HOMEOFPROPERTY.CO.UK - TERMS OF SUBSCRIPTION
1.
INTERPRETATION
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
"Company" means Midland News Association Limited (company number 00483353) with registered office at 51-53 Queen Street, Wolverhampton, WV1 1ES;
"Contract" means the contract formed pursuant to clause 2 to provide the Services, including these Terms and including any variations which may be agreed from time to time in accordance with clauses 2.3 - 2.5;
"Initial Period" means the initial period of the Contract as confirmed in the Company's acknowledgement of Subscription;
"Subscriber" means the person, firm or entity who has entered into the Contract for Services;
"Subscriber's Client" means any person, firm or entity on behalf of whom a Subscriber is authorised to submit Subscriber Property Data to the Website;
"Subscriber Property Data" means information relating to properties available for sale/let submitted by a Subscriber in accordance with these Terms for listing on the Website;
"Subscription Fees" means the fees payable for the Services pursuant to clause 6;
"Subscriber Location" means such place/places as notified to the Company on the application form for Subscription from which a Subscriber runs, markets or administers the Relevant Business;
"Subscription" means Subscription to the Company's Website for the purposes of the provision of the Services to the Subscriber in accordance with these Terms;
"Privacy Policy" means the privacy policy adopted by the Company from time to time and available on the Website;
"Relevant Business" means the business of a residential or commercial letting agent, a residential or commercial estate agent, a residential or commercial property developer or a residential or commercial landlord;
"Services" means the provision of (a) an internet based residential and commercial property listing service and (b) any associated marketing or other services to be provided by the Company under the Contract as described in the acknowledgement from the Company pursuant to clause 2;
"Terms" means these terms of business;
"User" means any person visiting the Website;
"User Information" means any contact details or other information relating to Users provided to the Company or originating from the User accessing the Website; and
"Website" means the website www.homeofproperty.co.uk which is operated by the Company.
"Company" means Midland News Association Limited (company number 00483353) with registered office at 51-53 Queen Street, Wolverhampton, WV1 1ES;
"Contract" means the contract formed pursuant to clause 2 to provide the Services, including these Terms and including any variations which may be agreed from time to time in accordance with clauses 2.3 - 2.5;
"Initial Period" means the initial period of the Contract as confirmed in the Company's acknowledgement of Subscription;
"Subscriber" means the person, firm or entity who has entered into the Contract for Services;
"Subscriber's Client" means any person, firm or entity on behalf of whom a Subscriber is authorised to submit Subscriber Property Data to the Website;
"Subscriber Property Data" means information relating to properties available for sale/let submitted by a Subscriber in accordance with these Terms for listing on the Website;
"Subscription Fees" means the fees payable for the Services pursuant to clause 6;
"Subscriber Location" means such place/places as notified to the Company on the application form for Subscription from which a Subscriber runs, markets or administers the Relevant Business;
"Subscription" means Subscription to the Company's Website for the purposes of the provision of the Services to the Subscriber in accordance with these Terms;
"Privacy Policy" means the privacy policy adopted by the Company from time to time and available on the Website;
"Relevant Business" means the business of a residential or commercial letting agent, a residential or commercial estate agent, a residential or commercial property developer or a residential or commercial landlord;
"Services" means the provision of (a) an internet based residential and commercial property listing service and (b) any associated marketing or other services to be provided by the Company under the Contract as described in the acknowledgement from the Company pursuant to clause 2;
"Terms" means these terms of business;
"User" means any person visiting the Website;
"User Information" means any contact details or other information relating to Users provided to the Company or originating from the User accessing the Website; and
"Website" means the website www.homeofproperty.co.uk which is operated by the Company.
2.
CONTRACT
2.1
The Contract is formed between the Company and the Subscriber on receipt by the Subscriber of an acknowledgement from the Company that the Subscriber's application for Subscription has been accepted.
2.2
The Contract will be governed by these Terms to the exclusion of all other terms and conditions whether express or implied, and the Subscriber acknowledges that he has not entered into this Contract in reliance on any representation or statement made by the Company which is not included in these Terms.
2.3
Subject to clauses 2.4 and 2.5 below, no purported variation to these Terms or to the Contract shall have any effect unless expressly agreed in writing and signed by a duly authorised representative of the Company.
2.4
The Subscriber acknowledges that Subscription is granted by the Company on the basis of the information contained in the Subscription application form. Any purported use by the Subscriber of any service not provided for in the application form, or purported use of the Services by the Subscriber from any Subscriber Location not detailed in the application form, shall be deemed to be a variation of the Contract and additional Subscription Fees may be payable under clause 6.
2.5
The Company reserves the right to amend these Terms at any time. Where such amendment is proposed, the Company shall notify the Subscriber by email, to the email address provided in the application form, not less than 30 days prior to the proposed amendment taking effect. Where such amendment is not acceptable to the Subscriber, the Subscriber may serve notice to terminate the Contract in accordance with clause 9.1. If the Subscriber does not serve such notice within the above 30 day period then the amendment shall take effect at the end of such period.
3.
THE COMPANY'S OBLIGATIONS
The Company shall:
3.1
during the duration of the Contract, provide the Services to the Subscriber in accordance with these Terms;
3.2
use commercially reasonable efforts to ensure and maintain the availability of the Website;
3.3
subject to the type of Subscription granted, provide the Subscriber with a Subscriber profile on the Website, the content of which shall be subject to the prior approval of the Company;
3.4
utilise Subscriber Property Data of the Subscriber in accordance with clause 5 below;
3.5
as soon as reasonably practicable, forward all enquiries from Users in relation to any Subscriber Property Data to the contact details provided for the relevant Subscriber Location, and where the Company becomes aware of any failure by it to comply with this obligation in relation to notification, it shall notify the Subscriber within 2 Business Days of becoming aware of such failure;
3.6
except where a delay results from the Subscriber Property Data requiring manual upload, use commercially reasonable efforts to ensure that Subscriber Property Data submitted in accordance with clause 5 is uploaded to the Website within one Business Day of receipt;
3.7
permit the Subscriber, subject to any restrictions notified to the Subscriber by the Company from time to time, to use the Company logo, name and the Website address in the Subscriber's promotional material in connection with the Services; and
3.8
use reasonable commercial efforts to promote the Website to prospective Users throughout West Midlands and Shropshire.
4.
SUBSCRIBER OBLIGATIONS
4.1
The Subscriber hereby undertakes to co-operate fully with the Company and relevant third parties in all matters relating to the Contract, including by (but not limited to):
4.1.1
promptly paying the Subscription Fees due to the Company in accordance with clause 6 below;
4.1.2
throughout the duration of the Contract, operating the Relevant Business and not misrepresenting or substantially altering the nature of that business;
4.1.3
providing contact details, including email addresses, for each Subscriber Location and advising the Company as soon as possible of any changes to this information or any technical problem which may result in any communication from the Company to any Subscriber Location not being received;
4.1.4
providing the Subscriber Property Data in accordance with these Terms;
4.1.5
complying with all relevant legislation, regulations, industry standards and best practices applicable to the Relevant Business and procure compliance to the same by all Subscriber Clients;
4.1.6
using commercially reasonable efforts to ensure that all emails received at any Subscriber Location in connection with the Services from either the Company or a User are replied to or acknowledged on the day received if such day is a Business Day, or where such day is not a Business Day, by 12pm on the next following Business Day; and
4.1.7
using commercially reasonable efforts to ensure that all telephone enquiries received at any Subscriber Location in connection with the Services from either the Company or a User are replied to or acknowledged within 2 hours of being received on a Business Day, or where such day is not a Business Day, by 12pm on the next following Business Day.
4.2
The Subscriber will not without the prior written consent of the Company sell or transfer its Subscription or permit any third party access to any of the Services provided to the Subscriber by the Company.
4.3
Subject to clause 3.7, the Subscriber will not without the prior written approval of the Company publish or distribute any marketing or other literature which contains any reference to the Subscriber's relationship with the Company or any content from the Website.
5.
SUBSCRIBER PROPERTY DATA
5.1
The Subscriber agrees that Subscriber Property Data provided for publication on the Website shall:
5.1.1
relate only to property or land available for sale or letting and which the Subscriber is authorised to market or let;
5.1.2
accord with any specification or format as requested by the Company and be provided in such a way that will not impede the operation of the Website or hinder the use of the Website by the Users;
5.1.3
comply with all relevant legislation, regulations, industry standards and best practices as apply to the Relevant Business and also to the marketing of land or property, as amended from time to time;
5.1.4
be accurate and complete;
5.1.5
not include details of a Subscriber's fees, commissions or services;
5.1.6
not include any links or references to any external websites;
5.1.7
not include any content of an offensive nature or which could bring the Website, the Services or the Company into disrepute;
5.1.8
not include information that the Company deems to be inappropriate;
5.1.9
not include any comparison to any third party or any other Subscriber who may be a competitor;
5.1.10
not include any information which may breach any privacy or confidentiality obligations of the Company or the Subscriber;
5.1.11
include only images which relate solely to the land or property being the subject of the Subscriber Property Data, or to the surrounding area;
5.1.12
not include, so far as the Subscriber is aware, any viruses or other harmful code or other content which may be detrimental to the running of the Website; and
5.1.13
not, when uploaded to the Website, breach any contract with any third party or infringe any intellectual property or proprietary right of any third party.
5.2
The Subscriber agrees to update the Subscriber Property Data and shall ensure that where there is a material change to any such data or where such data is found to be incorrect or inaccurate the Subscriber shall submit amended data for publication within one Business Day of such change or discovery.
5.3
The Subscriber agrees to use all reasonable efforts to assist the Company in resolving any issues regarding improper reproduction or storage of any Subscriber Property Data which is undertaken without the Company's permission.
5.4
The Subscriber agrees and acknowledges that the Company has the right to publish the Subscriber Property Data on other internet portals belonging to or being under the control of the Company.
5.5
The Subscriber agrees that where any property being the subject of Subscriber Property Data is sold or let, the Subscriber will notify the Company within one Business Day that such Subscriber Property Data can be removed from the Website. Notwithstanding this obligation on the Subscriber, the Company has the right, following the receipt of such notification from the Subscriber to retain the Subscriber Property Data on the Website for up to seven Business Days provided that any advertisement containing such Subscriber Property Data is clearly marked with a 'Sold' or 'Let' banner.
5.6
The Subscriber agrees to indemnify the Company against any liability, third party claim or action whatsoever resulting from the Subscriber's failure to provide any Subscriber Property Data in accordance with these Terms.
5.7
The Company agrees to preserve the integrity of the Subscriber Property Data and use reasonable commercial efforts to ensure that in handling the data it is not changed in such a way so as to misrepresent the content.
5.8
The Company accepts no liability as to the accuracy of Subscriber Property Data. Subscriber Property Data submitted in accordance with these Terms shall not be checked or verified prior to being uploaded to the Website, however, the Company reserves the right to edit, review or remove any Subscriber Property Data which, in the opinion of the Company, breaches any of these Terms. Where any Subscriber Property Data has been edited or removed in accordance with this clause, the Company shall use reasonable commercial efforts to inform the Subscriber of such change within one Business Day.
5.9
The Company reserve the right to change the specification or format in which Subscriber Property Data must be submitted. Where such changes are proposed, Subscribers will be informed no less than 30 days in advance of such changes coming into effect, except where such changes are required in order for the Company to maintain the availability and performance of the Website, in which case such changes will be notified to Subscribers and become effective immediately.
5.10
The Company reserves the right, where a Subscriber submits Subscriber Property Data in relation to a number of properties of a similar nature or value, to collate such data into a single advertisement on the Website.
6.
PAYMENT
6.1
The Subscriber shall pay the Subscription Fees due in accordance with the Company's applicable fee structure in place from time to time, in relation to the Services provided to that Subscriber.
6.2
The Company reserves the right, following the expiry of the Initial Period, to vary its fee structure from time to time. Where any such change is proposed, the Company shall provide the Subscriber with no less than 30 days notice in advance of any change becoming effective.
6.3
All prices detailed in the Company's fee structure shall be stated exclusive of VAT which, if lawfully chargeable, shall be paid by the Subscriber in addition to the Subscription Fees due. The Company's VAT registration number is 66-5365-33.
6.4
Notwithstanding the provisions of clause 6.1 above, where, in the opinion of the Company, any Subscriber Property Data has not been provided in accordance with these Terms or where any additional service is provided to the Subscriber which the Company has not agreed to provide to the Subscriber pursuant to the Contract, the Company reserves the right to charge the Subscriber additional Subscription Fees in respect of the additional Services deemed to having been provided to the Subscriber.
6.5
Unless otherwise agreed, the Subscriber shall make all payments of Subscription Fees to the Company by the method specified in the Subscriber's application form.
6.6
Where payments are to be made by direct debit, the nominated account will be debited no less than 14 days following the date of the invoice in accordance with the rules of the Direct Debit Scheme operating in the UK from time to time.
6.7
Where payments are to be made by credit card, the nominated credit card will be debited in advance of the period to which the payment relates.
6.8
Unless otherwise agreed, the Company shall submit invoices in respect of Subscription Fees in advance of the period to which the payment relates. Payment is due 14 days from the date of the invoice. Unless a Subscriber informs the Company within 10 days of the date of the invoice of any suspected error, the Company will deem the invoice to be agreed and payment in full will be due in accordance with these Terms.
6.9
Where payment is not received in accordance with the above terms, the Company reserves the right to:
6.9.1
charge interest on the amount outstanding from the due date for payment at a rate of [3%] per month above the base lending rate of [Barclays Bank plc] from time to time, such interest accruing on a daily basis until payment is made, whether before or after any judgment;
6.9.2
remove the defaulting Subscriber's Subscriber Property Data from the Website immediately and suspend the Subscriber's Subscription; and
6.9.3
refer the unpaid invoices to the Company's debt collection agency or provide details of the default to other companies or agencies which may result in the Subscriber having a poor credit record.
7.
THE COMPANY'S LIABILITY
7.1
If the Company fails to comply with its obligations under the Contract its liability to the Subscriber in contract, tort, negligence or otherwise for any loss or damages whatsoever resulting shall be limited to a sum equal to 1.25 times the Subscription Fees paid by the Subscriber relating to the period of 90 days prior to date on which the claim arises.
7.2
The Company does not accept any liability in contract, tort, negligence or otherwise, in respect of:
7.2.1
any loss of profit;
7.2.2
any loss of business;
7.2.3
any loss of reputation or goodwill;
7.2.4
any indirect or consequential loss, damage or expense; or
7.2.5
any loss or corruption of any data.
7.3
All other liabilities, representations and warranties of the Company that would otherwise be part of this Contract are excluded to the fullest extent permissible by law, except that nothing in the Contract shall exclude liability for death or personal injury caused by negligence or for fraudulent misrepresentation.
8.
DATA PROTECTION
8.1
The Company and the Subscriber undertake to each other than in relation to the Contract they shall each comply with their respective obligations under the Data Protection Act 1998 (or any statutory modification or re-enactment thereof) with regard to any personal data received pursuant to the Contract.
8.2
The Company undertakes to the Subscriber that in complying with its obligations under the Contract it shall at all times act in accordance with the terms of the Privacy Policy.
9.
TERMINATION
9.1
Subject to clauses 9.2 and 9.3 below, the Contract shall be for the Initial Period, after which it shall continue, subject to these Terms, unless terminated by either party by giving notice in writing to the other party of its intention to terminate. Such notice shall be given not less than 30 days prior to the proposed termination and shall expire on the last day of a calendar month.
9.2
The Company may terminate the Contract by notice in writing effective immediately if a court orders that the Subscriber be wound up, or the Subscriber adopts a resolution for winding up (otherwise than in furtherance of a bona fide scheme for solvent amalgamation or reconstruction) or has an administrator, administrative receiver or receiver appointed in respect of all or any of its undertaking or assets (or where any such action occurs in any other jurisdiction to which the Subscriber is subject and such action has an effect similar or equivalent to any of the foregoing events), or is unable to pay its debts as they fall due, or attempts to make or makes any arrangement or composition with or for the benefit of its creditors.
9.3
The Company may terminate the Contract without notice if, in the opinion of the Company, the Subscriber commits any material breach of any term, or any condition or warranty contained in these Terms. Without limiting the scope of this clause, a breach by the Subscriber of any of clauses 6 or 8 will be deemed to be a material breach.
9.4
The Company may terminate the Contract, by notice in writing effective immediately, if, at any time, in the opinion of the Company, the Subscriber has become unable to comply with any term, or any condition or warranty contained in these Terms.
9.5
Upon any termination of the Contract, the Subscriber shall be liable to the Company for all sums due to the Company at the date of termination. For the avoidance of doubt, the Company shall not have any liability to the Subscriber for the partial repayment of any Subscription Fees paid prior to the termination date.
10.
MISCELLANEOUS
10.1
If any of the Terms are held to be void or unenforceable by any reason of law, they shall be void or unenforceable to that extent only and no further and all other Terms shall remain valid and fully enforceable.
10.2
The failure of either party to exercise or enforce any right under the Contract shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
10.3
These Terms and the information provided in the Subscriber's application form and the Company's acknowledgment hereof shall constitute the entire agreement between the parties and shall supersede any prior agreement or arrangement between the parties in relation to the Services.
10.4
The Contract is not intended to confer a benefit on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise. For the avoidance of doubt, no contractual relationship is formed pursuant to these Terms between the Company and any of the Subscriber's Clients and no Subscriber Client shall have any right to enforce any of these Terms or any other terms against the Company.
10.5
The Subscriber may not assign or transfer its rights or delegate its duties under the Contract either in whole or in part without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed). Where any such assignment is authorised, the Subscriber shall remain liable to the Company for any breach of Contract of its assignee.
10.6
The Company may assign the Contract in whole or part and/or delegate the performance of its obligations without reference to the Subscriber.
10.7
The Company shall not be liable or responsible for any loss or damage caused by delay in the performance or non-performance of its obligations under the Contract where the same is occasioned by acts or omissions of the Subscriber, strikes, lock-out or trade dispute, or any other cause whatsoever beyond the Company's reasonable control including but not limited to any failure of equipment, loss of power supply, act of God, war, terrorism, civil disturbance, government or parliamentary restrictions, prohibitions or enactments of any kind.
10.8
The Contract shall be governed by and construed in all respects in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English courts in respect of any dispute or claim arising out of or relating to the Contract.