SUBSCRIPTION TERMS & CONDITIONS

This subscription agreement is made between Homesearch Digital Limited (registered number 11719538) whose registered office is 14th Floor 33 Cavendish Square, London, England, W1G 0PW (“us”, “we” or “Homesearch”) and you, the Customer or client named at the head of this document (“you”).

We have agreed to grant a non-exclusive subscription to you and your authorised users to access the Service described in the Order Form on the terms set out below.

These terms should be read in conjunction with the Order Form which sets out the basic terms of the subscription agreement and any support included (which will be set out in Schedule 1 of this Agreement where applicable).

 

1. Definitions

In this agreement the following expressions have the meanings stated, unless the context otherwise requires:

“Customer’s Group” shall be the Customer, Customer’s parent company holding a majority interest in Customer, and such parent company’s majority owned subsidiaries;

“Data Legislation” all applicable laws and regulations relating to the processing of Personal Data and privacy as may be applicable from time to time, which at the date of this Agreement means the Data Protection Act 1998 and the GDPR (EU General Data Protection Regulation 2016/679), and any successor legislation;

“Start Date” means the date on which the Service is made available to the Customer to access, an estimate of which is set out in the Order Form;

“Subscription Term” means the initial term of this subscription as specified in the Order Form;

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms  of protection which subsist or will subsist, now or in the future, in any part of the world;

“Renewal Date” Means either:

1. a) The last day of the Initial Subscription Term; or
2. b) An anniversary of the last day of the Initial Subscription Term.

“Service” The service to which you have subscribed as described in the Order Form.

“Software” refers to the software which operates the Service referred to in the Order Form;

“Subscription Fee” means the fee for the subscription set out in the Order Form as the same may be varied in accordance with clause 3.3 below;

“Third Party Software” means any third party which may be used in conjunction with the Service including the third party software identified in the Order Form.

“Use” the use, copying or transmission of the Service in any manner whatsoever.

“User” any person (whether or authorised or not) who uses or accesses the Service.

2. Subscription

2.1 These subscription terms together with the Order Form (together “this Agreement”) comprise the contract between you and us for the use of the Service.

2.2 Subject to these terms and conditions we hereby grant to you a non-exclusive, non-transferable right to allow those users authorised by you in accordance with this agreement (“Authorised Users”) to use the Service during the agreed subscription period (“Subscription Period” as defined in clause 11.1) solely for your internal business purposes (save as we may specify in the Order Form).

2.3 This Agreement does not permit the use of the Service to supply services to any customer, client or third party save as specifically agreed in writing (subject to such conditions as may be specified).

2.4 In relation to the Authorised Users, you undertake that: 

(a) the maximum number of Authorised Users you will authorise to access and use the Service shall not exceed the number of permitted user subscriptions as agreed by us from time to time;

(b) you will not allow any individual subscription to be used by more than one individual Authorised User;

(c) if you exceed the permitted number of Authorised Users then you agree to pay us an amount equal to the underpayment.

2.5 You may agree with us, from time to time during the term of this Agreement, to purchase additional user subscriptions and we shall grant access to the Service to such additional Authorised Users in accordance with the provisions of this Agreement and the applicable fees shall be automatically increased.

2.6 We agree that the Service will be available as set out in Schedule 1 and that we will provide Support and Maintenance Services in accordance with the response times set out in Schedule 1.

Our general terms and conditions (available on our website at www.homesearch.co.uk) will also apply unless they are inconsistent with the terms of this Agreement in which case this Agreement will prevail.

2.7 You may access the Homesearch Website by registering with Homesearch either after browsing the Homesearch Website or by accepting an invitation sent to you by an existing Homesearch user. On completion of the Form and after providing such information as Homesearch may reasonably require, and acceptance by Homesearch, You will then have access to the Homesearch Website and the Services, as stated on the Form within the Terms of the Agreement.

2.8 You will keep Your username and password for the Homesearch Website safe and confidential and will not permit any third party to use it in any manner. You will be solely responsible for all use of the Services and for all access to the Homesearch Website affected by use of Your username and password. If You think that someone else may know Your username or password or has used them without Your permission, You must notify Homesearch immediately. Homesearch may change Your password, if it has reason to think that there is likely to be a breach of security or misuse of the Services; and it will notify You as soon as practically possible. Your username and password are for use by one person and on only one computer at any given time. If You are logged in on one system and attempt to log-in from another, You will be logged out. Homesearch may lock Your account for a security check in any suspicious circumstance.

3. Restrictions

3.1 You agree that you will not except as may be allowed by any applicable law which is incapable of exclusion by this Agreement between the parties and except to the extent expressly permitted under these terms or agreed between us in writing: 

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; 

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or 

(c) access all or any part of the Service in order to build a product or service which competes with the Service; or 

(d) provide the Service to third parties other than in the context of the delivery of your own services to such third parties; or 

(e) licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to  any third  party except  the Authorised Users or as otherwise permitted pursuant to the Order Form, or 

(f) attempt to obtain, or assist third parties in obtaining access to the Service other than in accordance with these terms.

3.2 You shall use commercially reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify us.

3.3  Save as set out in the Order Form, the Service is offered for internal use only and not for the purpose of supplying services to third parties. Accordingly you agree that you will not licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise distribute the outputs the Service to any third party without our prior written consent or as may be specified in the Order Form.

3.4 The rights provided are granted to you, the customer named in the Order Form only and shall not be considered granted to any of your subsidiary or holding companies.

4. Termination

You agree to the terms of use and a 90 day notice period.

You may terminate Your access to the Homesearch Website and use of the Services by notice to Homesearch, provided that: 

(a) Written notice of termination has been given to [email protected] 

(b) Cancelation Term is adhered to: 90 days notice from date of written notice received and sent to [email protected] 

(c) Failure to provide adequate notice directly to [email protected] may result in the start of your 90 day notice period being delayed, until which time appropriate channels are followed.

5. Additional Services

5.1 We shall, during the term of this Agreement subject to any period of implementation and payment of the applicable fees make available the then-current version of the Service available to you.

5.2 We may from time to time, and by agreement in writing, as part of our Services carry out professional or consultancy services (“Professional Services”). We warrant that any such Professional Services will be subject to any terms agreed between us in writing, including applicable fees and charges. Professional Services will be carried out with reasonable skill and care in accordance with good industry practice. Please note that the limitations on liability set out in this Agreement will apply to Professional Services unless otherwise agreed in writing.

5.3 If specified in the Order Form we will provide you with our standard customer support services during normal London business hours by email, phone or web portal (at our discretion). We may vary our support services in our sole and absolute discretion from time to time. You may purchase enhanced support services and professional services separately at our then current rates.

6. Subscription Fee

6.1 The Subscription Fee shall include the cost of access to the Service by Authorised Users and the support set out in the Order Form (if any).

6.2 The Subscription Fee (together with value added tax thereon) shall be paid by you in accordance with the Order Form and the first applicable payment shall be payable in advance of the Start Date.

6.3 We will be entitled to increase the annual Subscription Fee from any Renewal Date by giving you not less than 90 days prior notice expiring on the Renewal Date provided that you will be entitled to terminate this Agreement by giving not less than 90 days’ notice expiring before the relevant Renewal Date without further liability.

6.4 We reserve the right to charge you interest in respect of the late payment of any sum due under this agreement (after, as well as before judgement) at the rate of 4 per cent per annum above the Bank of England base rate from the due date until payment is made.

6.5 In the event that any fees or charges are outstanding we may terminate your access to the Service.

7. Intellectual Property

7.1 You acknowledge that all Intellectual Property Rights in the Software and the Service belong and   shall belong to us, and you shall have no rights in or to the Software or the Service other than the right to access the Service in accordance with the terms of this Subscription.

7.2 We undertake at our own expense to defend you or, at its option, settle any claim or action brought against you alleging that the possession or use of the Service (or any part thereof) in accordance  with the terms of this Agreement infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against you as a result of or in connection with any such Claim.

For the avoidance of doubt, this clause shall not apply where the Claim in question is attributable to possession or use of the Service (or any part thereof) by you other than in accordance with the terms of this Agreement, use of the Service in combination with any hardware or software not supplied or specified by us if the infringement would have been avoided by the use of the Service not so combined,

7.3 If any third party makes a Claim, or notifies an intention to make a Claim against you, our obligations under clause 7.2 are conditional on you:

7.3.1 as soon as reasonably practicable, giving written notice of the Claim to us, specifying the nature of the Claim in reasonable detail;

7.3.2 not making any admission of liability, agreement or compromise in relation to the Claim without our prior written consent (such consent not to be unreasonably conditioned, withheld or delayed);

7.3.3 giving us and our professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable us and our professional advisers to examine them and to take copies (at our expense) for the purpose of assessing the Claim; and

7.3.4 subject to us providing security to you to your reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as we may reasonably request to avoid, dispute, compromise or defend the Claim.

7.4 If any Claim is made, or in our reasonable opinion is likely to be made, against you, we may at our sole option and expense:

7.4.1 procure for you the right to continue to use the Service (or any part thereof) in accordance with the terms of this Agreement;

7.4.2 modify the Service so that it ceases to be infringing; replace the Service with non-infringing services; or

7.4.3 terminate this Agreement immediately by notice in writing to you and refund any of the Fee paid by you as at the date of termination (less a reasonable sum in respect of your use of the Service to the date of termination) on return of the Service and all copies thereof, provided that if we modify or replace the Service, the modified or replacement Service must comply with the warranties contained in this Agreement.

7.5 Notwithstanding any other provision in this agreement, clause 7.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software.

7.6 This clause 7 constitutes your exclusive remedy and our only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 9.

8. Warranty

8.1 Subject to the exceptions set out below and the limitations on our liability we warrant that we have the right power and authority to authorise access to the Service upon the terms and conditions of this agreement and that the Service will materially comply in material respects with the specification described on our website.

8.2 We do not warrant that the use of the Service will be uninterrupted or error-free.

8.3 The Service may be unavailable during:

8.3.1 planned maintenance carried out during the planned maintenance windows; and

8.3.2 unscheduled maintenance performed outside normal business hours, provided that we have used reasonable endeavours to give you notice in advance.

8.4 You accept responsibility for the selection of the Service to achieve your intended results and acknowledge that the Service has not been developed to your specific requirements.

8.5 We will have no liability to remedy a breach of warranty where such breach arises as a result of any breach by you of the terms of this Agreement.

8.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

8.7 We may, at our discretion, remedy any breach of warranty by the provision of technical support free of charge.

9. Content

9.1 We will endeavour to ensure that the content provided to you by the Service (“Homesearch Content”) is correct; we are not responsible in any manner for such Homesearch Content.

9.2 Any Homesearch Content we provide to you or publish is intended for information only. Homesearch Content is not intended to form the sole basis of any given technical, business or commercial decisions (together referred to as a “Business Decision”).

9.3 Any Business Decisions made by you once you have received, read or reviewed Homesearch Content are commercial decisions for you and we will not make, or be deemed to make, any technical, business, commercial or investment decisions on your behalf. You are strongly advised to take into account, when making any Business Decision, to take into account any information and advice other than Homesearch Content which you are, or should be aware of.

9.4 The Homesearch Content should not be regarded as or relied upon as being comprehensive opinions concerning the matters discussed.

9.5 You acknowledge that if you request information about a property or area you and your staff have read and accept the acknowledgements and disclaimers relevant to that property or area, as stated on the Service and that such acknowledgements and disclaimers will apply as part of these Terms.

10. 10. Use of your personal information

We will only use your personal information to go about improving our Services, including testing, research, internal analytics and product development, such as: 

(a) Creating and managing your account or other user profiles. 

(b) Processing orders or other transactions.

(c) Providing you with the products, service or information you request, including support and assistance on our Services.

(d) Improving the Services, including testing, research, internal analytics and product development. 

(e) Personalising the Services, website and communication based on your preferences. 

(f) Performing fraud detection, security and debugging. 

(g) Carrying out other business purposes, stated when collecting your personal information. 

(h) Showing you advertisements, including interest-based or online behavioural advertising.

11  Limitation of liability

11.1 Except as expressly stated in clause 10:

11.1.1 We shall not in any circumstances have any liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(a) special damage even if we were aware of the circumstances in which such special damage could arise;

(b) loss of profits;

(c) loss of anticipated savings;

(d) loss of business opportunity;

(e) loss of goodwill;

(f) loss or corruption of data;

(g) indirect or consequential losses;

provided that this clause 11.1.1 shall not prevent claims for direct financial loss that are not excluded by any of categories (a) to (g) inclusive of this clause 11.1.1;

11.1.2 we will not be liable for the content of any Listing, which will be your sole responsibility, however the information in the Listing is provided to us;

11.1.3 we will not be liable for any losses (including financial losses) arising from the integration of the Service with any other software or systems used by you;

11.1.4 our total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to 200% of the Subscription Fees paid by you; and

11.1.5 you agree that, in entering into this Agreement, either you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if you did rely on any representations, whether written or oral, not expressly set out in this Agreement) that you shall have no remedy in respect of such representations and   (in either case) we shall have no liability in any circumstances otherwise than in accordance  with the express terms of this Agreement.

11.2 Nothing in this Agreement shall exclude our liability for:

11.2.1 death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;

11.2.2 fraud or fraudulent misrepresentation;

11.2.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

11.2.4 Any other liability which may not be excluded by law.

11.3 All dates supplied by us for delivery of services shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

11.4 All references to “we” or “us” in this clause 10 shall, for the purposes of this clause only be treated as including all employees, subcontractors and suppliers of ours, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

12 Confidentiality and Data

12.1 Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:

12.1.1 trivial or obvious;

12.1.2 already in its possession other than as a result of a breach of this clause; or

12.1.3 in the public domain other than as a result of a breach of this clause.

And each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employee’s agents and subcontractors.

12.2 You  agree not to upload any personal data (as defined by applicable data protection legislation) to  the Service without our prior written consent other than user data required for registration purposes (including name, email address and telephone number), and you confirm that we have the right to process such user data in order to deliver the Service as set out in this Agreement.

13 Duration of agreement

13.1 The agreement shall, unless otherwise terminated as provided in this clause, commence on the Start Date and shall continue for the minimum Subscription Term as specified in the Order Form (“Subscription Term”) and, thereafter this Agreement shall be automatically renewed for successive periods of 90 days.

13.2 Either party may terminate the Agreement and the subscription at any time by giving the other party not less than 90 days prior written notice.

13.3 If you are accessing our Listing Services via an API or feed with a CRM provider we will continue to publish your property listings until such time as you terminate the feed or API to us from your CRM provider.

13.4 In addition to, but without prejudice to the other rights and remedies of each under this Agreement, in the event that:

13.4.1 Either party fails to perform or comply with any of its material obligations under this Agreement and such failure is not remedied to the reasonable satisfaction of the other party within 90 days of written notification; or

13.4.2 Either party commits a material or persistent breach of the terms of this Agreement; or

13.4.3 Either party enters into insolvency; Then the other party may terminate this Agreement immediately by written notice to the party who is subject to 11.2.1 to 11.2.3.

13.4.4 For the purposes of clause 11.2, a party shall be regarded as entering into insolvency if:

13.4.5 it suspends or ceases or threatens to suspend or cease all or a substantial part of its operations; or

13.4.6 a meeting is convened, an order made or a resolution passed for its winding-up (except for the purposes of a reconstruction or amalgamation whilst solvent); or

13.4.7 a petition is presented for its winding up and not stayed, dismissed or withdrawn within 10  days (unless it is demonstrated to the other party’s satisfaction that the petition is frivolous or vexatious and it is dismissed before the petition is advertised and in any event within 14 days  of presentation); or

13.4.8 a petition is presented for the appointment of an administrator in relation to it and is not dismissed within two days or in the case of a petition presented by a creditor, within two days of actual service by that creditor on it; or

13.4.9 a distress, execution or other legal process is levied against any of its assets and is not discharged or paid out in full within three days; or

13.4.10 an encumbrancer takes possession of or a receiver or an administrator or similar official is appointed in respect of the whole or any part of its assets or undertaking; or

13.4.11 it ceases or suspends generally the payment of its debts or is unable to pay its debts or is deemed unable to pay its debts within the meaning of s123 Insolvency Act 1986; or

13.4.12    or if any event occurs which, under the applicable law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events mentioned above.

14  Data and GDPR

14.1 In this clause “Controller”, “Processor”, “Data Subject”, and “processing” will have the same meaning  as in the Data Legislation. “Personal Data” refers to any personal data (as defined in Data Legislation) which we are processing on your behalf.

14.2 Each party agrees to comply with applicable requirements of Data Legislation in the processing   of Personal Data. This clause does not relieve, remove or replace a party’s obligations under Data Legislation.

14.3 It is agreed that for the purposes of Data Legislation we are the Controller of any data processed by us with respect to the Service, please refer to our Privacy Policy (available on our website) for information about how we process personal data.

15 Non-Solicitation

15.1 You undertake that during the term of this Agreement and for a period of 12 months following termination or expiry of this Agreement neither you, nor any member of the Customer’s Group will, directly or indirectly (whether on your own account or on behalf of another)) employ or engage; or solicit or entice away from us; or endeavour to solicit or entice away from us any person who:

15.1.1 was employed or otherwise engaged by us in developing, supporting or maintaining the Service or delivering services to you or any member of the Customer’s Group; and

15.1.2 with whom you or any member of the Customer’s Group has had any contact with in the 12 months leading up to the date of termination or expiry of the Agreement.

16 General

16.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees), terrorism, insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”).The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party. Any request instruction or other document to be given hereunder shall be delivered in person or sent by first class post or email (either to the party’s registered office address or to such other address or email address as one party may notify to the other) and any such notice or other document shall be deemed to have been served (if delivered in person) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email transmission) upon the expiration of 12 hours after dispatch.

16.2 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of  such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

16.3 We will not be liable to you for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by our duly authorised representative in writing or expressly incorporated or referred to in this agreement.

16.4 You accept that the Software was not designed and produced to your individual requirements and that you are responsible for the selection of the Software.

16.5 Nothing in this agreement is intended to exclude a party’s liability for fraud or fraudulent concealment.

16.6 You are not entitled to assign or otherwise transfer this agreement of any of your rights or obligations, nor are you permitted to sub subscribe the use (in whole or in part) of the Service without our prior written consent.

16.7 All amounts stated in this Agreement are exclusive of value added tax and any value added  tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore.

16.8 Headings to clauses in this agreement are for the purpose of information and identification only and shall not be construed as forming part of this agreement.

16.9 This agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non exclusive jurisdiction of the English courts. Save as specified in clause 9, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available

16.10 Homesearch reserves the right: 

(a) to change these Terms;

(b) to withdraw or change the Homesearch Website and/or the Services (including content, format, design, scope, etc) at any time.

Homesearch will give You notice of any material changes to these Terms by email to the address provided by you on the Form. You may terminate the Agreement within 14 days of the date of such an email, in the manner stated in the email. If You do not terminate the Agreement within 14 days of the date of such email notification the revised and amended Terms will apply to the Agreement on the expiry of such notification period.