The Able Agent Terms & Conditions Agreement of Use

The Able Agent Limited Contract

Between:

(1). The Able Agent Limited, whose registered office is at Arbon House, 6 Tournament Court, Edgehill Drive, Warwick, CV34 6LG

Signed on behalf of The Able Agent Limited

Name: Charlotte Jeffrey-Campbell
Position: Learning and Development Manager

and

(2) (“the User”)
(the User may be:
an individual;
an estate agency and/or lettings branch;
an estate agency and/or lettings multiple branch organisation; or
an estate agency and/or lettings related industry organisation or supplier)
It is agreed as follows:

(1) The Service Provider hosts and provides access to the Application described herein in its capacity as the Service Provider of the Application (“the Service”).
(2) The User agrees to access the Application described herein as hosted by the Service Provider under a non-exclusive licence, from a remote location, in return for the payment of a monthly or annual fee (which may include an introductory free period) and is subject to the terms and conditions of this contract (“the Contract”).

1 Fees and Payment:

The fees due for the Service are agreed with each User directly.
The User shall pay to the Service Provider all fees due by the agreed due date.

In the event that the User does not pay all fees due by the agreed due date, the Service Provider shall suspend the User’s use of the Service by suspending the User’s access to the Application.
The User has the option to cancel the contract within the first 14 days or afterwards with one month notice by written confirmation of cancellation to the Service Provider.

No refunds will be given by the Service Provider to the User once paid.
The Service Provider reserves the right to vary the fees from time to time as it may deem appropriate. The User shall receive 30 days’ written notice of any such variation. Such variations shall take effect upon expiry of such notice.
The Service

The Service Provider shall, with effect from the Commencement Date, provide the Service to the User on a non-exclusive basis indefinitely or until cancellation in accordance with the terms and conditions of this Contract.

The Service Provider shall provide access to the Application and shall use its best and reasonable endeavours to ensure that such access is available, without interruption, 24 hours a day, 7 days a week, 365 days a year. This undertaking shall be subject to the exceptions contained in this Contract.

The Application

The Application to which the User shall have access to is The Able Agent Limited web-based application including all materials, recordings and content.

The User shall use the Application under a non-exclusive, non-transferrable licence, as set out in this Contract. This licence permits an agreed number of access licences for each User to access the Application at any given time and such access is only permitted via the web-based Application.

The Application provided by the Service Provider is the property of the Service Provider unless otherwise stated and shall be covered by the terms of the licence included in this Contract. Where parts of the Application are the property of a third party, the relevant parts remain the property of those third parties.
Where parts of the Application are the property of a third party, the Service Provider warrants that they have all requisite authority to sub-licence such parts of the Application to the User for the purposes of this Contract and for use under its terms.

Access and support

The Service Provider shall provide access support to any User that requires it.

The Service Provider shall provide email support services during their normal business hours of 9am to 5pm Monday to Friday, such business hours to exclude public holidays. The support provided by the Service Provider shall relate only to the Application. Any problems which are related to the User’s computer systems must be resolved by the User’s own IT support.

When seeking support, the User shall use its best and reasonable endeavours to provide the fullest information possible to aid the Service Provider in diagnosing any faults in the Application.
The Service Provider shall aim to resolve all support problems as soon as possible.

Whenever possible, the Service Provider shall provide a workaround solution to the User to enable the User’s continued use of the Application or to enable use that is as close to normal as is possible under the prevailing circumstances.

Security and data protection
The Service Provider shall ensure that at all times the Application is secure and does not pose a security threat to the Users systems.
The Service Provider has the right to use third party servers to host the Application and will make every effort to select third parties who meet the required security standards.

The Service Provider shall ensure that any data held in relation to the User is secure and meets its obligations under GDPR.

Maintenance

The Service Provider shall be responsible for all maintenance and upgrades to the Application which may from time to time be required.
The User shall be responsible for the suitability, maintenance and upgrades to their own computer systems which may be required to be able to access the Application (e.g. up to date versions of internet browsers, namely Edge, Chrome, Firefox, Safari) and are accessing the Application from a fast and stable internet connection (at least 30mb broadband connection).

Whenever possible, the Service Provider shall use its best and reasonable endeavours to undertake maintenance work outside of the Users Business Hours.

Unless maintenance is corrective in nature, the Service Provider shall provide at least 7 Business Days’ notice of any maintenance which may affect the User’s use of the Application. The Service Provider shall use it’s best and reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible.

Whenever possible, the Service Provider shall provide a workaround solution to the User to enable the User’s continued use of the Application or to enable use that is as close to normal as is possible under the prevailing circumstances.

Applications Terms of Use

The User access to the Application shall be controlled by means of access licences being granted by the Service Provider to registered individuals of each User.

Should the User require an increased number of access licences to access the Application, such an increase shall be permitted at the exclusive discretion of the Service Provider and subject to an agreed increase in fees.

Use by individuals who do not have an access licence from the Service Provider is not permitted under this Contract (in the absence of express written consent from the Service Provider, such consent not to be unreasonably withheld). The Service Provider may require such details as the reason that access to the Application is required by the unregistered individual.

The User shall use the Application exclusively for the purposes of carrying on its business and not to give access to, sell to or share with other parties. The User must not present any of the content of the Application as their own in any way to others.

The Service Provider may monitor the User’s use of the Application from time to time to ensure compliance with the terms and conditions of this Contract. In the event that the User’s use of the Application is deemed to breach this contract, the Service Provider reserves the right to increase fees or suspend access to the Application.

The User is exclusively responsible for its use of the Application, including the conduct of individuals with access licences and must ensure that all use is in accordance with this Contract. The User shall notify the Service Provider immediately of any breaches of this Contract by any individual with an access licence or unregistered individuals.

Access to the Application is only permitted through the web-based Application. Under no circumstances may the User or any individuals with access licences download, store, reproduce or redistribute the Application or any other part of its content, without first obtaining the express written permission of the Service Provider.

The User’s use of the Application may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of this Contract. It shall be the User’s exclusive responsibility to ensure that its use by the individuals with access licences for the Application is in compliance with any such laws.

The User’s use of the Application shall be subject to the following limitations, any of which may be waived by the Service Provider giving their express written consent:

The User may not use or redistribute the Application for the purpose of conducting the business of an Application Service Provider;

The User may not redistribute or reproduce the Application through any network; and
The User may not allow any unauthorised third party to access the Application.
Neither the User, nor anyone on its behalf may, in the absence of written consent from the Service Provider:
Make changes of any kind to the Application; or
Attempt to correct any fault or perceived fault in the Application.

Intellectual Property

All Intellectual Property Rights subsisting in the Application, including any supporting software and documentation is the property of the Service Provider. For the purposes of this clause, the Application along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented.

Where expressly indicated, the Intellectual Property Rights subsisting in the Application including any supporting software and documentation may be the property of third parties.

The User shall not either during the term or after the expiry of this Contract permit or cause to occur any infringement of any Intellectual Property Rights covered by this Contract. Use of the Service by the User and the individuals with access licences shall only be within the terms of this Contract.

The User shall not, in the absence of the Service Provider’s written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any part of the Application or any other material associated with this Contract where such activity goes beyond the scope of actions permitted by the terms and conditions of this Contract.

Where the User either suspects or is aware of any breach of Intellectual Property Rights covered by this clause it shall be under a duty to inform the Service Provider of such breach immediately.

User Data

Subject to sub-clause 9.42, all Intellectual Property Rights subsisting in User Data are and shall remain the property of the User.

Certain User Data may belong to third parties. In such cases, the User warrants that all such User Data is used with the consent of relevant third parties.

Confidentiality

During the Term of this Contract and after the termination or expiration of this Contract for any reason, the Service Provider shall use its best and reasonable endeavours to ensure that all User Data is kept secure and confidential. The Service Provider shall not, in the absence of express written consent from the User, disclose User Data to any third party unless such disclosure is required by law in which case the User shall be notified in writing of the disclosure.

During the Term of this Contract and after termination or expiration of this Contract, the following obligations shall apply to the party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”).

Subject to sub-Clause 10.46, the Receiving Party:

may not use any Confidential Information for any purpose other than the performance of their obligations under this Contract;
may not disclose any Confidential Information to any third party except with the prior written consent of the Disclosing Party; and
shall make every effort to prevent the unauthorised use or disclosure of the Confidential Information.
The obligations of confidence referred to in this clause (excluding sub-Clause 10.43) shall not apply to any Confidential Information that:
is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
is required to be disclosed by any applicable law or regulation; or
is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.

Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which they may be entitled.

The obligations of the parties under all provisions of this clause shall survive the expiry or the termination of this Contract irrespective of the reason for such expiry or termination.

Liability

The Application provided by the Service Provider includes content covering compliance and legal training. All endeavours are made to ensure that the content is accurate, current and updated but this does not remove the obligations of the User to meet its own legal and compliance requirements.

The Service Provider shall not be liable to the User for any direct, indirect or consequential loss the User may suffer even if such loss is reasonably foreseeable or if the Service Provider has been advised of the possibility of the User incurring it.

The Service Provider’s entire liability to the User in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Contract shall be limited to the fees paid by the User under this Contract.

Indemnity

The User will fully indemnify the Service Provider against all costs, expenses, liabilities, losses, damages and judgments that the Service Provider may incur or be subject to as a result of any of the following:

The User’s misuse of the Application or any other element of the Service;
The User’s breach of this Contract; or
The User’s negligence or other act of default.

The Service Provider shall be under no obligation to indemnify the User against any costs, expenses, liabilities, losses, damages and judgments that the User may incur or be subject to arising out of any matter covered by this Contract.

Force Majeure

Neither the Service Provider nor the User shall be liable for breaching this Contract where that breach results from Force Majeure.

Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

Termination

The Service Provider reserves the right to terminate this Contract or to suspend the Service in the following circumstances:

If the User fails to pay Fees due under Clause 1 of this Contract;
If the User is in breach of the terms of this Contract;
If the User becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
If the User is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
If the User has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.

The User reserves the right to terminate this Contract in the following circumstances:

If the Service Provider is in breach of the terms of this Contract;
If the Service Provider becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
If the Service Provider is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
If the Service Provider has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.

Notices

All notices under this Agreement shall be in writing.

Notices shall be deemed to have been duly given:

when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by e-mail and a successful return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case notices should be addressed to the most recent address or e-mail address notified to the other party.

Relationship of Parties

Nothing in this Contract shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the User.

Assignment

Neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Contract without the prior written consent of the other, such consent not to be unreasonably withheld.

Severance

The parties agree that, in the event that one or more of the provisions of this Contract is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of this Contract. The remainder of this Contract shall be valid and enforceable.

Entire Contract

This Contract embodies and sets forth the entire contract and understanding between the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Contract. Neither party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Contract, save for any representation made fraudulently.

Unless otherwise expressly provided elsewhere in this Contract, this Contract may be varied only by a document signed by both of the parties.

No Waiver

The parties agree that no failure by either party to enforce the performance of any provision in this Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Contract. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

Non-Exclusivity

The relationship between the parties under this Contract is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.

Law and Jurisdiction

This Agreement shall be governed by the laws of England and Wales.

Any dispute between the parties relating to this Contract shall fall within the jurisdiction of the courts of England and Wales.

Definitions and Interpretation

In this Contract, unless the context otherwise requires, the following expressions have the following meanings:

“Application”
means The Able Agent Limited web based training application provided by the Service Provider which shall be available to the User as set out in this Contract;

“Business Day”
means any day other than Saturday or Sunday that is not a bank or public holiday;

“Business Hour”
means any time between 9am and 5pm on a Business Day, during which the Service Provider is open for business;

“Commencement Date”
means the start date of the Service and the date of this Contract as;

“Confidential Information”
means all business, technical, financial or other information created or exchanged between the parties throughout the Term of this Contract;

“Fees”
means the sums payable by the User in return for access to the Application provided by the Service Provider in accordance with this Contract;

“Intellectual Property Rights”
means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;

“User’s Computer Systems”
means the User’s computer hardware, firmware, software and communications infrastructure through and on which the Application is to be used;

“User’s Data”
means any data belonging to the User or to third parties and used by the User under licence which is created using the Application.