MASTER SERVICES AGREEMENT


THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS THE PROVISIONS OF SERVICES FROM US TO YOU.


  1. “CLIENT”: whose trading name and principle place of business is set out on the Order and in the Account Information Form completed by the client in “My Account”.


  2. “PROVIDER”: PROPERTY SOFTWARE HOLDINGS LIMITED and associated subsidiaries, a company incorporated in England and Wales (company number 08800101) whose registered office is at, The Cooperage, 5 Copper Row, London, SE1 2LH


  3. BY PURCHASING SERVICES FROM US, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS AGREEMENT. YOU FURTHER WARRANT THAT YOU HAVE AUTHORITY TO BIND ANY COMPANY OR LEGAL ENTITY ON BEHALF OF WHOM YOU ARE ENTERING INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR DO NOT HAVE THE NECESSARY AUTHORITY TO ENTER INTO THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.


WE MAY CHANGE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME AND YOU SHOULD THEREFORE REVIEW THE TERMS REGULARLY.


  1. DEFINITIONS


    1. In this Agreement, unless the context otherwise requires, the following words and phrases shall have the following meanings:


      “Application” means the software application developed and owned by us

      and provided as part of the Services;


      “Associated Services” means the Datafeed Services and SMS Services and any other

      ancillary service provided by us to you;


      “Authorised Users” means those employees, agents and independent contractors

      authorised by you to use the Services as further described in clause [2.2];


      “Branding” means any branding or trade marks owned by you that are applied to the Application;


      “Business Days” means Monday to Friday, excluding any public and bank

      holidays in England;


      “Commencement Date” means the date that you accept the terms of this Agreement

      either by ticking a box to accept or on receipt of your order deposit;


      “Content” means Data and any data and/or content referred to in clause [9.2];


      “Data” means any data inputted into the Application by you or Authorised Users or by us on your behalf for the purpose of using the Services or facilitating your use of the Services;


      “Datafeed Fees” means the fees to be paid by you to us for the Datafeed

      Services as set out on the Order Form or as otherwise notified by us to you;


      “Datafeed Services” means the datafeed services more particularly described in

      clause 7, to be provided by us to you pursuant to an Order Form;


      “Documentation” means any and all operating manuals, user instructions,

      technical literature, online help and all other documentation and materials supplied to you by us for aiding use by you of the Services and/or Associated Services;


      “Downtime” means any time during which the Services and/or Associated Services are unavailable;


      “DPA” means the Data Protection Act 1998 as may be amended from time to time;


      “Fees” means the Service Fees, Datafeed Fees and SMS Fees and any other fees payable in respect of Associated Services;


      “Files” means electronic files containing such property information as designated by us and which is made available to us


      “Force Majeure” means any event outside a party’s reasonable control,

      including but not limited to acts of God, war, flood, fire, labour disputes, strikes, sub-contractor delays, lock-outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental actions, power or telecommunications failure, internet connectivity failure and other similar events;


      “Initial Subscription Term” means an initial period of 24 months from the commencement

      date of your contract.


      “Intellectual Property Rights” means any and all intellectual property rights wherever in the

      world arising, whether registered or unregistered (including any application for registration), including without limitation all copyright, trademarks, service marks, patents, design rights, database rights, trade secrets and/or know-how;


      “Order Form” means any completed order form signed by you and us or

      other documents (including online documents) for placing orders entered into between you and us from time to time, setting out details of the Services and Associated Services (where relevant);


      “Portals” means the property websites itemised on our Website available for you to request property details to be made available for in Files;


      “Website” means any website of ours and/or of any our subsidiary companies;


      “Services” means the subscription services provided by us, as more particularly described in the documentation. All references to service shall include the application;


      “Services Fees” means the monthly fees to be paid by you for the Services as

      set out on the Order Form or as otherwise notified by us to you;


      “SMS Fees” means the fees to be paid by you to us for the SMS Services as set out on the Order Form or as otherwise notified by us to you;


      “SMS Services” means the SMS service more particularly described in clause 6,

      to be provided by us to you pursuant to an Order Form;


      “User Subscriptions” means the user subscriptions purchased by you which entitle

      Authorised Users to access and use the Services and the Documentation in accordance with this Agreement;


      “we”, “us”, “our” means The Property Software Group (Holdings) Limited and its

      associated subsidiaries;


      “you”, or, “your” means the company or legal entity to whom we are providing

      the Services under this Agreement;


      “Virus” means anything or device which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications


      service, equipment or network or any other service or device or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.


  2. SERVICES


    1. In consideration of the payment of the Services Fees by you to us, we shall provide the Services to you solely for your business purposes and subject to the terms of this Agreement.


    2. In relation to Authorised Users you undertake that:-


      1. your access to the Application shall be limited to the number of User Subscriptions you have purchased from time to time;


      2. you shall be solely responsible for all user logins and passwords issued by us and shall ensure that they are only disclosed to Authorised Users and not to any third party. You shall immediately notify us if you become aware of any unauthorised use of any user logins and/or passwords;


      3. you shall maintain a written list of current Authorised Users and shall supply such list as may be reasonably requested by us from time to time;


      4. you will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirely to another individual Authorised User, in which case the prior Authorised User shall no long have any right to access or use the Services and/or the Documentation;


      5. we may audit use of the Services at any time and if such audit reveals that the Services are being used by more users than the number of User Subscriptions purchased, we shall be entitled to charge for each additional user at our then current rates; and


      6. you permit us to store the details of each Authorised User for the purposes of providing the Services and any Associated Services.


    3. We grant to you a non-exclusive, irrevocable and non-transferable licence to:


      1. access and use the Application in the course of provision of the Services; and


      2. use the Documentation for the sole purpose of facilitating use of the Services.


    4. You are not permitted to:


      1. use, copy, assign, lease, rent, charge and/or transfer the Services, except as expressly permitted by this Agreement;


      2. reverse engineer, disassemble or decompile the whole or any part of the Services, save solely for the purposes expressly permitted by law;


      3. remove or alter any copyright or other proprietary notice from the Services and/or Documentation;


      4. reproduce the Documentation or any part of them by any means or in any form;


      5. translate, adapt, arrange and/or alter the Services and/or Documentation or any parts of them in any way for any purpose including, without limitation, for error correction;


      6. modify or integrate the whole of or any part of the Services into software not provided by us without obtaining our prior written consent;


      7. use the Services to provide a data processing service to any third party and/or to export data to any third party other than to us and/or a Portal as permitted under this Agreement.


    5. You shall not access, store, distribute or transmit any Viruses or any material during the course of your use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or any other illegal activity; or causes damage or injury to any person or property. We reserve the right, without liability to you, to disable your access to any material that breaches the provisions of this clause.


    6. You grant to us a non-exclusive, royalty free, irrevocable and transferable licence to access, hold and process the Data and keep back-up copies of the Data solely for the purpose of performing our obligations under this Agreement.


    7. Any modifications, major new modules and/or additions to the Services specifically requested by you shall be subject to additional terms and fees to be mutually agreed between the parties.


  3. FREE TRIAL


    1. If you subscribe to the Services as a free trial, the trial period will run until the earlier of (i) the end of the stated free trial; (ii) the start of any purchased Services ordered by you.


    2. During any trial period, we give no warranties to you regarding the Services which will be provided on an AS IS basis.


    3. Any Data that you enter into the Services, will be lost at the end of the free trial unless you purchase a subscription to the Services.


  4. INTELLECTUAL PROPERTY RIGHTS


    1. You acknowledge and agree that all Intellectual Property Rights in the Services (including without limitation in the Application) and Documentation belong to us and you have no rights in or to the Services and/or Documentation, other than the right to use them in accordance with this Agreement.


    2. You shall notify us immediately if you become aware of any unauthorised use of the whole or any part of the Services and/or Documentation by any person.


    3. You acknowledge and agree that nothing in this Agreement confers on you any licence or right to use any trade marks, names or logos of ours and/or the Application except as expressly set out in this Agreement and that all Intellectual Property Rights in such trade marks, names and logos together with all goodwill arising out of or in connection with these, belong to us and/or our licensors (as appropriate).


    4. We warrant that, to the best of our knowledge, the Application does not infringe the UK Intellectual Property Rights of any third party.


    5. We shall defend at our own expense any claim brought against you alleging that use of the Application in accordance with this Agreement infringes the UK Intellectual Property Rights of a third party.


    6. In the event that any legal proceedings are brought against you claiming any infringement of third party UK Intellectual Property Rights based on your use of the Application in accordance with this Agreement, we shall indemnify you against any such claim, provided that you:


      1. notify us promptly in writing of any such claim;


      2. we are given immediate and sole control of such claim;


      3. do not make any admission as to liability and/or prejudice our defence of such claim;


      4. give us all reasonable assistance with such claim ; and


      5. have complied with all the terms of this Agreement.


    7. The indemnity given in clause 4.6 above shall not apply where the claim arises as a result of or is based upon:


      1. use of the Services (including without limitation the Application) other than in accordance with the terms of this Agreement;


      2. any third party’s access to or use of the Services and/or use of the Services by a person other than an Authorised User;


      3. any claimed infringement or violation by you of any third party Intellectual Property Rights or other rights as a result of the Content; and/or


      4. you or any user’s use of the Services outside the scope of this Agreement.


    8. In the event of any claim under clause 4.5 above, we shall be entitled at our own expense and option either to:


      1. procure the right for you to continue using the Services;


      2. make such alterations, modifications or adjustments to the Services so that they become non-infringing without incurring a material diminution in performance or function; or


      3. replace the infringing part of the Services with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.


    9. If the remedies set out in clause 4.8 above are not available, you shall cease using the Services.


    10. Clause 4.8 states the entire liability of us to you in respect of the infringement of the Intellectual Property Rights of any third party.


  5. WARRANTIES


    1. We will provide the Services with reasonable skill and care.


    2. We shall have no liability to you if any default or error in the Services arises as a result of:


      1. a defect or deficiency in, or a failure of, other software, hardware, equipment and/or any internet link not provided by us or the technical environment the Application is being run within;


      2. any unauthorised amendment or alteration made by you and/or a third party to the Services that is not expressly authorised by us;


      3. use of the Services with other software or equipment with which it is incompatible; and/or


      4. operator error.


    3. You acknowledge and agree that the Services and the Associated Services have not been prepared to meet your individual requirements and it is your sole responsibility to ensure that the Services and the Associated Services meet your requirements.


    4. Whilst we shall use our reasonable endeavours to maintain availability of the Services, we do not warrant that use of the Services will be uninterrupted or error free.


    5. You acknowledge and agree that there may be a certain amount of Downtime, in order to enable us to carry out reasonable maintenance work or due to circumstances outside of our control.


    6. We shall use our reasonable endeavours to notify you of any report of Downtime as soon as reasonably practicable after becoming aware of it and shall remedy the Downtime as soon as reasonably practicable.


    7. We shall have no liability for any Downtime caused as a result of any act or omission of you or of users, your negligence and/or any due to maintenance as referred to in clause

    8. below.


        1. We reserve the right to suspend availability of access to the Services and/or Associated Services where emergency or scheduled maintenance is required. We shall, however, make reasonable efforts to provide you with prior notification of any scheduled maintenance.


        2. Unless expressly stated in this Agreement, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law, custom, trade usage, course of dealing or otherwise (including, without limitation, any implied conditions as to quality or fitness) are excluded to the fullest extent permitted by law.


  6. SMS SERVICE


    1. Where you elect to take the SMS Services and pay the SMS Fees, we shall provide you with access to the Property Software Group SMS Text Messenger Services from within certain group software products.


    2. Where technical and operational conditions allow, access to the SMS Server shall be provided no later than two Business Days after payment of the relevant SMS Fees.


    3. We:


      1. will provide instructions on how to access the SMS Services. These instructions, locations of servers and methods of accessing SMS servers may be liable to change at any time. We will advise you in advance of such changes;


      2. will do our best to ensure successful delivery of all messages. Successful delivery depends on additional parties such as ISP's, telcos and network operators, hence we cannot guarantee delivery;


      3. shall not be liable for the content of the text messages;


      4. will use our reasonable endeavours to ensure uptime of the SMS Services, however, faults cannot be repaired if circumstances beyond our control prevent their repair;


      5. reserve the right to carry out maintenance and technical alterations to equipment which may affect availability of the SMS Services; and


      6. reserve the right to suspend or stop the provision of the SMS Services at our discretion for any reason without notification.


    4. You acknowledge and agree that:


      1. in order to use the SMS Services, you must obtain as appropriate email and access to the Internet, and pay any service fees associated with such access. In addition, you must provide at your own cost all the equipment necessary to make such a connection to the Internet;


      2. to protect the integrity of the system and SMS Services, users may not send unlawful, obscene, abusive, harassing or threatening messages. Spamming (unsolicited marketing) is not allowed;


      3. you shall be held responsible to us for any use of your password by third parties. You will pay for sending all SMS Text messages from your account and in this respect you are recommended to keep your password to the SMS server in a safe place and not to reveal it to third parties;


      4. after you have entered into this Agreement and a direct debit mandate, a password will be sent to you via e-mail. This password serves as authentication of you to us. We will perform no further authentication of your identity;


      5. all SMS activities which can be traced to your password are deemed as having been performed by you and are legally binding for you;


      6. you will be responsible for the content of any SMS Text message, which we transmit or process on your behalf or on behalf of any third party. You shall ensure that the access is not used to worry or annoy any GSM users or for any other unlawful purpose. In particular, scenes of violence, pornography, incitement to violence and racial discrimination are unlawful. SMS Text messages with advertising content may not be sent to GSM users who have indicated that they do not wish to receive advertising material. Any advertising text must contain your hotline number. (Premium rate numbers that incur a charge must state the charges involved.) Also, such SMS messages transmitted must contain an existing and authorised service phone number belonging to you or authorised for use as such by the owner of the phone number; and


      7. you will comply with all applicable laws, regulations and network operator requirements including, without limitation, those relating to data protection, privacy, advertising and direct marketing. Any complaint from a third party, a network operator, the Information Commissioner’s Office or any other enforcement authority would be regarded in a very serious light and in such circumstances, we may, at our discretion, suspend provision of the SMS Services.


        You are advised to include your own contact details in your messages to ensure that complaints are directed at you and not at the network operator or another party. We may remove numbers from our database should complaints be received.


    5. In its handling of data, we shall adhere to current legislation relating to telecommunications and data protection. This applies, among other things, to the registration, storage and passing on of your data. We may be obliged by law, to provide information about your telecommunications traffic to the relevant authorities by court order during prosecution proceedings. We cannot eliminate the possibility of unauthorised third parties obtaining access to the contents of transmitted messages.


    6. You agree that, by definition, access to the Internet, the GSM network and other communication media is associated with risks concerning authentication, data security, privacy, availability of services, reliability of transmission etc. You agree to bear full and exclusive responsibility arising from such risks and all consequences of usage of the SMS Services and agree that we are not liable for such risks and consequences.


    7. You acknowledge that we deliver SMS messages via telecommunications companies and mobile network providers and can therefore only influence the delivery with respect to transmission of SMS messages within the technical constraints imposed by the above mentioned providers. SMS messages submitted via us SMS Servers will be transferred to the addressed mobile recipients within seconds or minutes. We cannot guarantee that recipients will receive the SMS messages. You acknowledge that, depending on the recipient's mobile service provider, it may not be possible to transmit the SMS message to the recipient successfully, as it will depend on a number of factors including, without limitation, whether the recipient's phone is switched on and located in an area covered by their subscribed mobile network us and whether the recipient’s mobile service us supports SMS delivery.


  7. PROVISION OF PROPERTY INFORMATION


    1. Where you elect to take the Datafeed Services and you have paid the Datafeed Fees, we agree to make available Files to the selected Portals, that have signed an agreement with us.


    2. We: -


      1. reserve the right to change the specification of the Files without notification;


      2. do not commit to provide the Files after every business day;


      3. are not liable for the content of the Files;


      4. reserve the right to suspend or stop the provision of the Files, to any or all Portals, at our discretion without notification;


      5. reserve the right to access any part of the data Files for redistribution at its discretion.


    3. You agree:-


      1. you are duly authorised to allow the upload of the information contained in a File onto the Portals that you select and that you have entered into a written agreement with the relevant Portals or will do so prior to the transmission of any Files to the Portals;


      2. not to be, nor give authority to any third party to be, without our prior written consent, in any way directly or indirectly engaged or concerned with copying, reproducing, redistributing, downloading, republishing, transmitting, displaying, adapting, altering, creating derivative works from or otherwise extract or re-utilise any information made available on any of our Websites, whether for commercial gain or otherwise;


      3. not to, nor give authority to any third party to, reference or link, without our prior written consent, in any way directly or indirectly, to any of our Websites;


      4. the Files will be made available to Portals, at our discretion;


      5. you are solely responsible for the content of the Files.


    4. We reserve the right to charge for the Files made available at a future date.


    5. Pricing will be reviewed in each calendar year by us for this service.


    6. You acknowledge that the Files may contain bugs, errors and other problems that may cause systems failures. Consequently, the files are provided "AS IS", without a warranty of any kind.


  8. SUPPORT


    1. As part of the Services, we shall provide support to you as set out in Schedule 2.


  9. YOUR OBLIGATIONS


    1. You shall:


      1. comply with all applicable laws and regulations with respect to your activities under this Agreement;


      2. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s use of the Services and breach of this Agreement;


      3. be solely responsible for connection to the Internet and for any local PC, network, firewall or other hardware and software required in order to access and use the Services and for any associated fees.


    2. You acknowledge that you are solely responsible for all Data and for data and content contained in any SMS messages or Files (“Content”).


    3. You warrant that all Content is accurate, legal, non-defamatory, decent, honest and truthful; complies with all relevant regulations, laws and codes of practice; will not breach any contract and/or infringe any third party Intellectual Property Rights and/or other rights; will not render us liable to any proceedings; and will not harm and/or detriment our reputation.


  10. DATA


    1. You acknowledge and agree that to the extent that the Content contains any Personal Data (as defined under the DPA), you are the Data Controller (as defined in the DPA) and as such are responsible for compliance with the DPA in relation to Personal Data. For the purposes of this Agreement, we are the Data Processor (as defined in the DPA) and shall only process Content as required in the provision of the Services and in accordance with the DPA.


    2. You agree that:


      1. any personal data contained within the Content may be accessed and/or held by our service providers and transferred or stored outside of the EEA in order to provide the Services and fulfil our obligations under this Agreement;


      2. you have the necessary consents to transfer the Content to us so that we may lawfully use, process and transfer personal data in accordance with this Agreement as part of the Services which includes any transfer pursuant to clause 10.2.1;


      3. we may use the Content to deliver the Services and also for our own business purposes, including but not limited to the creation of anonymised statistical data, that we may provide to third parties;


      4. all relevant third parties have been informed of and have given their consent to, such use, processing and transfer provided for under this Agreement, as required by the DPA.


    3. We shall take reasonable and appropriate technical and organisational measures to protect the Content from unauthorised or unlawful processing of personal data or its accidental loss, destruction or damage.


    4. We shall not be responsible for any loss, destruction, alteration or disclosure of content caused by any third party (excluding those sub-contracted by us to perform services related to Content maintenance and back-up).


    5. You shall indemnify and hold us harmless from and against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and administration costs) and any other losses and/or liabilities arising out of (i) any claim by a third party relating to the Content; (ii) your use of the SMS Services;

      (iii) your violation of any rights of a third party and/or of any laws or regulations or codes of practice; and/or (iv) any breach of this Agreement by you.


  11. FEES


    1. All Fees are exclusive of VAT which shall be payable by you in addition.


    2. Time for the payment of all Fees is of the essence.


    3. The Services Fees are payable on a basis monthly in advance by direct debit


    4. The Datafeed Fees are payable in line with the terms set out on the Order Form or as otherwise stipulated by us but in any event would be payable on a monthly basis for the duration of the service period.


    5. SMS Fees


      1. Invoices in respect of the SMS Fees will be raised on the last day of each calendar month for each office or as soon as possible after that date, for your usage in that calendar month;


      2. Invoices will be raised for a minimum amount of £10.00, irrespective of the number of SMS messages sent;


      3. The SMS pricing scheme is 10 pence per SMS sent. The charge for this service will be made regardless of successful delivery;


      4. We cannot guarantee delivery of the SMS messages to recipients due to factors outside of our control and we do not refund undeliverable SMS messages to you;


      5. We shall bill you for the transmission of SMS text messages using our server records. These records shall be considered correct, even if you contest the bill, and our technical checks do not give any indications of errors. The charges for our SMS Server only apply to SMS text messages transmitted on GSM networks;


      6. The charges specified by each individual GSM network operator apply to the transmission of SMS text messages on GSM networks of third parties. We reserve the right to pass on any charges we receive from other operators to you; and


    6. Payment for all non-upfront fees will need to be made by direct debit.


    7. Fees will be collected by direct debit on the invoice date.


    8. The provider may increase support / rental fees after the expiry of the initial subscription term. All increases will be effective at the annual anniversary of the support / rental contract. The provider reserves the right to make non anniversary increases which shall be notified to the Client at least 30 days prior to the increase taking effect.


    9. Fees for licences added to this agreement within the initial subscription term remain due until the end of the initial subscription term and are then subject to the termination notice periods set out in 12.2 of this agreement. Licences can be increased but not reduced during the initial subscription period.


    10. You shall pay all Fees due under this Agreement without any set off, deduction, counterclaim and/or other withholding of monies.


    11. If you fail to pay any Fees when due, we reserve the right (without prejudice to any other remedies it may have) to:


      1. charge interest (both before and after judgment) on the amount outstanding at the current applicable statutory rate set out under the Late Payment of Commercial Debts (Interest) Act 1998;


      2. suspend provision of the Services and/or the Associated Services.


  12. TERM AND TERMINATION


    1. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the following provisions or as otherwise provided in this Agreement.


    2. This Agreement will automatically renew for a further 24 months at the end of the Initial Subscription term.


    3. Either party may terminate the Services and any or all of the Associated Services by giving 90 days’ prior written notice to the other party, such notice not to be served prior to the end of the Initial Subscription Term.


    4. We may immediately terminate the Datafeed Services and/or the SMS Services if we are no longer able to provide these services due to circumstances outside our control.


    5. We may terminate this Agreement, the Services and/or any or all of the Associated Services immediately on giving notice in writing to you if:


      1. you commit a breach of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from us to do so, to remedy the breach;


      2. you shall have a receiver or administrative receiver appointed of it or over any part of your undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if you shall enter into any voluntary arrangement with your creditors or shall become subject to an administration order or any step is taken (including, without limitation, the making of an application or the giving of any notice) by you or by any person in respect of any of these circumstances);


      3. you cease to carry on business;


      4. you do or omit to do something which, in the reasonable opinion of us, may be detrimental to our reputation and/or business.


    6. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.


    7. For the avoidance of doubt, there shall be no refund of any element of the Fees by reason of any termination of this Agreement.


    8. For the avoidance of doubt, if the Services are terminated pursuant to this clause 12, this Agreement shall automatically terminate.


    9. On termination of this Agreement:-


      1. You shall immediately discontinue use of the Services and procure that Authorised Users also discontinue use of the Services; and


      2. We shall make available for collection any stored Data that we hold for a period of 60 days. After expiry of this period, we shall be entitled to delete or destroy the Data without liability for any loss of or damage to the Data.


  13. LIABILITY


    1. Except as provided in clause 13.4, we shall not be liable to you in contract, tort (including, without limitation, negligence), statutory duty or otherwise arising out of or in connection with this Agreement for (a) consequential, indirect or special loss or damage; (b) any loss of goodwill or reputation; (c) loss of contracts, business and/or opportunity; (d) loss of profits; (e) loss of revenue or anticipated savings; and/or (f) any economic and/or other similar losses; and in each case such liability is excluded whether it is foreseeable, known, foreseen or otherwise and whether such losses are direct, indirect, consequential or otherwise.


    2. Except as provided in clause 13.4, our total liability to you under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial


      services or otherwise) will be for direct costs and damages only and will in aggregate in respect of any claim or series of connected claims be limited to: (i) in respect of any liability relating to the Services, 125% of the Services Fees paid to us in the 12 months immediately preceding the date of the event giving rise to the liability; and (ii) in respect of any liability relating to the Associated Services, 125% of the relevant Fees paid by you to us for the relevant Associated Services giving rise to the liability in the 12 months immediately preceding the date of the event giving rise to the liability.


    3. Except as provided in clause 13.4, we shall not be liable to you for any loss arising out of (and to the extent caused by) any Content processed by the Services and/or held by the Application in accordance with best computing practice.


    4. Nothing in this Agreement shall exclude or limit either party’s liability for death and/or personal injury caused by its negligence, for fraud, fraudulent misrepresentation or for any other liability which it is not permitted to exclude or limit as a matter of law.


  14. CONFIDENTIALITY


    1. Each party ('Receiving Party') shall keep the confidential information of the other party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for performing the Receiving Party's obligations under this Agreement.


    2. The obligations of clause 14.1 shall not apply to any information which:


      1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Providing Party;


      2. is, or becomes, publicly available through no fault of the Receiving Party;


      3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;


      4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or


      5. is required to be disclosed by order of a court of competent jurisdiction, provided that such advance notice of disclosure as is possible (and to the extent legally permissible) is given to the Disclosing Party.


  15. GENERAL


    1. Force Majeure


      Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from force


      majeure. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 3 months, either party may terminate this Agreement by written notice to the other party.


    2. Amendments


      This Agreement may only be amended in writing signed by duly authorised representatives of the parties.


    3. Assignment


      We shall be able to assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of our rights and/or obligations under this Agreement. You shall not be entitled to assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of your rights and obligations under this Agreement.


    4. Entire agreement


      This Agreement, including the schedules and any Order Form, contains the whole agreement between the parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.


    5. Waiver


      No failure or delay by us in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.


    6. Agency, partnership


      This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party's behalf.


    7. Severance


      If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining


      provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.


    8. Announcements


      No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.


    9. Notices


      1. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by facsimile or e-mail (confirmed by first class mail or air mail), to the address of the relevant party set out at the head of this Agreement, or to the relevant facsimile number set out below, or such other address or facsimile number as that party may from time to time notify to the other party in accordance with this clause. The relevant contact information for us is as follows:


        Post: The Property Software Group, Prosper House, Cardrew Industrial Estate, Redruth, Cornwall, TR15 1SS


        Email: customerservice@propertysoftwaregroup.com


      2. Notices sent as above shall be deemed to have been received 3 Business Days after the day of posting (in the case of inland first class mail), or 7 Business days after the date of posting (in the case of air mail), or on the next Business day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender's facsimile machine recording a message from the recipient's facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted), or next Business day after sending (in the case of e-mail).


      3. In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.


  16. LAW AND JURISDICTION


    The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the parties submit.


  17. THIRD PARTIES


For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.


SCHEDULE 1 PROPERTY INFORMATION

Where agreed with you, we will supply the following property information (where possible) to the Portals:


Property name, street, town, county and postcode Property price and Price Qualifier

Property type and status Number of bedrooms Property description Property bullet points

EPC Data as required by legislation


Main property image (however, there will be a link back to the additional images from the property recorded on the Portal)


The “files” specification is under constant development. Enhancements to the file may result in other property information becoming available.


SCHEDULE 2 SUPPORT



  1. SUPPORT


    1. Support for the Services shall comprise a technical support desk available 9.00am – 5.30pm on Business Days (excluding 12 noon to 5.30pm on Christmas Eve).


    2. To contact the technical support desk:


      1. E-mail to cfpsupport@propertysoftwaregroup.com


      2. Users only area of the Provider’s website located at www.cfp-software.co.uk


      3. Calls are recorded for training and monitoring purposes. Our support team is made up of highly trained professionals who regularly receive training to ensure that they are fully equipped to answer all your support queries quickly and efficiently. In addition to this, we monitor and record our calls to ensure that we maintain the highest possible standards of service to our clients and regularly carry out surveys to encourage feedback from our customers.


    3. We shall respond to any telephone calls or e-mails by the most appropriate method which may be by telephone, e-mail, remote dial-in or fax.


    4. Support does not include any on-site assistance and will only be provided remotely. On-site support is available upon request and will be charged at the prevailing daily rate for this service.


    5. You shall provide us, our employees, contractors, agents and all other persons duly authorised by us with full, safe and uninterrupted access (including remote access) to your systems and facilities as may be reasonably required by us for the purpose of providing support.


    6. You shall take all reasonable steps to ensure that the Services are operated in a proper manner and only by employees of you who are adequately trained on use of the Services.


    7. You shall:


      1. co-operate with us and provide any assistance or information as may reasonably be required by us, including in relation to the diagnosis of any faults;


      2. report faults promptly and in sufficient detail to us;


      3. keep full and up to date back up copies of all of its data at each site;


      4. carry out regular virus checks of the Application.


    8. All calls will be logged and we reserve the right to monitor calls to ensure that a high quality is maintained.


  2. EXCLUSIONS


    1. Support does not include:


      1. site visits;


      2. recovery of data;


      3. general training issues;


      4. Customisation Services (template creation and amendments);


      5. support in respect of third party software, irrespective of whether or not supplied by us to you;


      6. support in respect of your systems, network, hardware and/or any other equipment or associated components;


      7. updates to letters and agreements provided by third parties;


      8. professional advice in relation to any legal or compliance issues regarding property management or estate agency;


      9. support in respect of any default or error in any of the Services which arises as a result of a defect or deficiency in, or a failure of, the equipment upon which the Application is operated; a defect or deficiency in or a failure of an internet link; incorrect use of or damage to the Application from whatever cause (other than any act or omission by us) including failure or fluctuation of electrical power; use of the Application in combination with any equipment or software not provided by us or not designated by us as being compatible; any unauthorised amendment or alteration to the Application made by you and/or a third party not expressly authorised by us to the Application; and/or operator error; and/or


      10. recovering or correcting data lost or corrupted by computer viruses.


    2. You are not permitted to modify any databases within the Application and any modification shall immediately terminate this Agreement.