New Zealand Real Estate Trust - Terms of Use
THESE TERMS EXPLAIN SAFEKIWI'S OBLIGATIONS AS A SERVICE PROVIDER AND THE OBLIGATIONS OF VENDORS AND PURCHASERS AS USERS OF NZRET. PLEASE READ THESE TERMS CAREFULLY AND TAKE ADVICE ABOUT THEM. SAFEKIWI WILL NOT CHANGE THESE TERMS OF USE WITHOUT THE PRIOR AGREEMENT OF PUBLIC TRUST.
Introduction
NZ Real Estate Trust ("NZRET") is an independent trust account service which is operated by SafeKiwi (New Zealand) Limited ("SafeKiwi").
The Trust Account is held and operated by and in the name of Public Trust on behalf of Vendors and Purchasers. The role of Public Trust is regulated between SafeKiwi and Public Trust by a Custodial Agreement, which cannot be changed without Public Trust's agreement.
Vendors and Purchasers become bound by these Terms when they sign a sale and purchase agreement which includes a clause under which the parties agree to use NZRET and to be bound by these Terms.
No change to these Terms will apply to a Transaction which has already begun to use NZRET.
SafeKiwi has a privacy policy that sets out Clients' obligations in respect of data and information. By accepting these Terms, Clients acknowledge they have read and understood the privacy policy at www.realestatetrust.co.nz/legal.
1. Interpretation: For the purposes of these Terms:
"ADLS Form" means the current edition of the Agreement for Sale and Purchase of Real Estate published jointly by the Real Estate Institute of New Zealand Incorporated and Auckland District Law Society Incorporated.
"Lawyer" is deemed to also refer to a Licensed Conveyancer.
"NZRET" means NZ Real Estate Trust.
"Payment" means the payment of a deposit pursuant to a Transaction.
"Purchaser" means a purchaser under a Transaction (and includes a nominee of the original named purchaser).
"Real Estate Agent" means a person licensed as a real estate agent pursuant to the Real Estate Agents Act 2008.
"SafeKiwi" means SafeKiwi (New Zealand) Limited.
"Services" has the meaning set out in clause 2 of these Terms.
"Transaction" has the meaning given to that term by the Real Estate Agents Act 2008.
"Trust Account" means the bank account in the name of Public Trust where money is held in trust on behalf of Vendors and Purchasers until it is released in accordance with these Terms.
"Trust Funds" means money deposited into the Trust Account.
"Vendor" means a vendor under a Transaction.
"Working Day" has the meaning assigned to that term in the ADLS Form.
2. The NZRET Service: NZRET is an independent trust account service provided by SafeKiwi subject to these Terms.
3. Vendor and Purchaser Obligations: The following are the obligations of Vendors and Purchasers in respect of their use of NZRET:
(a) The parties' designated New Zealand bank accounts must be notified to SafeKiwi by the Real Estate Agent as required by SafeKiwi;
(b) the parties each authorise SafeKiwi and its authorised agents to initiate entries into the parties' designated bank accounts for the making of the Payment under the Transaction and to disburse commission to the relevant Real Estate Agent;
4. SafeKiwi Rights and Obligations: SafeKiwi:
(a) Must direct Real Estate Agents to deposit Payments (where made by cheque) into the Trust Account as soon as practicable and will (where Payments are made electronically) require that these be made directly into the Trust Account;
(b) Must ensure that Public Trust maintains the Trust Account as a trust account in the name of Public Trust with a registered bank and that Trust Funds remain at all times free and clear from any interests, charges, claims, or encumbrances other than those of Vendors and Purchasers pursuant to these Terms;
(c) May rely on any instruction which purports to have been transmitted or signed by or on behalf of a Real Estate Agent or Vendors and Purchasers (for example, by their Lawyers) and shall have no duty to make any enquiry or investigation;
(d) Must (through Public Trust) hold Trust Funds as a stakeholder and will in accordance with its duties as a stakeholder only release Trust Funds from the Trust Account when it is satisfied that the person to whom it is proposed that the Trust Funds be paid is legally entitled to them. If there is any doubt as to the person entitled to the Trust Funds, SafeKiwi will ensure that the relevant Trust Funds are retained in the Trust Account until the matter is resolved, by legal proceedings if necessary.
(e) Will resign in respect of any Transaction if directed to do so by the parties to the relevant Transaction in which case SafeKiwi shall be discharged from its duties under these Terms by delivering the relevant Trust Funds in accordance with the joint direction of the parties to the relevant Transaction;
(f) Upon due payment of the Trust Funds pursuant to these Terms, will be fully released from any liability and obligations with respect to the Trust Funds.
(g) Will maintain professional indemnity insurance in an amount of not less than $1,000,000.00.
(h) Will have a compliance review of itself and NZRET conducted by an external audit firm duly licensed under the Auditor Regulation Act 2011, at intervals of no more than 4 months.
5. Entitlement to interest and fees: SafeKiwi will be entitled to all interest earned on deposits in the Trust Account. At present, this is the only form of remuneration which SafeKiwi derives from operating NZRET.
6. Disclaimers: Clients agree that:
(a) Except as provided in these Terms, SafeKiwi has no interest in or liability for any Transaction, and has provided no advice or assistance, apart from the provision of the Services;
(b) While SafeKiwi will always use its best endeavors to ensure that the Services are not delayed, unavailable, or interrupted, SafeKiwi will not be liable to a client where any delay, unavailability, or interruption is due to circumstances beyond SafeKiwi’s control.
8. Non-Transferability of Services: The parties may not assign their rights under these Terms to any other person or entity without the prior written consent of SafeKiwi and any assignment or transfer in breach of this provision will be null and void. A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
9. Governing Law: These Terms are governed by the laws of New Zealand and the New Zealand courts have exclusive jurisdiction in respect of any disputes in relation to SafeKiwi.
last updated: 22 Jul 2014
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