Estate Agents Clearing House Limited ("EACH")
Online Database Terms & Conditions
(Last updated on 20.9.2001)
1. Interpretation
1.1 In these Conditions:-
"Conditions"
means the standard terms and conditions set out in this document and which form the agreement between EACH and the Subscriber for the access and use of the Database and the Site by the Subscriber ("the Agreement");
"Data"
means the Information, material and content uploaded by or made available to the Subscriber on the Site;
"Database"
means the Data and all other material and information uploaded by or made available to the Subscriber by subscribing for the Data as part of EACH's database;
"Information"
means information, material and content relating to buying, selling, letting or renting properties or parts of properties, whether for business use or otherwise;
"Password"
means an individual password created by the Subscriber or the employees or agents of the Subscriber’s organisation (as may be changed by the Subscriber or any employees or agents from time to time) in accordance with clause 4.3, giving the Subscriber or its employees or agents access rights to the Site for the uploading of Information and accessing and use of the Data;
"Site"
means the EACH website;
"Subscriber"
means any user of the Site accessing the Site on behalf of its organisation (including, but not limited to the employees, representatives and agents of such organisation) and such organisation is deemed to be a subscriber for the purposes of these Conditions;
"System"
EACH's computer system;
"Writing"
includes e-mail, facsimile transmission and comparable means of communication;
2. Application of Conditions
2.1 These Conditions shall apply to all and any of the Data uploaded, accessed and/or used by the Subscriber to the exclusion of all other terms and conditions.
2.2 The Subscriber agrees that by accessing and using the Site and the Database, the Subscriber is deemed to accept these Conditions.
3. The Data
3.1 The Database is stored on and is continually amended and updated by EACH and by third party subscribers (including the Subscriber) and is made available to the Subscriber through or by use of the System. EACH will endeavour to match the Information uploaded by the Subscriber to the Data in the Database and will also store the Information on the Database for the purposes of matching it to the Data on an ongoing basis. Accordingly, EACH reserves the right to amend particular programs, information and facilities which the Data comprises from time to time at its discretion.
3.2 EACH shall use its reasonable endeavours to ensure that the Data will (subject to other terms of this Agreement) be available during normal business hours applicable in each week (except for national holidays) that the Agreement between is in force.
4. Accessing Database
4.1 The Subscriber must complete the registration procedure on the Site to gain access rights to the Site for the purposes of accessing and downloading the Data and to upload Information for display on the Site.
4.2 The Subscriber is authorised to grant further access rights to the Site and the Data solely to other employees and agents within the Subscriber’s organisation and the Subscriber shall ensure that such employees and agents shall abide by the Conditions at all times. The Subscriber shall be responsible and liable at all times in respect of such access to the Site by such employees or agents.
4.3 The Subscriber will be required to provide EACH with a Password (or Passwords) for the purposes of clause 4.1. Other employees or agents who are given access to the Site by the Subscriber in accordance with clause 4.2 will be able to set up and maintain their own Password (or Passwords). It is the sole responsibility of the Subscriber to ensure that such Passwords remain secret at all times and are not divulged to any party not authorised by the Subscriber to use the Site on its behalf or to any third party.
4.4 The Subscriber has an obligation of confidentiality for the Password to EACH and the Subscriber shall be responsible at all times for use of the Password and/or the Site by its employees, representatives or agents (whether or not authorised by the Subscriber) and therefore liable for the Charges incurred in respect of such use.
4.5 The Subscriber must take all appropriate precautions (including, but not limited to, changing the Password regularly and checking its last log-in date and time on the Database for any signs of fraudulent use) to prevent or detect fraudulent or negligent use of the Password and/or the Site or any unauthorised use of the Site and if the Subscriber suspects or becomes aware of such use, it must notify EACH immediately.
4.6 The Subscriber warrants that the Information uploaded to the Site by the Subscriber is and will be at all times true and accurate in all respects and that the Subscriber will not:-
4.6.1 upload or; publish, distribute or disseminate any incorrect, inappropriate, defamatory, indecent or unlawful information on the Site;
4.6.2 transmit or upload any information that contains viruses or any other harmful deleterious programs;
4.6.3 attempt to gain unauthorised access to other subscribers' passwords;
4.6.4 interfere with other subscribers' use of the Site;
4.6.5 use the Site to upload, store, copy, reproduce, transmit, communicate or knowingly receive any material, information, or other traffic which is abusive, indecent, defamatory, obscene, menacing or, in breach of confidence, copyright, privacy, trademarks or any other rights (including intellectual property rights of any third party).
4.7 The Subscriber grants a non-exclusive, irrevocable, royalty free licence to EACH to deal with the Information uploaded by the Subscriber to the Site in any manner deemed appropriate by EACH, including but not limited to, use of the Information on computer databases or networks which have the objective of distribution of Information.
5. Use of the Data
5.1 The Subscriber shall treat the Data as confidential and may only use the Data in the conduct of the ordinary course of the Subscriber's estate agency business. The Subscriber shall not reproduce or redistribute the Data in machine readable form other than in accordance with these Conditions.
5.2 The Subscriber shall not otherwise than with the prior written consent of EACH use, store, download, sell, redistribute or deal with the Data or such information in any manner, or for any other purpose other than in accordance with these Conditions.
5.3 The Subscriber is responsible for ensuring that its employees, clients or other recipients to whom the Subscriber supplies the Data or to whom the Subscriber authorises access to the Site, comply with the provisions of this clause 5.
5.4 The Subscriber acknowledges that use of the Data requires the Subscriber to use its own skill and judgment. The Subscriber warrants that it has such skill and judgment and undertakes at all times to exercise its own judgment in use of the Data and shall be solely liable for all opinions, recommendations, forecasts or comments made or actions taken in respect of the Data.
5.5 The Subscriber acknowledges that it is aware that use of the Data, whether by accessing, utilising, storing or otherwise dealing with the same may from time to time be subject to certain statutory or other external regulations, conditions and restrictions. The Subscriber undertakes to comply with such applicable regulations, conditions or restrictions.
5.6 Other than with the prior written consent of EACH, the Subscriber is expressly prohibited from using or redistributing the Data for the purposes of:
5.6.1 commercial information redistribution or, reproduction of the same by the press or media or, through any commercial network, cable or satellite system;
5.6.2 compiling, listing or otherwise dealing with the Data for resale or supply to third parties (whether to other estate agents or otherwise);
5.6.3 permitting or allowing the Data to infringe or otherwise prejudice the proprietary rights of EACH or any third party;
5.6.4 allowing any third party (other than clients of the Subscriber’s organisation) to access the Data unless expressly permitted by EACH.
5.7 The Subscriber shall permit EACH or its representatives or agents to have access to the Subscriber's premises and to its computer equipment, software and/or data on reasonable notice and during normal working hours for the purposes of inspection and testing of the same or, for detecting any use of the Site or Database by the Subscriber which is in breach of these Conditions or, for any other purpose referred to in these Conditions.
6.Charges
6.1 The charges payable by the Subscriber for the services provided by EACH in respect of the Database and/or the Site ("the Charges"), (including but not limited to, viewing Data, downloading Data, uploading Information and storing Information on the Site) will be displayed by EACH on the Site each time the Subscriber accesses the Database.
6.2 EACH reserves the right to vary the Charges from time to time on reasonable notice by notifying the Subscriber in Writing.
6.3 All invoices rendered by EACH shall be paid by the Subscriber within 30 days of the date of the invoice. Time of payment shall be of the essence. If the Subscriber fails to make any payment on the due date, then without prejudice to any other right or remedy available to EACH, EACH shall be entitled to:-
6.3.1 suspend or terminate the display of the Subscriber's Information on the Database or the Subscriber's access to the Database and/or use of the Site forthwith;
6.3.2 charge interest (both on or before any judgment) on the amount unpaid at the rate of 3 per cent above Barclays Bank plc base rate from time to time until payment in full is made, (a part of a month being treated as full month for the purpose of calculating interest).
6.4 The Subscriber shall make all payments due under these Conditions without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
7. Access to the Site
7.1 EACH has the right (but not the obligation) without giving any reason to:
7.1.1 modify, change, suspend or discontinue any aspect of the Database or the Site;
7.1.2 withdraw part of the Database and/or the Site temporarily or permanently;
7.1.3 suspend, discontinue, restrict or terminate access to all or part of the Database and/or the Site;
7.1.4 monitor or investigate any activity or complaint associated with the Database and/or the Site;
7.1.5 take any action that EACH deems appropriate, including but not limited to, removing the Subscriber's Information from the Database and/or Site, issuing warnings and attaching further conditions of use of the Database and/or Site without notice or liability to the Subscriber or any third party.
8. Intellectual Property Rights
8.1 The Subscriber acknowledges that the copyright and any and all of the copyright, trade marks, and other intellectual property rights subsisting in or used in connection with the Data, the Database, Site and the System including the manner in which it is presented or appears and all information, documentation and manuals relating thereto are, (unless another owner is specified therein or thereon, hereinafter referred to as the "Owner"), the property of EACH or the Owner as the case may be and the Subscriber shall not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership by EACH or the Owner (as the case may be) of any such rights.
8.2 The Subscriber shall not during or after the expiry or termination of this Agreement, without the prior written consent of EACH or the Owner (as the case may be) or, to the extent only permitted by any applicable law abuse or permit the abuse of such copyright or use or adopt any trade mark, trade name, or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name or commercial designation used by EACH or the Owner (as the case may be).
8.3 The Subscriber acknowledges that EACH has spent, and continues to spend, considerable time and resources on the selection and arrangement of the Database and the Site as an original intellectual creation. Accordingly, EACH owns copyright in the selection and arrangement of the contents of the Database and the Site and in the electronic materials necessary for their operation, without prejudice to the rights of the various third parties in the contents of the Database.
8.4 Notwithstanding the provisions of this clause 8 and irrespective of whether or not copyright in the Database is owned by EACH, the Subscriber shall not, other than as expressly permitted in these Conditions, extract or re-utilise the contents of the Database (or any part thereof) for any commercial purpose including but not limited to building commercial databases or, (otherwise than in accordance with the Subscriber's ordinary business), trading in reselling or redistributing the Data.
8.5 The Subscriber acknowledges that civil and criminal penalties may be incurred in the event of any infringement of the copyright and/or other rights in relation to the Database or its contents or the Information (including any electronic materials referred to in clause 8.3 above), and that any such infringement by the Subscriber may result in incalculable damage and/or loss to EACH, and accordingly agrees that, in addition to any other right or remedy of EACH, EACH shall be entitled to immediate injunctive relief to restrain any actual or apprehended infringement thereof. The Subscriber undertakes to indemnify EACH in full, against all loss, damage, costs and expenses (including loss of profit) which may be incurred by EACH by reason of any such infringement by the Subscriber.
9. Confidential Information
9.1 EACH regards the information and facilities available from the Data including information relating to the Database and the System or marketing thereof as confidential to EACH and the Subscriber hereby agrees that it will use such confidential information solely for the purposes of these Conditions and that it shall not disclose, whether directly or indirectly, to any third party such information other than as required to carry out the purposes of this Agreement.
9.2 In cases where disclosure is necessary, the Subscriber will, prior to any such disclosure, obtain from such third parties duly binding agreements to maintain in confidence the information to be disclosed to the same extent at least as the Subscriber is bound to EACH pursuant to these Conditions.
9.3 The provisions of this clause 9 shall not prevent the disclosure or use by the Subscriber of any information which is or hereafter, through no fault of the Subscriber, becomes public knowledge or to the extent permitted by the applicable law.
10. Liability
10.1 The Subscriber acknowledges and agrees that EACH shall have no liability as to the accuracy of the Information stored and updated on the Database but on becoming aware of the same will use all reasonable endeavours to correct or have corrected any material System, Data or Database inaccuracies and errors.
10.2 EACH shall not be liable in contract or otherwise for any direct, indirect or consequential loss or damage sustained by the Subscriber or others directly or indirectly (whether authorised or not) making use of the Data, the Database, the Information, the System or the Site including but not limited to any loss or damage resulting as a consequence of any defects, delays, interruptions, hacking, interference or failures in the System or inaccuracies or errors in the Data or Database and specifically excludes the same to the extent permitted by the law applicable to these Conditions.
10.3 EACH will not accept any liability or loss as a result of any unauthorised entry, editing, modification or amendment of the Data, Database, the Information or the Site. EACH will use its reasonable endeavours to monitor the Site to check for any such unauthorised activity and on becoming aware of such unauthorised activity on the Site, EACH will change the Site immediately.
10.4 Unless otherwise excluded pursuant to the foregoing provisions of this clause 10, EACH's liability in contract or otherwise for any direct, indirect or consequential loss or damage (excluding death or personal injury) sustained by the Subscriber or others directly or indirectly making use of or arising in any way from the Data, System, Site or Database whether arising as a result of EACH's negligence, wilful default, misrepresentation or other breach or breaches of its duties or obligations, shall be limited to the total Charges paid by the Subscriber for the particular item of Data on the Database which has caused loss.
11. Indemnity
11.1 The Subscriber undertakes fully and effectively to indemnify and keep indemnified EACH at all times against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by EACH directly or indirectly in respect of:
11.1.1 the access to, uploading to, and/or use (other than as permitted by these Conditions) by the Subscriber (or its employees, agents or representatives) of the Password, Information, Data, Database, Site and System;
11.1.2 any information, data or material produced by the Subscriber obtained in whole or in part from the Data, Database, Site or System;
11.1.3 any breach by the Subscriber of any of the provisions of these Conditions;
11.2 The Subscriber further undertakes that it shall not seek to recover and shall not be entitled to recover from EACH or to be indemnified by EACH in respect of any direct, indirect or consequential loss or damage or against any claims, proceedings, costs, demands, liabilities and expenses whatsoever sustained, incurred or paid by the Subscriber to any party in respect of any of the matters specified in these Conditions other than as required by the applicable law.
12. Termination
12.1 EACH shall have the right in its absolute discretion to terminate this Agreement at any time without giving any reason.
12.2 The Subscriber shall have the right to terminate this Agreement by 7 days notice in Writing to EACH.
12.3 If one party terminates this Agreement pursuant to clauses 12.1 or 12.2 (as appropriate), EACH shall refund (on a pro rata basis) the annual Charges paid by the Subscriber in advance less:
12.3.1 an administration charge of £15.00; and
12.3.2 any Charges (together with all accrued interest) due to EACH pursuant to clause 6.3 up to the date of termination of the Agreement and any other monies due to EACH on any other account.
12.4 Notwithstanding any other provision contained in these Conditions, and without prejudice to any other rights such party serving notice may have, either party may forthwith terminate this Agreement by notice in Writing to the other if any of the following events shall occur:
12.4.1 if the other party commits any breach of these Conditions and fails to remedy such breach (or in so far as such breach is not capable of remedy to furnish adequate compensation therefor) within (30) thirty days after receiving written notice from the party requiring it so to do;
12.4.2 if the other party becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a private limited or a public limited company or equivalent organisation in the jurisdiction of the applicable law) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or has a receiver or administrator appointed of the whole or substantially the whole of its undertakings or if any distress or execution shall be threatened or levied upon any equipment and/or software or other property of the party entitled to serve notice hereunder or if the other party is unable to pay its debts in accordance with the law relating to these Conditions.
12.5 Termination of this Agreement shall be without prejudice to any accrued rights of either party and shall not affect obligations which are expressed not to be affected by expiry or termination hereof.
13. General
13.1 The Subscriber shall not, without EACH's prior written consent, assign or transfer this Agreement or any of its rights under these Conditions to any other person, firm or company.
13.2 Failure or neglect by EACH to enforce at any time any of the provisions of these Conditions shall not be construed nor shall be deemed to be a waiver of EACH's rights under the Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice EACH's rights to take subsequent action.
13.3 If any term or provision of these Conditions shall be held void or unenforceable, all other terms and provisions of these Conditions shall nevertheless continue in full force and effect.
13.4 These Conditions form the entire agreement between EACH and the Subscriber and supersede any previous agreements between EACH and the Subscriber in relation to the subject matter of this Agreement.
This Agreement shall be governed by English law and construed in accordance with the exclusive jurisdiction of the English courts.