Terms & Conditions

In these Terms, we refer to Landmark Information Group Limited t/a SmartVal (a company registered in England and Wales with company number 02892803 whose registered office is 7 Abbey Court, Eagle Way, Exeter, EX2 7HY) as "We", "Us" and "Our" and we refer to the contracting party who accesses the Website and places an Order with Us for Services as "You", "Your" and "Yourself". These Terms set out the basis on which We provide You with an automated valuation Services which You can make available to Your customers via Your website.

1 DEFINITIONS

In these Terms, the following terms have the following meanings:

"Agreement" means the Agreement between You and Us for Services in accordance with these Terms.

"Automated Valuation Model" means Our automated valuation model and user interface which calculates property valuations using a statistical model and property-related data.

"Data Protection Requirements" means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time, including the General Data Protection Regulation (2016/679) when it comes into force and where applicable the guidance and codes of practice issued by the Information Commissioner, and the equivalent of any of the foregoing in any relevant jurisdiction.

"Effective Date" has the meaning set out in clause 2a.

"End User" means a visit to Your website who uses Our Automated Valuation Model.

"End User Agreement" means the agreement between You and an End User for their use of the Automated Valuation Model as amended by Us from time to time.

"Fees" means the charges levied by Us for Services provided to You as set out in the Order.

"Intellectual Property Rights" means copyright, patent, design right (registered or unregistered), rights in computer software, service or trade mark (registered or unregistered), database right or other data right, moral right or know how or any other intellectual property right.

"Material" means the branding material, logos, guidelines, data and other information You provide to Us for incorporation into the user interface for the Services.

"Minimum Term" means such period as is otherwise set out in the Order or, if none is stated in the Order, the period of 1 month from the Effective Date.

"Order" means the request for Services from Us by You.

"Property" means the property in relation to which the Automated Valuation Model is used.

"Renewal Period" has the meaning set out in clause 8a.

"Results" means the information generated by the Automated Valuation Model in relation to a given Property.

"Services" means the provision of a managed service by Us to You which enables You to make the Automated Valuation Model available to End Users via a user interface webpage incorporating Your branding and hosted by Us.

"Terms" means these terms and conditions.

2 BASIS OF CONTRACT

a. The Order constitutes an offer by You to purchase the Services in accordance with these Terms. The Order shall be deemed to be accepted when:

i. We issue written (including email) acceptance of the Order;
ii. the Order is countersigned by Us; or
iii. where the Order is not expressly accepted by Us, it will be deemed to have been accepted by Us when We provide the Services to You,
at which point and on which date the Agreement shall come into existence ("Effective Date").

b. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them relating to the subject matter. You acknowledge that You have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Us which is not set out in the Agreement.

c. You shall take all reasonable steps to check that the details that You provide in relation to Your Order are complete, accurate and correct.

d. You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Us which is not set out in the Agreement. Nothing in this clause 2d shall limit or exclude any liability for fraud.

e. These Terms, together with the Order, shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which You may purport to apply even if such other provisions are submitted in a later document or purport to exclude or override these Terms and neither the course of conduct between parties nor trade practice shall act to modify these Terms.

3 SERVICES

a. Subject to clause 10d to 10k (inclusive), We shall use all reasonable skill, care and diligence in the performance of the Services.

b. You agree that the Services are provided to You pursuant to this Agreement and the licensed use of the Services excludes use by any of Your subsidiaries, holding companies or subsidiaries of such holding companies (in each case as applicable). You agree, and shall procure, that any such company or entity shall enter into a separate agreement with Us.

c. You shall not hold Yourself out or describe Yourself as Our agent or as having had any of Your activities endorsed by Us.

d. You shall ensure that all End Users agree and enter into an End User Agreement. The End User Agreement is the agreement between You and the End User which governs their use of the Automated Valuation Model. Changes may only be made to the standard End User Agreement with Our prior, written consent in Our absolute discretion. You acknowledge and agree that it is Your responsibility to review the provisions in the End User Agreement and to take legal advice on the validity and enforceability of the End User Agreement.

e. You agree that You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, attempt to copy, modify, duplicate, create derivative works, from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Services or Result in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or Result.

f. All other uses of the Services other than as permitted by this Agreement are prohibited.

g. You agree to notify Us promptly should You suspect any infringement of Our or Our suppliers' and/or licensors' Intellectual Property Rights.

h. You agree that You will not use the Services or Our website in any way that may lead to the encouragement, procurement or carrying out of any criminal or unlawful activity or do anything that may cause damage to Our website or Our servers, systems or equipment or those of third parties, nor access any users' data or penetrate or circumvent any website security measures or attempt to do any such acts.

i. You acknowledge and agree that You must not use the Services or permit a third party (whether directly or indirectly) to use the Services to develop a Services which is similar to the Services that We are providing to You.

4 INTELLECTUAL PROPERTY AND CONFIDENTIALITY

a. You acknowledge and agree that, save for Your Materials, all Intellectual Property Rights in or relating to Our Services, the Automated Valuation Model and the Results are and shall continue to be owned by Us or Our licensors and nothing in the Agreement shall transfer, assign or grant any rights to You or Your End Users (save for the licence as set out above).

b. The names, images and logos identifying Us, companies in the Landmark group, Our partners or third parties and our/their products and/or Services contained in the Services are proprietary marks and may not be reproduced or otherwise used without express permission.

c. Subject to You paying the Fees and Your compliance with the Terms, We grant You a non-exclusive, non-transferable right to use the Services and to make the Automated Valuation Model available to End Users during the term of this Agreement.

d. You grant Us a worldwide, irrevocable, non-exclusive, perpetual, transferable, sub-licensable licence to use, modify and adapt the Materials in order to provide You with the Services.

e. You shall indemnify Us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Us in connection with any claim made against Us for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Our use of the Materials in the provision of Services or otherwise in relation to this Agreement.

5 WARRANTIES

a. Each party to this Agreement warrants, represents and undertakes that:

i. it has full capacity and authority to enter into and to perform the Agreement;
ii. it has discharged its obligations under the Agreement with all due skill, care and diligence;
iii. it shall perform its obligations under the Agreement in compliance with all laws and regulations; and
iv. it has, and shall continue to have, all approvals, consents, licences, permissions, concessions, statutory certificates and statutory agreements required to perform its obligations under the Agreement

6 CONFIDENTIALITY

a. You acknowledge and agree that You will not at any time use or disclose to any person, except to Your professional representatives or as may be required by law or any legal or regulatory authority, the any confidential information concerning the Services, the Automated Valuation Model or Our business or affairs which have or may during the term of the Agreement come to Your knowledge.

7 DATA PROTECTION

a. You agree to comply with all Data Protection Requirements. References in this clause to "data processor", "data controller" and "personal data" shall have the meanings set out in the Data Protection Requirements.

b. You acknowledge and agree that for the purposes of the Agreement, You are acting as a data controller and We are processing personal data as a data processor on Your behalf and in any such case:

i. We shall only process personal data in accordance with this Agreement and any lawful instructions reasonably given by You from time to time;
ii. We shall take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
iii. You shall ensure You are entitled to transfer the personal data to Us so that We can lawfully use the personal data to perform the Services on Your behalf; and
iv. You acknowledge that personal data may be transferred or stored outside the European Economic Area.

c. We may operate a marketing consent mechanism on the user interface for the Automated Valuation Model on Your behalf. In such an event, it is Your responsibility to ensure that the consent mechanism and any associated data collection statements comply with the Data Protection Requirements and that any marketing to End Users conducted by You or on Your behalf is conducted in accordance with such consents and the Data Protection Requirements.

d. You shall indemnify, defend and hold Us harmless against all claims, demands, costs (including legal costs), expenses and liabilities of whatsoever nature arising from any claim of Your alleged or actual failure to comply with any of Your obligations under this clause 7.

8 TERM AND TERMINATION

a. This Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with clauses 8b or 8c, shall remain in force for the Minimum Term and shall continue thereafter for successive periods of 30 days (each a "Renewal Period") unless a party gives at least 30 days' prior written notice to the other party to terminate this Agreement, such notice to expire at the end of the then-current Minimum Term or Renewal period.

b. At any time, either party may terminate the Agreement with immediate effect by giving the other party written notice:

i. if the other party is in material breach of the Terms and, if such breach is capable of remedy, that party fails to remedy the breach within 30 days of written notice specifying the breach and requiring it to be remedied; or
ii. if the other party has a receiver or administrative receiver or administrator appointed over any part of its undertaking or assets or passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect or if it become subject to an administration order or enter into a voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business or if they are presented with a bankruptcy petition.

c. Without prejudice to Our rights and remedies, We may terminate this Agreement with immediate effect on written notice to You where You make any unauthorised use of the Services.

d. In the event of the termination or expiry of the Agreement with respect to the Services ordered by You:

i. immediately cease to use the affected Services;
ii. You shall at Our option return or destroy all Our confidential information and proprietary materials in any media which is in Your possession or control and provide, at Our request, a sworn statement by a duly authorised person that You no longer hold such information and materials;
iii. without prejudice to obligations and rights which have accrued to either party prior to termination or expiry, the parties shall have no further obligations or rights under the Agreement save that the "Definitions", clauses 3e to i (inclusive), 4e, 6, 7, 8d, 9d, 10, 12, 13 and 14 together with those other clauses the survival of which is necessary for the interpretation or enforcement of the Agreement or which by their nature can be reasonably interpreted as surviving the expiry or termination of the Agreement, shall continue to have effect after such expiry or termination.

9 PAYMENTS

a. You agree that You will pay the Fees at the rates set out in Our invoice within 30 days of the date of each invoice without deduction, counterclaim or set off.

b. VAT shall be due in addition to any Fees. You shall pay any other applicable indirect taxes related to Your use of the Services.

c. You acknowledge and agree that We shall be entitled (but not obliged), with effect from the start of each Renewal Period, to adjust the Fees by giving You not less than 60 days' prior written notice before such revised fees are applied provided that such increase shall not exceed the greater of (i) 3%; or (ii) a percentage equal to the percentage increase during the previous 12 months in the Retail Price Index provided by the Office for National Statistics or by any government department upon which duties in connection with the index have devolved) or any index which replaces it.

d. If You fail to pay by the due date any amount due and payable by You under the Agreement, We shall be entitled, but not obliged to, charge You interest on the overdue amount, payable by You immediately on demand, accruing on a daily basis from the due date up to the date of actual payment, after as well as before judgment, at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 from time to time and fixed sum compensation under the Late Payment of Commercial Debts Regulations 2002.

10 LIABILITY

a. Nothing in these Terms excludes or limits either party's liability for death or personal injury caused by that party's negligence or wilful default or for fraud, and the remainder of this clause 10 is subject to this provision.

b. Save as set out in clause 10a, We shall not be liable to You or to any End User in contract, tort (including negligence) or for breach of statutory duty or in any other way for:

i. any indirect or consequential losses (which includes any loss that could not have been reasonably expected by You and Us at the time of entering into these Terms);
ii. loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
iii. loss of goodwill or reputation.

c. Save as set out in clauses 10a and 10b, Our total liability to You and/or any End User in contract or tort (including negligence) or for breach of statutory duty shall in all circumstances be limited to:

a sum equal to the total Fees payable by You during the 12-month period immediately before the date on which the cause of action first arose.

d. You acknowledge and agree that the Automated Valuation Model uses data from third party sources and the Results are derived from such third party data. Therefore, We do not warrant the accuracy or completeness of the Services, Automated Valuation Model or the Results. We do not claim that the sources that We use in providing the Services represent an exhaustive or comprehensive list of all sources that might be consulted. The Services are for End Users' general interest and information purposes only and must not be relied upon by an End User as a substitute for independent professional advice (such as from a surveyor or developer). We shall not be liable for any inaccurate statement or opinion in Our Services or Results which resulted from a reasonable interpretation of information.

e. You acknowledge and agree that We do not warrant that the Services will be uninterrupted or error free or provide any particular facilities or functions; free from defects; free from software viruses; free of error from computer malfunction, inaccurate processing; free from corruption of data whilst geo-coding, processing by computer or electronic means or in the course of transmission; or similar, although We will use reasonable endeavours to correct any such issues within a reasonable period of them becoming known. We will not be liable to You or to any other person in the event that all or any part of the Services is discontinued, modified or changed in any way. Time shall not be of the essence in providing the Services.

f. You acknowledge and agree that no physical inspection of the Property reported on is carried out as part of any Services offered by Us and We do not warrant that all land uses or features whether past or current will be identified in the Services. The Services do not include any information relating to the actual state or condition of any Property nor should they be used or taken to indicate or exclude actual fitness or unfitness of a Property for any particular purpose.

g. You acknowledge and agree that We will not be held liable in any way if a Services is used otherwise than as provided for in these Terms and/or in the Services.

h. You acknowledge and agree that the Services have not been prepared to meet Your, the End Users' or anyone else's individual requirements and it is Your responsibility to ensure that the Services ordered are suitable for Your (and the End Users') intended purpose.

i. Without limiting Our liability under these Terms, while We endeavour to ensure that the information in the provision of Our Services and Results is correct, We make no promise nor do We give any warranty or guarantee regarding the accuracy and completeness of the material in Our Services and Results. We may make changes to the Services at any time without notice.

j. The Services are provided "as is", without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, We provide You with the Services on the basis that all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which but for this legal notice might have effect in relation to the Services are excluded.

k. We shall not be held liable for any damage or loss that You incur arising from errors or omissions in information provided by an End User or You or for technical problems encountered in the provision of Our Services. We do not accept any liability for damage to Your computer or for any loss of data that results from Your use of the Services.

l. Without prejudice to Your rights and remedies under this Agreement, You acknowledge and agree that You are responsible and liable for Your provision of any services to and relationship with an End User and We do not accept liability for Your provision of services to and relationship with an End User.

11 ASSIGNMENT AND SUB-CONTRACTING

a. We shall be entitled to assign, transfer or otherwise deal in any other manner with any or all of Our rights and obligations under the Agreement.

b. You shall not assign, transfer, sub-licence or otherwise deal with any of Your rights and obligations under the Agreement without Our prior written consent.

c. We may authorise or allow Our contractors and other third parties to provide to Us and/or to You Services necessary or related to the Services and to perform Our obligations and exercise Our rights under these Terms, which may include collecting payment on Our behalf.

12 EVENTS BEYOND OUR CONTROL

a. Neither party to the Agreement shall be liable for any delay or failure to perform their obligations caused by any circumstance beyond their control, and such party shall be entitled to a reasonable extension of time for the performance of such obligation.

13 COMPLAINTS AND DISPUTE RESOLUTION

a. Any complaints in relation to the Services should, in the first instance, be in writing addressed to the Customer Services Support Manager at Our registered office. We will (or Our agents will) respond to any such complaints in writing as soon as practicably possible.

b. If any dispute arises out of or in connection with the e Agreement or their validity ("Dispute") the parties undertake, subject to clause 13c, that prior to commencement of court proceedings they will negotiate in good faith to settle such Dispute by mediation in accordance with the Centre for Effective Dispute Resolution ('CEDR') Model Mediation Procedure as in force from time to time, which Procedure is deemed to be incorporated by reference into this clause. To initiate the mediation a party shall give notice in writing to the other party to the dispute requesting mediation. A copy of the referral should be sent to the CEDR. Unless otherwise agreed between the parties within 14 days of notice of the Dispute, the mediator will be nominated by the CEDR. The mediation will start not later than 28 days after the date of service of such notice. If the Dispute has not been resolved to the mutual satisfaction of the parties within 60 days (or such other period as they shall agree) after the date of service of such notice then either party may refer the Dispute to the courts in accordance with clause 14e.

c. Clause 13b shall be without prejudice to the rights of termination stated in clause 8b and in addition shall not prevent Us from:

i. applying for injunctive relief in the case of: (1) breach or threatened breach of confidentiality; or (2) infringement or threatened infringement of Our or Our suppliers' Intellectual Property Rights; or
ii. pursuing a debt claim for the payment of the Fees.

14 GENERAL

a. If any provision of the Agreement is found by either a court or other competent authority to be void, invalid, illegal or unenforceable, that provision shall be deemed to be deleted from the Agreement and never to have formed part of the Agreement and the remaining provisions shall continue in full force and effect.

b. No delay, failure or omission on Our part in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under the Agreement or by law shall be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy, nor shall any single or partial exercise of any such right, power, privilege, claim or remedy preclude the exercise of that or any other right, power, privilege, claim or remedy.

c. Our privacy policy as displayed on Our website and updated from time to time governs the use that We shall make of any information provided by You.

d. A person who is not a party to any contract made pursuant to these Terms shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any terms of the Agreement and We shall not be liable to any such third party in respect of the Services.

e. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and, subject to clause 13b, each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.