ONLINE SERVICES AGREEMENT BETWEEN HOMEFLOW LIMITED (“HOMEFLOW”) AND YOU (“CLIENT”)
IT IS AGREED as follows:
1.1 In these terms and conditions (except where the context requires otherwise) the following words shall have the following meanings:
“Advertising Services” has the meaning set out in clause 7.1;
“Advertising Services Terms and Conditions” means the provisions of clause 7 as set out in Section B;
“Advertising Term” means the period during which Homeflow shall provide the Advertising Services to the Client as set out in the Order Form;
“Agreement” means these terms and conditions and the Order Form;
“Agency Application” means the web tool set which Homeflow provides to estate agents to upload their property data, to manage property and user data, to create and manage the Website, the Web Services and other Services provided by Homeflow;
“Client Content” means: (i) all the text, images, audio, video or other kind of information (and the Intellectual Property Rights therein) loaded into the Agency Application by the Client or provided by the Client to Homeflow for use in connection with the Services; and (ii) all information (and the Intellectual Property Rights therein) relating to users of the Services, including but not limited to personal data (as has such meaning as set out in the Data Protection Act 1998) inputted via the Website or the Agency Application;
“Fees” means any and all amounts due from the Client to Homeflow in respect of the provision of the relevant Service as are set out or calculated in accordance with the Order Form;
“General Terms and Conditions” means the provisions of clauses 8 to 15 as set out in Section C;
“Homeflow Portals” means any and all property portal websites which are operated, owned, or controlled by Homeflow, and which operate using Homeflow’s website technology, as well as any and all third party websites on which Homeflow places property listings using its website technology for the purpose of providing certain Advertising Services;
“Homeflow Technology” means all technology developed by Homeflow and used to operate any Services provided by Homeflow to the Client or to any other party;
“Homeflow Website” means the website located at URL www.homeflow.co.uk;
“Intellectual Property Rights” means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trade marks, database rights, rights in designs, copyrights (including rights in computer software) (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and domain names and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions;
“Leads” means either an email or telephone call received by the Client from prospective buyers, renters, owners or any other party, who has contacted the Client using a form, or contact details supplied on, a Homeflow Portal;
“Order Form” means the order form (as may be amended from time to time by the parties in writing or by Homeflow pursuant to clause 9.1) indicating the Services to be provided to the Client under the Agreement;
“PPC Services” has the meaning set out in clause 8.1;
“PPC Services Terms and Conditions” means the provisions of clause 8;
“PPC Services Term” means the period during which Homeflow shall provide the PPC Services to the Client as set out in the Order Form;
“Services” means the Advertising Services, the PPC Services the Web Services and any other service provided by Homeflow to the Client;
“User” means a visitor or user of the Website, the Web Services, the Advertising Services, the PPC Services or any of the Services;
“Website” means the website the Client has created using the Agency Application;
“Web Services” has the meaning set out in clause 2.1;
“Web Services Terms and Conditions” means the provisions of clauses 2 to 6 as set out in Section A; and
“Web Services Term” means the period during which Homeflow shall provide the Web Services to the Client as set out in the Order Form.
SECTION A: Web Services Terms and Conditions
The Web Services
2.1 In consideration of the Client paying the Fees, and subject to clause 9.1, Homeflow shall:
2.1.1. provide the Client with the Agency Application;
2.1.2 enable the Client to use the Agency Application to create and manage the Website;
2.1.3 enable the Client to use the Agency Application to create, use and manage such additional Homeflow products and services as agreed between the parties; and
2.1.3 host the Agency Application, the Website and other additional Homeflow products or services on its servers, in accordance with the terms of the Agreement.
(the “Web Services“)
3.1 The Client shall not attempt to delete, obscure or alter any Homeflow logos, marks or any references to Homeflow or any other material (including advertisements) which Homeflow embeds or places on the Website.
3.2 The Client shall display on the Website at all times appropriate consumer-facing terms and conditions for its protection.
3.3 The Client shall be wholly responsible for the process of stocking and publishing on the Website all and any applicable Client Content, such as text, images, audio, video and other information, other than as specified on the Order Form.
3.4 The Client shall not cause to be used or allow to be used, any automated, manual or other means to obtain, harvest or aggregate any data, software, code or other content from the Website including, without limitation:
3.4.1 computer robots or “bots”;
3.4.2 “spiders”; or
3.4.3 the practice of “screen scraping” or other means to systematically search and/or extract information or data (whether substantial or insubstantial) from the Website, except as expressly agreed by Homeflow in writing.
3.5 The Client shall not permit any data from the Website to be published on any website operated by a competitor of Homeflow (which shall include any property portal website) except as expressly agreed by Homeflow in writing.
4.1 All Intellectual Property Rights in the Agency Application, the Homeflow Website and the Homeflow Technology belong to Homeflow. Homeflow grants to the Client for the Web Services Term a non-exclusive, non-transferable, royalty-free licence to use the Agency Application for the purpose of receiving the Services pursuant to clause 2.1. For the avoidance of doubt, the scope of this licence does not permit the modification of any underlying templates of the Agency Application by the Client.
5.1 Homeflow does not warrant the use of the Website or the Web Services will meet the Client’s internal business requirements or that the operation of the Website, the Agency Application, or any Web Services will be uninterrupted or error-free.
Web Services Term and Termination
6.1 Homeflow shall provide the applicable Web Services for the duration of the Web Services Term and either party may terminate the Web Services in accordance with clause 14 of the General Terms and Conditions and any provisions of the Order Form (if applicable).
6.2 If the Web Services Term terminates or expires the Client shall forthwith cease using the Agency Application and Homeflow shall terminate the operation of the Website and any other Service.
SECTION B: Advertising Services Terms and Conditions
7.1 In consideration of the Client paying the Fees, Homeflow shall provide to the Client advertising services which shall include, without limitation, uploading Client Content (including images) for display on Homeflow Portals and Lead generation from Homeflow Portals, as may be specified on the Order Form (together the “Advertising Services“).
7.2 Homeflow shall provide the applicable Advertising Services for the duration of the Advertising Term and either party may terminate the Advertising Services in accordance with clause 15 of the General Terms and Conditions and any provisions of the Order Form (if applicable).
7.3 Homeflow may in its sole discretion terminate the Advertising Services upon giving the Client no less than 30 days’ written notice.
7.4 Systems and technological failures may impede or prevent access to all or any part of the Client Content made available as part of the Advertising Services, and Homeflow makes no warranty or representation that the Client Content shall be available at all times when used in respect of the Advertising Services, nor that the Website or Homeflow Portals shall be available at all times.
7.5 Homeflow owns all Intellectual Property Rights in the technology used to operate the Homeflow Portals and to provide the Advertising Services, including Intellectual Property Rights that are created in the course of carrying out this Agreement.
Pay Per Click Services
8.1 In consideration of the Client paying the Fees, Homeflow shall provide to the Client PPC (Pay Per Click) services which shall include, without limitation, setting up and optimising PPC Accounts (“Accounts”) on advertising platforms including Google AdWords, Bing, Yahoo, Facebook, Twitter and LinkedIn (together the “PPC Services“).
8.2 Homeflow may outsource the delivery of PPC Services to a specialist PPC consultancy (“PPC Consultancy”).
8.3 PPC Services will be as detailed on the Order Form. Payments made to Homeflow for PPC Services are exclusive of Media Spend. Media spend is payable directly to the advertising platform by the Client and the Client is solely responsible for the payment of media spend.
8.4 The applicable PPC Services shall be supplied for the duration of the PPC Services Term and may be terminated in accordance with clause 15 of the General Terms and Conditions and any provisions of the Order Form (if applicable).
8.5 Homeflow may in its sole discretion terminate the PPC Services upon giving the Client no less than 30 days’ written notice.
8.6 Homeflow does not guarantee any particular rate of return or performance, and shall not be liable in any way for any economic losses incurred as a result of the provision of PPC Services (including, without limitation, loss of revenues, profits, contracts, business, anticipated savings, goodwill or reputation).
8.7 Homeflow cannot provide any guarantee that the policies or functionality of advertising platforms will not change in such a way that will have a detrimental effect on the effectiveness of the PPC Services. Homeflow shall use reasonable endeavours to counteract any detrimental effects resulting from any such changes.
8.8 Homeflow accepts no responsibility for any detrimental effect on the effectiveness of the PPC Services which results from any activity of the Client or any third party including, but not limited to, alterations to the website of the Client.
8.9 Homeflow shall not be liable for any cost arising from fraudulent use of any PPC Accounts. The Client shall be liable for any costs whether from or within the Customer’s premises, via any internet protocol address used by the Customer or via external means.
8.10 The Intellectual Property that arises from the PPC Services, including but not limited to details of the content, set-up, management or performance of the Services, are deemed to vest with Homeflow (or the PPC Consultancy if applicable), unless specifically and explicitly granted to a third party at Homeflow’s (or the PPC Consultancy’s) sole discretion. For example, on termination of PPC Services, Accounts will revert back to the account layout that existed prior to the commencement of PPC Services, and the intellectual property therein may not be used to populate a new Account.
8.11 Failure to comply with 8.10 will result in payments to Homeflow for every month that the intellectual property remains live within the relevant Account(s). Payments to Homeflow will be at the monthly invoice amount accepted by the Client during the PPC Services term.
8.12 It is agreed that neither Homeflow, the PPC Consultancy nor the Client can change login details for Accounts throughout the duration of the PPC Services Term unless agreed in writing by both parties.
8.13 The Client is not permitted to grant access to an Account to other providers of PPC Services.
8.14 Reports relating to Accounts may not be published, reproduced or shared without the written permission of Homeflow (or the PPC Consultancy if applicable).
SECTION C: General Terms and Conditions
9.1 No Agreement shall subsist unless an Order Form completed and agreed by a Client has been received by Homeflow.
10.1 Homeflow may: (i) amend the Agreement; (ii) add or remove any element of functionality to or from the Agency Application; (iii) withdraw the Agency Application; and/or (iv) add or remove any element of functionality to or from any of the Services, at its discretion at any time. In the event that Homeflow does so it will post notice of the effective date of any material changes on the Homeflow Website. If such changes are to the material detriment of the Client, such as an increase in Fees for Services in excess of a 5% increase, then the Client may within five business days of the effective date of such change terminate the Web Services and/or Advertising Services (as applicable) with immediate effect by giving Homeflow notice in writing.
10.2 The Client’s continued use of the Services (as applicable) after expiry of five business days of the effective date of any changes referred to in clause 10.1 shall constitute the Client’s acceptance of such changes.
Restrictions and Warranty
11.1 The Client is prohibited from seeking to use the Services in respect of commercial properties and the Client agrees it shall only use the Services in relation to residential properties that are situated in the United Kingdom, or as otherwise may be explicitly set out in the Order Form.
11.2 The Client shall abide by any applicable industry code of practice or guidelines and will abide by all applicable laws and regulations when using the Services including, but not limited to, the Property Misdescriptions Act 1991.
11.3 The Client warrants that it:
11.3.1 has the authority to market the properties included in the Client Content;
11.3.2 has full and valid authority to enter into this Agreement;
11.3.3 has read, will regularly read and will abide by all notices posted on the Homeflow Website from time to time that are relevant to the provision of the Services; and
11.3.4 will not introduce any computer viruses into the Website or Homeflow’s systems.
Exclusion of Liability
12.1 Nothing in this clause 12 shall limit either party’s liability for death or personal injury resulting from its negligence or for fraud.
12.2 The aggregate liability of Homeflow in respect of any loss or damage suffered by the Client and arising out of or in connection with the Agreement shall not exceed the Fees paid by the Client to Homeflow under the Agreement in the preceding three (3) months prior to the date of such loss or damage.
12.3 Homeflow shall not be liable in any way for: (i) any loss of commissions; or (ii) any loss of sales; or (iii) any loss of Client Content; or (iv) any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings); or (v) any loss of goodwill or reputation; or (vi) any indirect or consequential losses, suffered or incurred by the Client arising out of or in connection with the Agreement.
12.4 Except as expressly provided for in the Agreement all conditions, warranties and representations implied by statute, common law or otherwise are excluded to the extent permitted by law.
12.5 Client acknowledges and agrees that the limitations contained in this clause are reasonable in all the circumstances and that it has taken independent legal advice.
13.1 Client Content belongs to the Client. The Client grants to Homeflow a non-exclusive, perpetual, royalty-free, irrevocable and transferable licence to use the Client Content and any materials sent to, typed into or otherwise introduced to Homeflow’s systems by the Client (together with any data derived from the Client Content) as may be necessary for Homeflow to provide the Services (including entering into agreements with third parties in relation to the publishing or access of Client Content through media not belonging to, or under the control of Homeflow) and for any other purpose at Homeflow’s discretion from time to time.
13.2 The Client warrants, represents and undertakes that: (i) it owns and/or is licensed to use (and to grant the licence under clause 13.1 in respect of) the Intellectual Property Rights in the Client Content and the use of the Client Content by Homeflow to perform its obligations under the Agreement in respect of the Services will not infringe the Intellectual Property Rights of any third party; (ii) the Client Content is not defamatory, offensive or otherwise inappropriate; (iii) it is responsible for the integrity of the Client Content which is in all respects accurate, complete and true to the best of the Client’s knowledge and belief, and the Client shall promptly amend or correct any Client Content on being made aware of any inaccuracies or errors therein; and (iv) within three (3) business days of a property marked as for sale or rent becoming sold or let, it shall update the sales or lettings status for all such properties in the Client Content howsoever provided to Homeflow, or remove such properties from the Client Content provided to Homeflow so that the status can be accurately displayed.
13.3 The Client shall indemnify and hold harmless Homeflow and its employees, agents and subcontractors against all loss or damage suffered as a result of either party’s use of the Client Content in accordance with the Agreement or for any breach of clause 13.2.
14.1 Each of the parties shall comply with its respective obligations under the Data Protection Act 1988 and any applicable codes of practice. In respect of any personal data comprised in the Client Content, Homeflow shall be a data processor and the Client the data controller of such data and to such extent: (i) Homeflow shall only process such personal data in accordance with the reasonable instructions of the Client; and (ii) the Client shall be responsible for compliance with the Data Protection Act 1998 and ensuring, inter alia, that any relevant consents have been obtained from Users for the purposes of enabling each party to discharge its obligations pursuant to this Agreement. “personal data”, “data processor” and “data controller” shall each have the meanings set out in the Data Protection Act 1998.
15.1 Either party may bring the Agreement to an end (without prejudice to its other rights and remedies) by written notice to the other party if the other: (i) commits a material breach of its material obligations under the Agreement and in the case of a remediable breach, fails to remedy it within thirty (30) days of the date of receipt of notice from the other; or (ii) becomes insolvent or unable to pay its debts (as defined in Section 123 of the Insolvency Act 1986), proposes a voluntary arrangement or has a receiver, administrator or manager appointed over the whole or any part of its business or assets.
15.2 If the Client breaches any of the Web Services Terms and Conditions, Advertising Services Terms and Conditions or General Terms and Conditions, or Homeflow has notice of illegal or inappropriate content, or alleged illegal or inappropriate content, on the Website or being uploaded to Homeflow for the purposes of Homeflow fulfilling its obligations with regard to any of the Services, or Homeflow becomes aware of facts or circumstances from which, in Homeflow’s opinion, illegal content is apparent Homeflow shall be entitled to remove or disable access to the offending content and/or, suspend access to the Agency Application and/or suspend the Web Services, Advertising Services or any other Services without notice to the Client and without incurring liability to the Client.
15.3 On termination of the Agreement for whatever reason, all Fees and any other monies payable by the Client to Homeflow shall immediately become payable.
16.1 If the Client fails to pay any Fees by the due date, Homeflow shall be entitled but not obliged to charge the Client interest on the overdue amount, payable by the Client immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8 per cent per annum above the base rate for the time being of Barclays Bank.
16.2 If the Client fails to pay any Fees by the due date, Homeflow shall be entitled with immediate effect to withhold, remove or disable any Services for which payment has not been made on time, until such time as any and all outstanding Fees, inclusive of interest as described in 16.1, have been paid by the Client to Homeflow.
16.3 The Client shall not without the prior written consent of Homeflow assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with the Agreement or any rights under the Agreement, or sub-contract any or all of its obligations under it or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.
16.4 Each party undertakes that it will not at any time use or disclose to any person, except to its professional representatives or as may be required by law or any legal or regulatory authority, the terms and conditions of the Agreement or any confidential information concerning the business or affairs of the other party which may have or may in the future come to its knowledge. Neither party shall use any such confidential information except for the performance of the Agreement or make any announcement relating to the Agreement or its subject matter without the prior written approval of the other party.
16.5 For the avoidance of doubt, notices given by the Client under the Agreement shall not be validly served if sent by email.
16.6 Neither party shall be liable to the other party for any delay in or failure to perform any or all of its obligations under the Agreement if the delay or failure is due to circumstances beyond its reasonable control
16.7 Except insofar as the Agreement expressly provides that a third party may in his own right enforce a term of the Agreement, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999.
16.8 Clauses 7.2, 8, 15.3 and 16.4 together with those other clauses the survival of which is necessary for the interpretation or enforcement of the Agreement, shall continue to have effect after the end of the Web Services Term and/or Advertising Term (as applicable).
16.9 The Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or arrangement between the parties relating to the subject matter of the Agreement.
16.10 If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Agreement which shall remain in full force and effect.
16.11 The Agreement shall be governed by and construed in accordance with English law and each party irrevocably submits to the exclusive jurisdiction of the English courts.
Last updated: 16 December 2016