Software terms & conditions
LETTINGS GENIE TERMS & CONDITIONS OF BUSINESS
The Agent is in the business of Residential Letting and wishes to engage LG in the provision of Services incorporated in an Agreement.
Lettings Genie (LG) is in the business of the development, supply and operation of an on-line bespoke letting management system (LMS)
1 DEFINITIONS
The following expressions shall have the following meanings:
1.1 “The Agreement” means an agreement, signed by or on behalf of both LG and the Agent;
1.2 “The Services” mean the services to be provided by LG to the Agent as described in or appended to the Agreement
1.3 “The Fees” means the fees payable for the Services, as specified in the Agreement or appended to
1.4 “The Customer Data” means all and any information, data, computer files or other material supplied by the Agent to LG;
1.5 “The Deliverables” means any software, documentation or other material provided to the Agent by LG
1.6 “Intellectual Property Rights” means any patent, trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, know-how, confidential information or process, any application for any of the above, and any other intellectual Property Right recognised in any part of the world whether or not presently existing or applied for.
2 DURATION
The period as laid down in the Agreement.
3 SERVICES
3.1 LG will provide the Services to the Agent as laid down in the Agreement or appended to.
3.2 If either LG or the Agent suggest any change to the Services during the period of the Agreement this change must be mutually agreed and recorded in writing before it can take effect.
3.3 If the Agent should suggest any change to the Services LG will be entitled to charge the Agent at standard rates for the investigation and implementation of such a change.
3.4 The Services will be provided on a non exclusive basis.
4 AGENT OBLIGATIONS
4.1 The Agent will fulfil the obligations set out in the Agreement or appended to and cover any expenses incurred in such actions.
4.2 The Agent will provide LG with all information, materials and documentation, resources and facilities reasonably requested by LG to allow LG to supply the Services and the Deliverables.
4.3 The Agent will ensure that the staff, contractors and other suppliers it employees co-operate fully with LG and that no delay is experienced as a result of their actions or omissions.
4.4 The Agent will respond promptly to any request for information made by LG.
4.5 The Agent will take responsibility for the health and safety of any LG employee who is working on business premises under the control of the Agent.
5 INTELLECTUAL PROPERTY
5.1 Any products, materials or methodologies used by LG in carrying out the obligations contained in the Agreement are for the use of the Agent only and remain the property of LG. The Agent must not divulge the Intellectual Property Rights of LG or use them for any purpose other than accessing the Services in terms of the Agreement.
5.2 Except where specifically provided for in the description of Services contained within or appended to the Agreement, the Intellectual Property Rights which LG generates or supplies throughout the duration of this Agreement belong to LG. The Agent will assist LG to enjoy, defend and enforce these rights if necessary for the period of the Agreement.
5.3 Any Intellectual Property Rights belonging to the Agent that become known to or require to be used by LG to enable them to perform their obligations in terms of the Agreement remain the property of the Agent and must not be divulged to a third party.
6 FEES AND PAYMENT
6.1 The Fees payable for the Services shall be set out in the Agreement or appended thereto.
6.2 The Fees will be due in accordance with the terms set out in the Agreement or appended to.
6.3 LG must give thirty (30) days’ notice to the Agent for any change to Fees.
6.4 All Fees are exclusive of VAT.
6.5 All Fees are due for payment within 30 (thirty) days from invoice date.
6.6 LG reserves the right to charge interest on all late payments at a rate of 4% per annum above the base lending rate of Lloyds TSB Bank plc.
6.7 LG is also entitled to recover all reasonable expenses incurred in obtaining payment from the Agent where any payment due to LG is late.
6.8 LG shall retain records relating to the provision of Services under the Agreement for the term of the Agreement and for a period of one year thereafter.
7 TERMINATION
7.1 The Agreement shall continue for the period contained therein and thereafter shall continue until terminated by either party by giving at least three months notice in writing of its intention to terminate the Agreement, with no termination earlier than the initial minimum period of the Agreement.
7.2 LG shall have the right to terminate the Agreement with immediate effect if an Agent fails to make any payment when it becomes due and that sum remains unpaid for 30 (thirty) days from the date of invoice.
7.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
7.3.1 the other party commits a material breach of the Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
7.3.2 the other party commits a material breach of the Agreement which cannot be remedied under any circumstances; or
7.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
7.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
7.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
7.4 Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
8 AGENT WARRANTIES
8.1 The Agent warrants to LG that they have not been induced to enter into an Agreement by any warranties or representations, except those specifically contained in the Agreement as warranties.
8.2 The Agent warrants to LG that no Customer Data will infringe the Intellectual Property Rights of any third party, or contain anything which is obscene or defamatory, or which is malicious falsehood, or will breach any data protection legislation or principles.
8.3 The Agent warrants to LG that they may rightfully disclose the Customer Data to LG and that LG is entitled to retain, amend and disclose that information for the purpose of fulfilling the obligations it has under the Agreement. Without prejudice to the above the Agent also warrants that it has obtained the consent of any individual or organisation whose data is disclosed in this manner.
8.4 The Agent warrants to LG that all Customer Data is complete, up to date and correct and all changes to the Customer Data will be complete, up to date and correct.
9 SERVICE PROVIDER WARRANTIES
9.1 LG warrants that the Services to be supplied under the Agreement will be carried out with reasonable skill and care by suitably qualified personnel.
9.2 No representation or warranty is given that the Services of Deliverables will be error free or uninterrupted or that any such deficiencies can be corrected.
9.3 LG will supply all information, estimates and recommendations in good faith but cannot guarantee that the projected outcome will be achievable.
9.4 Unless expressly provided for in the Agreement all other guarantees, representations and warranties of any kind, whether express or implied, including without limitation, the implied warranties of satisfactory quality, merchantability and fitness for a particular purpose or ability to achieve a particular result are hereby excluded, so far as such exclusion or disclaimer is permitted under the applicable law.
9.5 In the event of any breach of any warranty in the Agreement, LG shall, as the Agent’s sole remedy, remedy such breach, and if LG is unable to remedy such breach, LG shall refund any fees paid for the year in which the Services, the subject of such claim, were supplied and the Agreement shall immediately terminate.
9.6 LG shall use its reasonable endeavours to correct any errors but does not warrant that all such errors can and will be corrected.
9.7 In the event of any breach of any warranty the Agent must notify LG within 3 months in order to benefit from the remedy mentioned above.
10 INDEMNITY
The Agent agrees to indemnify and hold LG and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against LG arising out of any breach by the Agent of the terms of the Agreement.
11 LIMITATION OF LIABILITY
11.1 Subject to clause 11.3, in no event shall LG be liable for any damages, including loss of business, loss of opportunity, loss of data, loss of profits or for any other indirect or consequential loss or damage whatsoever that is an indirect or secondary consequence of any act or omission of LG whether such damages were reasonably foreseeable or actually foreseen.
11.2 Subject to clause 11.3, the total liability of LG to an Agent under the Agreement shall not exceed the greater of either:
11.2.1 the sum for which LG carries comprehensive insurance cover pursuant to clause 12 below; OR
11.2.2 the total of all sums paid or due to LG by the Agent
11.3 Nothing in the Agreement shall exclude or limit the liability of LG for fraudulent misrepresentation by LG or an employee or agent of LG.
12 INSURANCE
During the term of the Agreement LG shall at its own expense maintain such insurances as required by any applicable law and as appropriate in respect of its obligations under the Agreement with an insurance company of repute. Such insurances shall include third party liability insurance with an indemnity limit of not less than £1 million GBP for each and every claim. LG shall on request supply copies of the relevant certificates of insurance to an Agent as evidence that such policies remain in force.
13 CONFIDENTIALITY
13.1 Any information marked “confidential” or which may reasonably be supposed to be confidential received by LG in performance of the obligations set out in the Agreement shall not be used without the Agent’s prior written consent except for the purposes of the Agreement or disclosed to any person other than to employees or agents of LG who have a need to know.
13.2 The Agent shall not disclose any information relating to the business and methods of LG learned or observed during the course of the Agreement.
13.3 The undertakings contained in 13.1 and 13.2 shall not apply to information that is lawfully known to the recipient at the time of disclosure or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is ordered to be disclosed to a regulatory body or a court of competent jurisdiction.
13.4 LG shall ensure that any person referred to in clause 13.1 is bound by similar confidentiality terms to those stated in this clause 13.
13.5 The confidentiality terms stated in clause 13 shall remain in full force and effect during the term of the Agreement and upon termination of the contract shall continue for a period of five (5) years.
14 FORCE MAJEURE
Neither party shall be liable to the other party for any delay or failure to perform any of its obligations under the Agreement if the delay or failure results from events or circumstances outside its reasonable control, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party in writing of the nature and extent of such events. If such circumstances persist for a continuous period of more than 28 days, either party may terminate the Agreement by written notice to the other party.
15 ASSIGNMENT
The Agreement is personal to the parties and neither the Agreement nor any rights, licences or obligations under it may be assigned by either party without the prior written approval of the other party.
16 WAIVER
Failure or neglect by either party to exercise any of its rights or remedies under the Agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole or part of the Agreement nor prejudice that party’s right to take subsequent action.
17 SEVERANCE
If any provision of the Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
18 NOTICES
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the most recent email address, fax number or address notified to the other party, and if sent by email shall unless the contrary is proved to be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error tree transmission report, or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting.
19 ENTIRE AGREEMENT
The Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. The Agreement may be varied only by a document signed by both parties.
20 GOVERNING LAW AND JURISDICTION
The Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction in the courts of England and Wales.
July 2010
