PARKMOVE TERMS AND CONDITIONS
The following definitions may reference other words within the following list. To fully understand the context of each of the definitions, cross-referencing may be appropriate.
The following definitions and rules apply in this Agreement:
“Affiliate” – relating to a company, subsidiary or holding company of that company, and any subsidiary of a holding company of that company;
“Application” – relating to Parkmove providing Services to the Client in light of the requirements set out in the Order;
“Authorised Users” – relating to all employees, agents and independent contractors permitted by the Client to use the Services (refer to Clause 3.2);
“Business Day” – relating to all days except for Saturdays, Sundays and any designated Bank Holiday;
“Business Hours” – relating to time between 9:00am to 5:00pm on a Business Day:
“Client” – relating to the recipient of Services from the Provider;
“Client Data” – relating to data being logged into the Application by the Client, an Authorised User or the Provider on behalf of the Client;
“Client Default” – see Clause 11.2;
“Client Personal Data” – see Clause 7.3;
“Commencement Date” – see Clause 2.2;
“Conditions” – relating to these terms and conditions, amendable subject to Clause 15.6;
“Contract” – relating to the contract between the Client and the Provider for the supply of Services, subject to these Conditions;
“Custom Development” – relating to any Update and/or New Release commissions from the Provider by or on behalf of the Client;
“Data Controller” – defined by Data Protection Legislation;
“Data Feed Fees” – relating to all fees payable by the Client to the Provider with reference to the Order;
“Data Feed Services” – relating to Schedule 3 to be provided by the Provider to the Client with reference to the Order;
“Data Processor” – defined by Data Protection Legislation;
“Data Protection Legislation” – prior to 25th May 2018, the Data Protection Act 1998, and from 25th May 2018, the GDPR;
“Data Subject” – defined by GDPR;
“Data Subject Rights” – relating to the rights of Data Subjects set out in Chapter III of GDPR;
“Documentation” – relating to any operating manuals, user instructions, technical literature, online help and all other documentation and materials supplied by the Provider to the Client in relation to the Services;
“DocuSign Terms” – https://www.docusign.com/company/terms-and-conditions/reseller;
“Downtime” – relating to any time period where the Services are not available to the Client;
“Parkmove” – relating to the Provider’s proprietary hosted software solutions;
“Files” – relating to electronic files containing property information designed by the Provider and which are available to the Provider from the Client in relation to the Data Feed Service;
“GDPR” – relating to the EU General Date Protection Regulations (Regulations (EU) 2016/679) and any subsequent legislation enacted by the United Kingdom following the withdrawal of the United Kingdom from the European Union;
“Geo Data Terms” – relating to the end user licence terms for UK geographic data set out in Schedule 6, subject to update;
“Go Live Date” – relating to the date on which the Client pays the relevant fees to the Provider in respect of each Application;
“Holding Company” – defined by s. 1159 (1) of the Companies Act 2006;
“Indemnified Party” – see Clause 9.5;
“Indemnifying Party” – see Clause 9.5(a);
“Indemnity Claim” – see Clause 9.5;
“Initial Subjection Term” – see Clause 13.1;
“Intellectual Property Rights” – relating to all intellectual property rights, whether registered or unregistered and including all Applications and rights to apply for and be granted, renewals and extensions of, and rights to claim priority from, such rights and all similar rights or forms of protection in any part of the world;
“New Release” – relating to an updated version of an Application that is publicly marketed and offered subscription by the Provider in the course of normal business, which contains such significant differences from the previous releases that it would be accepted in the marketplace to constitute a New Release of the Application;
“Order” – relating to the Client’s order for Services as set out on the relevant forms;
“Personal Data” – defined by Data Protection Legislation;
“Personal Data Breach” – defined by GDPR;
“Portals” – relating to online property portals that the Client may request copies of property listing details to be made available in the Files;
“Provider” – Parkmove Ltd, a company registers in England Wales, with registered number 11158790 and with its registered office at 8-9 Red Lion Street, Stamford, Lincolnshire, PE9 1PA;
“Provider IP Claim” – see Clause 9.1;
“Provide Website” – relating to websites operated by the Provider or Affiliates;
“Renewal Term” – see Clause 13.1;
“Service Fees” – relating to the fees payable by the Client to the Provider in respect of the Services supplied, as set out in the Order, or otherwise notified to the Client by the Provider;
“Services” – relating to services supplied by the Provider to the Client under the Contract, including here appropriate the Data Feed Services, and the Support Services, set out in the Order and/or Documentation;
“Sub-Processor” – see Clause 7.4(d);
“Subscription Term” – see Initial Subscription Term and Renewal Term;
“Support Services” – see Schedule 1;
“Surviving Provisions” – see Clauses 1, 2, 7, 8, 9, 10.2, 12.3, 13, 14 and 15 and Paragraph 6 of Schedule 2 and Paragraph 6 of Schedule 3 relating to relevant Services;
“Third Party Licences” – relating to DocuSign Terms and any other licences that the Provider may notify the Client;
“Trial Period” – see Clause 6.1;
“Trial Services” – relating to services similar to all or part of the Services the Provider supplies to the Client on a trial basis;
“Update” – relates to the modernising of an Application to correct faults, add functionality or otherwise amends or upgrades the Application, but which is distinguishable from a New Release;
“User Subscriptions” – relating to the subscriptions purchased by the Client, enabling Authorised users to access and use the Services and the Documentation in accordance with the Contract;
“VAT” – relating to value added tax or any equivalent tax chargeable in the United Kingdom or elsewhere;
“Virus” – relating to any device, including any software, code, file or programme, which may:
(i) prevent, impair or otherwise adversely affect the operation of any computer software hardware or network, any telecommunication service, equipment or network or any other service or device;
(ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or date, including the reliability of any programme or data, whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise; or
(iii) adversely affect the user experience, including worms, Trojan horses, other relevant viruses and other similar devices.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision also includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to “writing” or “written” refers to all relevant written communication, including electronic communication, between relevant parties to the Contract,
2. Basis of Contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only deemed to be accepted:
(a) when the Provider issues a written acceptance of the Order; or
(b) on the relevant Go Live Date, at which point any on which date, the Contract shall have a Commencement Date.
2.3 Any samples, drawings, descriptive or advertising issued by the Provider, and any descriptions or illustrations contained in the Provider’s catalogues or brochures, are issued for the purpose of giving an approximate concept of the Services described therein. They shall not form part of the Contract or have any contractual force until stipulations and requirements are highlighted in the Order from the Client to the Provider and both parties agree to those requests.
3. User Subscriptions
3.1 The Provider hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to access and use the Services and the Documentation during the Subscription Term solely for the Clients internal business operations.
3.2 In relation to the Authorised Users, the Client accepts that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions they have purchased;
(b) they will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, and the previous Authorised User ceases to have any right to access or use the Services or Documentation;
(c) each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised user shall keep their password confidential;
(d) it shall maintain a written, up-to-date list of current Authorised Users and provide such lists to the Provider within 5 Business Days of the Provider’s written request at any time;
(e) it shall allow the Provider to audit the Services to establish the name and password of each Authorised User. The Provider may conduct no more than one audit per quarter m as its own expense, with reasonable prior notice, and in such a manner as not to interfere substantially with the Client’s normal conduct of business;
(f) if any of the audits referred to in Clause 3.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Provider’s other rights, the Client shall promptly disable such passwords and the Provider shall not issue any new passwords to the relevant, unauthorised individual; and
(g) if any of the audits referred to in Clause 3.2(3) reveal that the Client has underpaid Service Fees to the Provider, then without prejudice to the Provider’s other rights, the Client shall pay to the Provider an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
3.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property, and the Provider reserves the right, without liability to the Client or prejudice to its other rights, to disable the Client’s access to any material that breaches the provisions of Clause 3.3.
3.4 The Client shall not:
(a) Except as permitted by law or as necessary to access and use the Services in accordance with the Contract:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application or Documentation in any form or media or by any means;
ii. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application;
(b) access all or any part of the Services and Documentation to build a product or service which competes with the Service or the Documentation;
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Documentation available to any third party except the Authorised Users; or
(d) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under Clause 3.
3.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any unauthorised access or use, promptly notify the Provider.
4. Additional User Subscriptions
4.1 During any Subscription Term, the Client may purchase additional User Subscriptions in accordance with Clause 4.2 and Clause 4.3.
4.2 If the Client wises to purchase addition User Subscriptions, the Client shall notify the Provider in writing. The Provider shall respond to the Client with approval or rejection of the request. If the Provider approves the request, the Provider shall activate the additional User Subscriptions within 30 Business Days of its approval of the Client’s request.
4.3 If the Provider approves the Client’s request to purchase additional User Subscriptions, the Client shall, within 30 Business Days of the date of the Provider’s invoice, pay the Provider the relevant Service Fees for such additional User Subscriptions and, if such addition User Subscriptions are purchased by the Client part way through the Initial Subscription Term or any Renewal Term, such Service Fees shall be pro-rated from the date of activation by the Provider for the remainder of the Initial Subscription Term or then current Renewal Term.
4.4 During the Initial Subscription Term, the number of User Subscriptions may be increased in accordance with Clause 4, but may not be reduced .
5. Supply of Services
5.1 During the Subscription Term, the Provider shall use commercially reasonable endeavours to make the Services and Documentation available to the Client 24 hours a day, 7 days a week, but the Client acknowledges that there may be Downtime for:
(a) planned maintenance;
(b) unscheduled maintenance; or
(c) circumstance outside of the Provider’s reasonable control, provided that in each case that the Provider shall use commercially reasonable endeavours to give the Client notice of any Downtime in advance and to remedy any Downtime as soon as reasonably practicable.
5.2 The Services do not include any New Releases or Custom Developments.
6.1 If the Provider agrees to provide Trial Services to the Client, the trial period will run from the commencement of the Trial Services up until either:
(a) the expiry of the trial period notified to the Client by the Provider; or
(b) the Go Live Date of any related services, whichever is the earlier (the “Trial Period”).
6.2 The Provider provides the Trial Services to the Client in consideration to all warranties and representations, whether express or implied, including as to the quality, accuracy, completeness or fitness for purpose of the Trial Services, are, to the fullest extent permitted by law, excluded.
6.3 On expiry of the Trial Period, the Provider may delete any Client Data entered by the Client into any Trial Services, unless the Client purchases a subscription to the Services before expiry or termination of the Trial Period.
7. Client Data
7.1 The Client shall own all Intellectual Property Rights of the Client Data and is solely responsible for the legality, reliability, integrity, accuracy and quality of the Client Data.
7.2 The Provider shall follow its archiving procedures for Client Data, as such procedures may be amended by the Provider in its sole discretion. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Provider to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest copy of such Client Date maintained by the Provider. The Provider shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party, except those third parties sub-contracted by the Provider to perform services related to Client Data maintenance and back-up.
7.3 The Provider and the Client acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and the Provider is the Data Processor of any Personal Data that the Client supplies to the Provider under the Contract. The categories of Client Personal Data to be processed by the Provider and the processing activities to be performed under the Contract are:
7.4 The Provider agrees:
(a) to process the Client Personal Data only in accordance with the Client’s written instructions, unless required to do otherwise by EU and/or UK law (in this situation, the Provider shall inform the Client of that legal requirement unless prevented to do so by law);
(b) to ensure that staff involved in processing the Client Personal Data are under appropriate contractual or statutory duties of confidentiality;
(c) to implement appropriate technical and organisational measures to ensure a level or security for the Client Personal Data appropriate to the risks associated with the Provider’s processing of the Client Personal Data;
(d) not to engage another processor (“Sub-Processor”) of the Client Personal Data without the Client’s prior written approval and to ensure that any Sub-Processor is bound by obligations the same as those in Clause 7.4 with respect to the Client Personal Data;
(e) to assist the Client by appropriate technical and organisational measures to enable the Client to respond to requests from Data Subjects exercising their Data Subject Rights;
(f) to provide the Client with reasonable assistance in ensuring company with the Client’s obligations under Articles 32-36 inclusive of GDPR;
(g) on termination or expiry of the Subscription Term, to delete or return, at the Client’s option, all existing copies of the Client Personal Data in its control or possession, unless retention is required by EU and/or UK law;
(h) to report any Personal Data Breach relating to the Client Personal Data to the Client without undue delay;
(i) to may available to the Client all information in its possession or control that is necessary to demonstrate the Provider’s compliance with its obligations under Clause 7.4; and
(j) to allow the Client, on reasonable prior written notice and during Business Hours, reasonable access to the Provider’s premises, records, staff and systems, and reasonable related assistance, to enable the Client to verify the Providers compliant with its obligations under Clause 7.4.
8. Intellectual Property Rights
8.1 All Intellectual Property Rights, in or arising out of, or in connection with, the Services, other than Intellectual Property Rights in any materials provided by the Client, including the Applications and the Documentation, shall be owned by the Provider or its licensors.
8.2 Subject to the Client’s payment of the Service Fees, the Provider grants to the Client a worldwide, non-exclusive, royalty-free, non-transferrable licence during the Subscription Term to use the Intellectual Property Rights owned by the Provider solely to the extent necessary to receive and use the Services.
8.3 The Client grants the Provider a worldwide, non-exclusive, royalty-free, transferrable licence to copy and modify any materials provided by the Client to the Provider for the Subscription Term for the purpose of providing the Services to the Client and analysing the Client’s use of the Services to improve, and report on the Client’s use of, the Services.
9.1 If the Client complies with Clause 9.5, the Provider shall indemnify the Client against all losses and expenses incurred by the Client in connection with, either directly or indirectly, any claim brought by a third party against the Client alleging that the Client’s use of the Application in accordance with the Contract infringes that third party’s Intellectual Property Rights. This is subject to the Provider having no liability for any Provider intellectual property claim result resulting from the failure by the Client to use an Updated Version of any Application.
9.2 If, in the Provider’s reasonable opinion, the Client’s use of any Application may become the subject of a Provider intellectual property claim, then the Provider may:
(a) obtain for the Client the right to continue using those aspects of the relevant Application that are the subject of the Provider’s intellectual property claim; or
(b) replace or modify those aspects of the relevant Application that are the subject of a Provider intellectual property claim so that they become non-infringing, provided that the replaced or modified aspects have the same functionality.
9.3 If none of the remedies specified in Clause 9.2 are reasonably available to the Provider, the Provider may terminate the affected Service immediately by giving notice to the Client.
9.4 The Client shall indemnify the Provider, its Affiliates, and their respective directors, officers, employees, agents and subcontractors against all losses and expenses incurred by them arising out of or in connection with:
(a) the Client’s use of the Services other than in accordance with the Contract;
(b) the Client’s failure to use an Updated Version of the Service;
(c) any breach by the Client of applicable law or regulation, including any breach of the Data Protection Legislation; and/or
(d) any allegation or claim brought by a third party alleging that the Provider’s use of any materials provided by the Client to the Provider, including the Client Data, in accordance with the Contract, infringes that third party’s Intellectual Property Rights.
9.5 If a third party makes a claim, or notifies an intention to make a claim, against either party which may reasonably be considered likely to give rise to a liability under the indemnities in Clause 9, the indemnified party shall:
(a) as soon as reasonably practicable, give written notice of the Indemnity Claim to the other party specifying the nature of the Indemnity Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Indemnity Claim without prior written consent of the indemnifying party, with such consent not to be unreasonably withheld, conditioned or delayed;
(c) give the indemnifying party and its professional advisers access at reasonable times and on reasonable prior notice to its premises and its officers, directors, employees, agents, representatives and advisers, and to any relevant records and documents within its power or control to enable the indemnifying party to examine them and take copies, at the indemnifying party’s expense, for the purpose of assessing and defending the Indemnity Claim; and
(d) at the indemnifying party’s expense, take such action as the indemnifying party may reasonable request to avoid, dispute, compromise or defend the Indemnity Claim.
9.6 Each indemnified party shall mitigate its losses which may be incurred as a result of a matter that may give rise to a claim under Clause 9.
9.7 Clause 9.1 and Clause 9.2 sets out the Provider’s entire liability to the Client with respect to any Provider intellectual property claim.
10. Provider Obligations
10.1 The Provider shall perform the Services with reasonable skill and care.
10.2 The Provider does not warrant that:
(a) the Client’s use of the Services will be uninterrupted or free of errors; and/or
(b) the Services, Documentation or any information obtained by the Client through use of the Services will meet the Clients requirements.
10.3 The Provider is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer or data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays, and other problems inherent in the use of such communications networks and facilities.
11. Client Obligations
11.1 The Client shall:
(a) supply the Provider with:
(i) all necessary cooperation in relation to the Contract;
(ii) all necessary access to such information as may be required by the Provider to provide Services, including to Client Data, security access information and configuration services;
(b) comply with applicable law and regulations with respect to its activities under the Contract, including the Data Protection Legislation;
(c) comply with the terms of the Third Party Licences;
(d) carry out its obligations under the Contract in a timely and efficient manner;
(e) maintain in place throughout the Subscription Term a written agreement with any relevant Portal in respect of which the Data Feed Service is provided, enabling that Service to be provided;
(f) ensure that the Authorised Users use the Services and Documentation in accordance with the Contract, and shall be responsible for any breach by any Authorised User of the Contract as if the Client has committed the breach itself;
(g) ensure that its network and systems comply with the relevant specifications supplied to it by the Provider; and
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Provider’s data centres, and all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
11.2 If the Provider’s performance or any of its obligations under the Contract is prevents or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation:
(a) without limiting or affecting any other right or remedy available to it, the Provider may suspend performance of the Services until the Client remedies the Client Default, and rely on the Client Default to relieve it from the performance of any of its obligations, in each case to the extent the Client default prevents or delays the Provider’s performance of any of its obligations;
(b) the Provider shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Provider’s failure or delay in performing any of its obligations as set out in Clause 11.2; and/or
(c) the Client shall indemnify the Provider against any losses or expenses incurred by the Provider in connection with the Client default.
12. Service Fees
12.1 The Client shall pay the Service Fees to the Provider in accordance with Clause 12 and the relevant Order.
12.2 The Client shall pay the Service Fees to the Provider monthly in advance by Direct Debit.
12.3 If the Provider has not received payment by the due date for payment:
(a) the Provider may, without liability to the Client, disable the Client’s passwords, accounts and access to all or part of the Services and the Provider shall be under no obligation to supply any of the Services while any Service Fees remain unpaid; and
(b) interest shall accrue each day on the overdue amount at a rate equal to 4% per annum above the Bank of England’s base rate. In the event that the Bank of England’s interest rate falls below 0%, interest accrued shall be set at a rate of 4% from the due date for payment until the overdue amount is fully paid, whether before or after judgment.
12.4 All amounts and Services Frees stated or referred to in the Contract:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of VAT, which shall be payable in addition and at the same time as the relevant amount or fees at the appropriate rate.
12.5 All amounts due from the Client to the Provider under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding, other than any deduction or withholding of tax as required by law.
12.6 After expiry of the Initial Subscription Term, the Provider may increases the Service Fees payable by the Client at any time by giving the Client not less than 30 days’ notice.
13. Term and Termination
13.1 Each Contract shall commence on the relevant Commencement Date and shall continue for an initial term of 12 months from the first day of the month immediately following the relevant Go Live Date, after which the subscription shall automatically renew for successive 12-month periods unless terminated by either party giving the other no less than 90 days’ notice prior to the end of the Initial Subscription Term or the relevant Renewal Term, unless otherwise terminated in accordance with the provisions of the Contract.
13.2 The Provider may terminate the Data Feed Service immediately by giving notice, if the Provider is no longer able to provide the relevant Service as a result of the circumstances outside of the reasonable control of the Provider.
13.3 The Provider may terminate the Contract, or any Service, with immediate effect by giving notice to the Client if:
(a) the Client materially breaches the Contract, unless, in case where the breach is capable of a remedy, the Client remedies the breach within 30 days after receiving notice to do so, including any failure to pay an amount due to the Provider on the due date for payment;
(b) in the Provider’s reasonable opinion, the Client’s financial position is such that the Client’s capability adequately to fulfil its obligations under the Contract is in jeopardy; and/or
(c) there is a change of control of the Client.
13.4 On termination of the Contract for any reason:
(a) all licences granted under the Contract shall immediately terminate and the Client shall immediately cease all use of the Services and the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and all other items, including copies, belonging to the other party;
(c) the Provider may destroy or otherwise dispose of any of the Client Data in its possession unless the Provider receives, no later than 60 days after the effective date of termination of the Contract, a written request for the delivery to the Client of a copy of the Client Data in the Provider’s possession or control. The Provider shall use reasonable commercial endeavours to deliver the copy to the Client within 30 days of its receipt of such a written request, provided that the Client has paid all fees and charges outstanding at a resulting from termination, whether or not due at the date of termination. The Client shall pay all reasonable expenses incurred by the Provider in returning or disposing of Client Data;
(d) any rights, remedies, obligation or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract, which existing at or before the date of termination, shall not be affected or prejudiced; and
(e) the Surviving Provisions shall survive the termination of the Contract.
14. Limitation of Liability
*The Client’s attention is particularly drawn to this Clause*
14.1 Except as expressly and specifically provided in the Contract:
(a) the Client assumes sole responsibility for any Client Data hosted or processed using the Services and the Documentation. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts supplied to the Provider by the Client in connection with the Services, or any actions taken by the Provider at the Client’s direction;
(b) all warranties, representation, conditions and all other terms of any kind implied by law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
(c) the Services and Documentation are provided to the Client on an “as is” basis.
14.2 Nothing in the Contract excludes or limits the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation; and/or
(c) any other liability which cannot be excluded or limited by law.
14.3 Subject to Clause 14.1 and Clause 14.2:
(a) the Provider shall only be liable for direct losses arising out of or in connection with the Contract;
(b) the Provider shall not be liable for any damage caused by the use by the Client of any third party software integrated into, or accessed or used through, the Application; and
(c) the Provider’s total aggregate liability to the Client, whether in contract, tort, or otherwise, arising out of or in connection with the Contract, shall be limited to the total Service Fees paid during the 12 months immediately preceding the date on which the claim arose.
(a) A party shall disclose information not in the public domain relating to the other only if:
i. the person to whom the disclosure is made needs the information for the disclosing party to carry out its obligations under a Contract, and does not itself disclose it; and/or
ii. the law so requires.
15.2 Matters Beyond Reasonable Control
(a) Neither party shall be liable to the other if it fails to meet its obligations due to matters beyond its reasonable control.
(a) The Provider may at any time assign or otherwise create an interest I any of its rights and obligations under a Contract without the consent of the Client.
(b) The Client may not assign or otherwise create any interest in any of its rights and obligations under a Contract without the prior written consent of the Provider.
15.4 Entire Agreement
(a) The Contract constitutes the entire agreement between the parties relating to its subject matter and supersedes anything previously passing between them relevant to that subject matter.
15.5 No Reliance
(a) Each party acknowledges that, in entering into each Contract, it does not rely on anything that is not set out in that Contract.
(a) The Provider may vary these Conditions by giving notice to the Client. No other variation of the Contract shall be effective unless it is in writing and signed by the parties.
(a) No failure or delay by a party to exercise any right or remedy provided under any Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the future exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.8 Rights and Remedies
(a) The rights and remedies provided under each Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any medication to or deletion of a provision or part-provision under Clause 15.9 shall not affect the validity or enforceability of the rest of the Contract.
(a) Any notice given to either party under or in connection with the Contract shall be in writing and shall by delivered electronically via email, by hand or by pre-aid first-class post or other next working day delivery service at its registered office. Any notice will be deemed to be have been received:
i. if delivered electronically via email or by hand, on signature of a delivery receipt; or
ii. if sent by pre-paid or first-class post or other next working day delivery service, on the second Business Day after posting.
(b) Clause 15.10 does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
(a) Each Contract may be executed in counterparts, each of which when executed shall constitute a duplicate original, but the counterparts shall together constitute the same agreement.
15.12 No Partnership
(a) Nothing in the Contract is intended to establish any partnership, appoint either party the agent of the other, or otherwise authorise either party to commit the other in any way whatsoever.
15.13 Third Party Rights
(a) A person who is not a party to the Contract shall have no rights to enforce any term of the Contract.
15.14 Governing Law and Jurisdiction
(a) The construction, validity and performance of each Contract and all non-contractual obligations arising from or connected with each Contract shall be governed by the law of England and Wales and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts to resolve and dispute between them.
(b) In the event of a dispute arising between the parties, efforts will be made to resolve all relevant disputes through non-adjudicative means and any other relevant alternative dispute resolution method before referring the matter to the English Courts for litigation.
There are two ways of accessing support and contacting the technical support desk as follows:
- by emailing firstname.lastname@example.org; or
- by calling 0333 320 2088.
Any calls made by the Client to the Provider may be recorded for training and monitoring purposes. All calls will be logged, and the Provider reserves the right to monitor calls to ensure that a high quality is maintained.
The Provider shall respond to any telephone calls or emails by the method it deems most appropriate, which may be by telephone or email.
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 additionally at the Provider’s daily rate for this Service.
The Client shall supply to the Provider, its employees, agents and all other persons duly authorised by the Provider with full, safe and uninterrupted access, including remote access, to the Client’s systems and facilities as may be reasonably required by the Provider for the purpose of providing support.
The Client shall take all reasonable steps to ensure that the Services are operated in a proper manner and only by employees of the Client who are adequately trained on use of the Services.
The Client shall:
- co-operate with the Provider and supply any assistance or information as may reasonably be required by the Provider, including in relation to the diagnosis of any faults;
- report faults promptly and in sufficient detail to the Provider; and
- carry out regular updates and virus checks of systems from which it accesses the Application.
Support does not include:
- Site visits;
- recovery of data;
- general training issues;
- Customisation Services;
- support in respect of third party software, irrespective of whether or not supplied by the Provider to the Client;
- support in respect of the Client’s systems, network, hardware and/or any other equipment or associated components;
- updates to letters and agreements provided by third parties;
- professional advice in relation to any legal or compliance issues regarding property management or estate agency;
- 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 the Provider, including failure or fluctuation of electrical power;
- use of the Application in combination with any equipment or software not provided by the Provider or not designated by the Provider as being compatible;
- failure to use an up-to-date version of any computer operating system;
- computer viruses or malware;
- any unauthorised amendment or alteration to the Application made by the Client and/or a third party not expressly authorised by the Provider;
- operator error; and/or
- recovering or correcting data lost or corrupted by computer viruses.
The Client may not modify any databases within the Application and any such medication shall constitute an irremediable material breach, entitling the Provider to terminate the Contract immediately on notice to the Client.
Data Feed Services
If the Client elects to receive the Data Feed Services, and subject to payment by the Client of the Data Feed Service Fees, the Provider shall enable the Client to make available Files to the selected Portals that maintain an agreement with the Provider for this purpose.
- may change the specification of the Files at any time without notice to the Client;
- does not commit to provide the Files to the Portals on any particular frequency;
- shall not be liable for the accuracy, completeness or fitness for a particular purpose of the content of any of the Files provided by the Client;
- reserves the right to suspend or stop providing the Files to any or all Ports at any time without notice to the Client; and/or
- may access and use the data contained in the Files for its own business purposes at is discretion, and the Client grants to the Provider a worldwide, non-exclusive, perpetual, irrevocable, transferrable, sub-licencing right to the Files, and any Intellectual Property Rights in the Files, for this purpose.
- warrants that it is authorised to allow the upload of the information contained in each File on the Portals, including by having in place all necessary licences, authorisations and consents, and that is has in place a valid, enforceable, written agreement with each Portal provider before submitting Files to the Provider for transmission to the relevant Portal:
- shall not permit any third party to copy, reproduce, redistribute, download, republish transmit, display, adapt, alter, create derivative works from or otherwise extract or re-utilise any information made available on any Portal, whether for commercial gain or otherwise, without the prior written consent of the Provider;
- shall not permit any third party to reference or link, whether directly or indirectly, to any Provider Website without the prior written consent of the Provider; and/or
- shall be solely responsible for the content of any Files.
The Provider reserves the right to charge the Client for any Files made available at a future date.
The Provider may review the fees payable for the Data Feed Service on an annual basis and may change such fees by giving notice to the Client.
The Client acknowledges that the Files may contain bugs, errors and other problems that may causes system failures.
The Client acknowledges that the Files are provided on an “as is” basis without warranty of any kind, including as to accuracy, completeness and fitness for a particular purpose.
Your listings are with Parkmove and our portal partners as listed on the Website (which can change without notice). At any one time you will be able have five properties live for sale and unlimited properties marked as sold. We confirm that at the point of instruction we are a Member of the TPO scheme, and subscribe to its Code of Practice. Please ask us for a copy of the TPO’s Code of Practice if you require one.
IMPORTANT - You are required to disclose any information of which you are aware in relation to the property in a clear, and timely fashion. You must take all reasonable steps to ensure that all information and statements about the Property that you disclose to Parkmove and to potential buyers or their representatives whether oral, pictorial or written, are accurate and are not misleading with all material facts included. Furthermore, any answers to questions about the property must be truthful, materially complete and not misleading.
Parkmove will use reasonable commercial efforts to upload all property details on to our property portal networks at all times. However part of your listing may not entirely feed to our portal partners, it is your responsibility to check your listing and inform us of anything not appearing as instructed by you or any missing elements.
Parkmove will place your listing on third party website portals. By agreeing to these Terms and Conditions you acknowledge that; these websites are subject to change; that they may or may not be controlled by a third party; that Parkmove do not provide any guarantees or warranties that your listing will be live or a continued presence on these websites; and you further acknowledge that these third party website portals may at times experience issues with displaying properties including but not limited to feed issues and Parkmove is unable to provide any guarantees or warranties as to when a listing will be back up live and showing on any particular Third party website portal. All listings are dependent on the timings and length of times the listing will run.
Unless otherwise agreed with the Client, the Provider shall enable the Client to supply the following property information 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; and
- main property image, with a link back to additional images from the property recorded on the Portal.
This specification for Files is under constant development and the Provider reserves the right to change the property information that may be supplied to the Portals at any time without notice to the Client.