- You or Your: The person, firm, corporation or other organisation entering into this agreement with us by accepting these terms. Where the context so requires, You or Your includes your Authorised Users (if applicable).
- Us, We, or Our: Crofton & Associates (trading as PrimeResi).
- Affiliates: in respect of any person to whom the term Affiliate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 6.
- Services the provision of Materials.
- Materials: the materials described more fully in the invoice relating to this agreement.
- Subscriber Data: The data provided by you for use in conjunction with the Materials.
- Subscription Fee: The subscription fee for the Services to be provided under this agreement, as specified in our invoice relating to this agreement.
- Subscription Period: The period in respect of which a Subscription Fee is payable for any Service, as specified in our invoice relating to this agreement.
- Term: the period starting from the Start Date and expiring on the End Date as set out in Schedule 1.
2. AUTHORITY AND LICENCE FOR USE OF MATERIALS
2.1 We authorise you to use the Materials on a non-exclusive basis for the Term or which you agree to pay us the Subscription Fee.
2.2 This authority and licence starts when you enter into this agreement and ends
(a) if the Subscription Period expires without your agreeing to renew this agreement on the terms and Subscription Fee then applying; or
(b) If this agreement is terminated under clause 9.
3. YOUR OBLIGATIONS
(a) copy or otherwise reproduce any Materials nor any material relating to part of the Services, except as permitted under this agreement or authorised by us in writing; or
(b) Purport to assign or otherwise dispose of your rights under this agreement.
3.2 You acknowledge and agree that we and our licensors own all intellectual property rights in the Materials. Except as expressly stated in this agreement, this agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Materials or any related documentation.
3.3 Subject to clause 4 (Our obligations), you will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and all costs arising out of or in connection with your use of the Materials, provided that:
(a) You are given prompt notice of any such claim;
(b) We provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
(c) You are given sole authority to defend or settle the claim.
3.5 We reserve the right to suspend provision of the Services in the event that you fail to make payment of the Subscription Fee in accordance with the relevant invoice. In the event such right is exercised provision of the Services shall be restored on our receipt of full payment of the outstanding Subscription Fee and interest in accordance with the Late Payment of Commercial Debts Regulations 2002 and any associated statutory provisions concerning interest on late contractual payments.
4. OUR OBLIGATIONS
4.1 The foregoing sets out your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
4.2 We will use our best endeavours to ensure that Subscriber Data is maintained securely and is properly backed-up. In the event of any loss or damage to Subscriber Data, your sole and exclusive remedy shall be that we use our best endeavours to restore the lost or damaged Subscriber Data from the latest back up of such Subscriber Data. We shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by us to perform services related to Subscriber Data maintenance and back-up).
5.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) Is or becomes publicly known other than through any act or omission of the receiving party; or
(b) Was in the other party’s lawful possession before the disclosure; or
(c) Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) Is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
5.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
5.3 Each party shall use its best endeavours to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed except in accordance with the terms of this agreement.
5.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party (except, in our case, those third parties sub-contracted by us to perform services related to Subscriber Data maintenance and back-up).
5.5 We acknowledge that the Subscriber Data is your Confidential Information.
5.6 This clause shall survive termination of this agreement, however arising.
6.1 We give you no warranty or assurance, except as set out in clause 4 above. We declare and you acknowledge that all implied warranties and conditions are excluded to the maximum extent permitted by law
6.2 Our policy is to conduct our business at all times in a professional manner and to best practice standards. However, you should note in particular that we give you no warranty or assurance in respect of delivery dates of the Materials to the extent that such delivery is effected by third parties.
7.1 This clause sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
(a) Any breach of this agreement;
(b) Any use made by you of the Services or any part of them; and
(c) Any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this agreement.
7.2 Except as expressly and specifically provided in this agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
7.3 Nothing in this agreement excludes our liability:
(a) For death or personal injury caused by our negligence; or
(b) For fraud or fraudulent misrepresentation.
7.4 Subject to clause 8.3 above:
(a) we shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
(b) our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.
7.5 Under this clause, our liability includes that of any Affiliate and our and their respective agents, employees and sub-contractors, you includes any other party claiming through you and loss or damage includes any losses, damages, costs or expenses whatsoever or howsoever arising in connection with the Service, whether under this agreement or other agreement or in consequence of any misrepresentation, misstatement or tortious act or omission, including negligence.
7.6 We shall have no liability to you under this agreement if we are prevented from or delayed in performing our obligations under the agreement or from carrying on business by acts, events, omissions or accidents beyond our reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
8.1 This agreement will terminate if you are in material breach of any of its terms and if the breach is not remedied within the period of twenty working days after written notice of it has been given to you.
8.2 On termination of this agreement for any reason:
(a) All licences granted under this agreement shall immediately terminate;
(b) We may destroy or otherwise dispose of any of the Subscriber Data in our possession unless we receive, no later than ten days after the effective date of the termination or expiry of this agreement, a written request for the delivery to you of a print-out of the then most recent back-up of the Subscriber Data. We shall use reasonable endeavours to deliver the print-out to you within 30 days of receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in delivering such print-out; and
(c) Termination shall not affect or prejudice the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination.
8.3 No refunds shall be payable as a result of your early termination of this agreement.
9. GENERAL PROVISIONS
9.1 The rights provided under this agreement are granted to you only. You may not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement.
9.2 This agreement is not intended to benefit anyone other than the parties to it and, in particular, no term of this agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
9.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
9.4 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
9.5 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
9.6 This agreement and the Subscription Fee invoice constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this agreement. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently made or not) of any person (whether party to this agreement or not) other than as expressly set out in this agreement. The only remedy available to it for breach of the agreement shall be for breach of contract under the terms of this agreement.
9.7 English law governs this agreement and the parties submit to the non-exclusive jurisdiction of the English courts in respect of all claims (including non-contractual claims).