or
(b) email us at email@example.com.
11.2. Although Palace is intended to be available 24 hours a day, seven days a week, it is possible that Palace or the Website may from time to time be unavailable to permit maintenance or other development activity to take place.
11.3. If Palace is unavailable for a longer period than we would normally expect, we will use reasonable endeavours to publish in advance details of such interruption on the Website.
Neither party will use or disclose any Confidential Information of the other party or use that Confidential Information for its own benefit except:
(a) with the prior written consent of that other party; or
(b) to the extent required by law; or
(c) to the extent necessary to obtain the benefit of, or to carry out obligations under, the Agreement.
14. Termination and breach
14.1. Either party may terminate the Agreement at any time by giving at least one month’s written notice to the other party.
14.2. Without prejudice to any other remedy we may have, if:
(a) you breach the Agreement and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied; or
(b) you breach the Agreement and the breach is not capable of being remedied (which includes the failure to pay any Fees by the relevant due date); or
(c) you or your business become insolvent or your business goes into liquidation or has a receiver or manager appointed of any of its assets or you become insolvent or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction,
we may take any or all of the following actions, at our sole discretion:
(d) terminate the Agreement and your use of Palace and the Website;
(e) suspend, for any definite or indefinite period of time, your use of Palace and the Website;
(f) suspend or terminate access to all or any Data; and
(g) take any or all of the actions in paragraphs (d), (e) and (f) in respect of any or all other persons whom you have authorised to have access to your information or Data.
14.3. Termination of the Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. With effect from termination of the Agreement, you:
(a) must cease to use Palace and the Website; and
(b) cease to have any right to access the Data.
Clauses 5, 8.1, 9, 10, 12, 13 and 16, and this clause 14.3, survive termination of the Agreement.
Any notice given under the Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to us must be sent to firstname.lastname@example.org or to any other email address notified by email to you by us. Notices to you will be sent to the email addresses specified by you in the Schedule, although a notice sent to only the “Administrator” specified by you in the Schedule is sufficient to constitute valid notice to you under the Agreement.
16.1. The Agreement constitutes the entire agreement between you and us relating to Palace and the other matters dealt with in the Agreement.
16.2. If either party waives any breach of the Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
16.3. Neither party is liable for any delay or failure in performance of its obligations under the Agreement if the delay or failure is due to any cause outside its reasonable control (including delays or failures caused by third party suppliers). This clause does not apply to any obligation to pay money.
16.4. You may not assign or transfer any rights to any other person without our prior written consent. We may assign or transfer any or all of our rights and benefits under the Agreement or transfer any or all of our rights, benefits and obligations under the Agreement, in each case without your consent.
16.5. If any part or provision of the Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision that, as far as possible, accomplishes the original purpose of that part or provision. The remainder of the Agreement will be binding on the parties.
16.6. A person who is not a party to the Agreement has no right to benefit under, or to enforce any term of, the Agreement.
16.7. If there is any conflict or inconsistency between the Schedule and these Terms, the Schedule prevails to the extent of that conflict or inconsistency.
16.8. The Agreement is governed by New Zealand law and the parties submit to the exclusive jurisdiction of the courts of New Zealand.