Subscription Agreement

HOUSEMARK SUBSCRIPTION AGREEMENT - CONDITIONS

 

IT IS AGREED as follows:

 

1 Definitions and Interpretation

1.1 In this Agreement the following words and expressions have, unless the context otherwise requires, the following meanings:

"Annual Fee" means the Initial Annual Fee adjusted annually, on a compound basis, over time by reference to the UK published annual CPI inflation rate for September of the year immediately preceding the year of renewal;                        

"Copy" means any copy of the System on any medium;

"Benchmarking Data" means Subscriber benchmarking information relating to costs, resource and performance and submitted to HouseMark;

Confidential Information” means data provided by or sourced from third party HouseMark subscribers made available through the System.

Data Protection Legislation” means as per the definition in clause 13;

Entity means a Subsidiary, Holding Company, partner or any other entity that is a member of a Group of which the Subscriber is a member;

Good Practice Examples” means examples of policies, procedures or approaches, submitted to HouseMark by third parties;

“Group” means, in relation to a company, that company, any Subsidiary or Holding Company from time to time of that company and any Subsidiary from time to time of a Holding Company of that company;

“Group Company” means, in relation to a company, any member of its Group.

“Holding Company” means a ‘holding company’ as defined by section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes of the membership requirement contained in sub-sections 1159(1)(b) and 1159(1)(c) of the Companies Act 2006, as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee) by way of security or in connection with the taking of security or (b) its nominee and expressions appropriate to companies shall be construed in relation to a body corporate that is not a company, for the purposes of section 1159 of the Companies Act 2006 and this definition, as references to the corresponding persons, officers, documents or organs (as the case may be) appropriate to bodies corporate of that description;

"Intellectual Property" means, in any item, all patents, trademarks, copyrights, know-how, methodologies, registered and unregistered designs, database rights and all other intellectual or industrial property rights of a similar nature, present and future (whether or not capable of registration) throughout the world and includes all applications for and extensions and renewals of such rights;

Launch Meeting” means an on-site presentation of the full range of products and services available as part of the HouseMark subscription. It includes full training on how to use the HouseMark System;

Personal Data” means as per the definition in the Data Protection Legislation;

“Renewal Date” means the annual anniversary of the Commencement Date;

“Subsidiary” means a ‘subsidiary’ as defined by section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes of the membership requirement contained in sub-sections 1159(1)(b) and 1159(1)(c) of the Companies Act 2006, as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee) by way of security or in connection with the taking of security or (b) its nominee and expressions appropriate to companies shall be construed in relation to a body corporate that is not a company, for the purposes of section 1159 of the Companies Act 2006 and this definition, as references to the corresponding persons, officers, documents or organs (as the case may be) appropriate to bodies corporate of that;

System” shall have the meaning given to it in recital “A” above and references to the System shall include references to any part of the System and shall include, without limitation, all data, information, benchmarking methodologies and data collection templates, databases, software, graphs, tables, compilations and programs forming part of or made available through the System;

“Tailored Feedback” means a presentation of findings from your data by a HouseMark analyst;

Validation” means, in relation to Benchmarking Data only:

Automated checks by the System on data submitted via the System;

Manual review of inputs in line with public data sources, other data provided and reasonable expectations;

Manual review of outputs in line with similar peers, previous years and   expectations;

Liaison between HouseMark and the Subscriber to identify any omissions or errors identified as a result of (i), (ii) and (iii)

"Working Day" means any day Monday to Friday inclusive but excluding public holidays.

“Works” means analyses, reports and publications in any form produced by HouseMark using the Benchmarking Data.

1.2 The use of the plural shall include the singular and vice versa.

1.3 The clause headings used are for reference purposes only and shall not be taken into account in construing this Agreement.

1.4 The Schedules form part of this Agreement and shall have full force and effect.

2 Appointment

2.1 Following receipt of this Agreement signed by the Subscriber, HouseMark shall:

2.1.1 give the Subscriber access to the System. Access is given on an individual basis, but the Subscriber may register and authorise multiple individuals;

2.1.2 grant to the Subscriber a non-exclusive and non-transferable licence to use and copy for its own internal purposes data made available through the System subject to the terms and conditions of this Agreement.

2.2 The Subscriber shall:

2.2.1 provide an initial list of individuals who require access to the System under the terms of this membership agreement. Those individuals will be employees of the Subscriber or its tenants, Board members, Council members or other service user representatives (provided always such parties are subject to the terms of this Agreement)

2.2.2 provide a named contact responsible for approving all future individual access requests, and ensuring individual compliance with the terms of this agreement

2.2.3 communicate to HouseMark in a timely fashion individuals whose access to the System should be withdrawn because their relationship with the Subscriber has terminated

2.3 HouseMark will provide helpline facilities between the hours of 9.00 a.m. and 5.00 p.m. for handling Subscriber queries. HouseMark will use its reasonable endeavours to ensure the facilities are available between the hours stated above on a Working Day but excluding office closures notified in advance by HouseMark to the Subscriber.

2.4 HouseMark may provide on the System a list of subscribers to the System. The Subscriber consents to its name being displayed by HouseMark in any such list and to HouseMark’s use of its name in promotional material.

2.5 HouseMark may develop and change the System from time to time. HouseMark reserves the right to alter the contents or presentation of the System and to remove any file or any of its contents within the System either temporarily or permanently. HouseMark may rename or re-group the services it makes available through the System and, provided such changes relate only to the classification and not the content of such services, this Agreement shall be deemed amended in accordance with such changes provided the same are notified on HouseMark’s website from time to time.

2.6 Both parties shall, on exercising their rights under this Agreement, comply with all applicable laws, regulations and codes of practice at all times.

3 Benchmarking Data Collection

3.1 The Subscriber is required to submit Benchmarking Data to HouseMark for incorporation into the System according to the submission deadlines specified by HouseMark for each module. The Subscriber may submit Data for any or all modules and for any or all periods permitted by those modules.

3.2 For any given period and module, the Subscriber may only submit one dataset per Entity covered by this Agreement, as set out in Schedule 2.

3.3 Additional Entities can be added at any time for a supplementary fee.

Licenses

3.4 HouseMark acknowledges and agrees that the Subscriber and/or its licensors own all intellectual property rights in the Benchmarking Data.

3.5 The Subscriber hereby grants the following licences:

3.5.1 During and after the Term, to HouseMark an irrevocable, royalty-free, non-exclusive, limited licence to reproduce, modify, translate, make available, distribute and use the Benchmarking Data for any purpose in relation to this Agreement and in relation to the operation and development of the System and its activities at any time.

3.6 During the Term, to other subscribers a royalty-free, non-exclusive, limited licence to use the Benchmarking Data for:

2.6.1.1 Evaluation of performance, business improvement and comparative analytics.

3.6.1.2 But not for any data matching activities which may identify a data subject; such activities being prohibited under this Agreement.

4 Validation and Services

4.1 The Annual Fee includes an initial “Launch Meeting” for new Subscribers.

4.2 On an ongoing basis HouseMark will undertake Validation of the Benchmarking Data submitted by the Subscriber. In most cases this will be done via workflows within the System, or by direct email or telephone. The Subscriber undertakes to respond to queries raised as part of the Validation in a timely manner and to the best of their knowledge.

4.3 The Annual Fee also includes an annual “Tailored Feedback” presentation, which is arranged at no extra cost to the Subscriber and can be delivered at the Subscriber’s offices or other convenient location, or remotely via appropriate visual technology. The Tailored Feedback is subject to the Subscriber having submitted valid Benchmarking Data for the year in question, and it provides valuable tailored analysis of that data by HouseMark. The content of the Tailored Feedback and the scope of the analysis is at the sole discretion of HouseMark but will take into account any special requirements of the Subscriber.

4.4 If any further meetings or additional services are required, these will be subject to an incremental charge based on our agreed daily rate. This may include, but is not limited to, on-site support for Validation or data mapping.

5 Use of the System

5.1 Where any compilations of data, statistics or Good Practice Examples produced from data (other than data submitted by the Subscriber) stored on the database forming part of the System are made for internal or external reports by or on behalf of the Subscriber, the Subscriber shall ensure that credit is given with reasonable prominence in respect of each part of the data used every time it is used (whether orally or in writing) and such credit shall include the words "SOURCE: HouseMark”.

5.2 The Subscriber shall use best endeavours to ensure that any and all uses of the System by or on behalf of the Subscriber shall be made with reasonable care and skill and in a way which is not misleading.

5.3 The Subscriber may not sell, lease, license, transfer, give or otherwise dispose of the whole or any part of the System or any Copy. The provisions of this clause 5.3 shall survive termination or expiry of this Agreement, however caused.

5.4 The Subscriber shall not make any Copy or reproduce in any way the System except that the Subscriber may make such copies (paper based or electronic) of the data and information displayed on the System as are reasonably necessary to use the System in the manner specifically and expressly permitted by this Agreement.

5.5 The Subscriber shall not use the System or permit the use of the System except in accordance with this Agreement and the Subscriber shall procure that all employees, contractors, subcontractors and agents of the Subscriber who use the System are subject to the terms of this Agreement.

6 Passwords

6.1 As soon as reasonably practicable following receipt by HouseMark of a counter-signed copy of this Agreement, HouseMark shall provide to the Subscriber a password, which shall allow the Subscriber to access the System.

6.2 Access is granted to named individuals as detailed in clause 2. Individuals must not share their log-in details and the Subscriber undertakes to ensure that all registered individuals are aware of the terms of this Agreement and keep their password confidential. HouseMark shall not be liable for any loss or damage arising in connection with passwords or information regarding the Subscriber being disclosed to third parties.

7 Unauthorised Use

If any unauthorised use is made of the System and such use is attributable to the act or omission of the Subscriber then, without prejudice to HouseMark's other rights and remedies, the Subscriber will immediately be liable to pay HouseMark an amount equal to the charges which HouseMark would have levied had HouseMark originally authorised the grant of a licence for such unauthorised use, together with interest at the rate of 4% per annum over the base rate of Barclays Bank plc from time to time, such interest accruing on a daily basis from the date of such unauthorised use to the date of payment, both before and after any judgement.

8 Intellectual Property

8.1 All intellectual property rights (including but not limited to patents, trademarks, service marks, rights in designs, copyrights, database rights (whether or not any of these is registered and including applications for registration of the foregoing) and all rights and forms of protection of a similar nature or which have equivalent or similar effect to any of the foregoing which may subsist anywhere in the world) in or to the System which vest in HouseMark shall remain vested in HouseMark. The Subscriber acknowledges that this Agreement or any other agreement (whether in writing, made verbally or implied through the intention or conduct of either party) do not operate to vest in the Subscriber any right, title or interest in or to any such rights.

8.2 The Subscriber shall not at any time assert any rights in the goodwill attaching to any of HouseMark’s trademarks or other intellectual property and all such rights shall vest in and ensure exclusively for the benefit of HouseMark. If the Subscriber challenges the validity of HouseMark’s rights in or to, or the validity of any of HouseMark’s trademarks (or any applications or registrations thereof) or any other intellectual property of HouseMark, then HouseMark shall be entitled to terminate the Agreement immediately.

8.3 The Subscriber shall not cause or allow the System to be reverse engineered unless with the prior written consent of HouseMark, which may be given or withheld in the sole and absolute discretion of HouseMark.

8.4 The Subscriber shall not be entitled to reproduce any Copy or aspect of the System nor making any alteration or amendment to the System without the prior written consent of HouseMark.

8.5 Subject to 3.4 and the licences in 3.5, the Subscriber acknowledges and agrees that HouseMark owns all intellectual property rights in any Works it creates using the Benchmarking Data. During the Term, HouseMark grants a revocable, royalty-free, non-exclusive, limited licence to the Subscriber to use the HouseMark Works in relation to services provided under this Agreement.

9 Payments

9.1 On receipt of a signed copy of this Agreement from the Subscriber, HouseMark will authorise the Subscriber to access the System for the initial Term of 12 months from the Commencement Date.

9.2 HouseMark offers a discounted fee option for subscribers who wish to commit to a 3-year subscription Term (“3-Year Option”). Under this option the Initial Annual Fee is discounted by 5%, which effectively carries that discount through into years 2 and 3.

9.3 Subject to the provisions of clause 10.2, the Agreement will be automatically renewed each year on the Renewal Date for a further 12-month Term, or, in the case of a 3-Year Option, for a further 3-year Term.

9.4 At least three (3) months before the end of either the initial Term or any subsequent Term, HouseMark will confirm to the Subscriber the new Annual Fee which will apply from the Renewal Date for the following Term. For clarity, the Annual Fee will be adjusted annually, on a compound basis, over time by reference to the UK Government’s published annual CPI inflation rate (“CPI”) for the September of the year immediately preceding the year of renewal, except that if the CPI is a negative rate then the fee will remain unchanged until the next positive CPI.

9.5 Whereby HouseMark issues notice of Annual Fees and Renewal Dates to all subscribers at least 3 months in advance of their Renewal Date, during any period after a Renewal Date where payment of the Annual Fee by the Subscriber is due but has not been received by HouseMark, HouseMark reserves the right to withdraw from the Subscriber access to the System and to any or all of the other benefits and entitlements available to it under this Agreement, until such time as payment is received in full.

9.6 HouseMark reserves the right to charge interest to the Subscriber on any sums payable by the Subscriber under this Agreement which are not paid when due at the rate of 4% per annum over the base rate of Barclays Bank plc from time to time, such interest accruing on a daily basis, both before and after any judgement.

9.7 All charges made by HouseMark under this Agreement are exclusive of value added tax (and any similar future taxes and/or duties) which shall be added at the prevailing rate at the date of the relevant invoice.

10 Termination

10.1 This Agreement may be terminated by either party giving not less than three (3) months' written notice of termination to the other party before the end of either the initial Term or any subsequent Term.

10.2 This Agreement may be terminated by:

10.2.1 either party by written notice (which shall be immediately effective) if the other party materially defaults in the performance of any of its duties or obligations under this Agreement, provided that (where such default is remediable) the party concerned has failed to rectify the default concerned for 30 days or more after receipt of a written request requiring its rectification; or

10.2.2 either party by written notice (which shall be immediately effective) if any order or other process is made for the appointment of a receiver, administrative receiver, administrator, manager, trustee, nominee or other similar official in relation to the other party or if it is wound up or dissolved or if the other party becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 or any statutory re-enactment or modification thereof) or ceases to or threatens to cease to carry on its business or substantially the whole of its business (or, in each case, if any analogous event occurs in any jurisdiction); or

10.2.3 either party committing a material breach and (in the case of a breach or breaches which is or are remediable) fails to remedy the same within 30 days of receiving a written notice specifying the nature of the breach and requiring the same to be remedied; or

10.2.4 HouseMark by written notice (which shall be immediately effective) if the Subscriber fails to comply with any provision of clause 13 (Data Protection) provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to HouseMark;

10.2.5 HouseMark if the Subscriber commits an act which in the reasonable opinion of HouseMark damages or is likely to damage HouseMark’s reputation.

10.3 Upon termination of this Agreement, the Subscriber (and all parties listed in Schedule 2) shall immediately cease to use the System and shall promptly return to HouseMark all originals and copies of all materials provided by HouseMark and any other property of HouseMark within 30 days of the termination of this Agreement.

10.4 The Subscriber (and all parties listed in Schedule 2) shall disclose to HouseMark and cease processing any personal data that may be held by the Subscriber and shall thereafter erase or destroy all copies of the personal data from the Subscriber’s systems and other records in accordance with the instructions of HouseMark.

10.5 Termination or expiry of this Agreement shall not prejudice warranties, indemnities, and exclusions of liability or limitations of liability under this Agreement or those provisions of this Agreement which are expressed to or which it is implied shall survive termination and they shall continue in full force and effect.

10.6 Save in the event of termination of this Agreement by the Subscriber under clauses 10.2.1, 10.2.2 or 10.2.3, the Subscriber shall not be entitled on termination to any refund of the Annual Fee.

10.7 In the event of termination of this Agreement by the Subscriber under clauses 10.2.1, 10.2.2 or 10.2.3, HouseMark shall refund to the Subscriber the following amount:

AF x Y

365

Where:

AF = the Annual Fee paid by the Subscriber, and

Y = the number of days from (and excluding) the date of termination of this Agreement until (and including) the next Renewal Date.

11 Confidentiality

11.1 The recipient shall keep the disclosing party's Confidential Information confidential and, except with the prior written consent of the disclosing party, shall:

11.1.1 not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this agreement;

11.1.2 not use any Confidential Information or share any results disclosed by HouseMark to the Subscriber in any public forum or with any third party without the written permission of HouseMark;

11.2 The recipient shall make every effort to prevent the use or disclosure, other than in accordance with the terms of this agreement, of Confidential Information and shall apply the same security measures and degree of care to the Confidential Information as the recipient to its own Confidential Information.

11.3 The recipient may disclose the Confidential Information to the minimum extent required by:

11.3.1 any order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body; or

11.3.2 the rules of any listing authority or stock exchange; or

11.3.3 the laws or regulations of any country with jurisdiction over its affairs.

11.4 The recipient may disclose Confidential Information to its representatives and those of its Group only to the extent strictly necessary for the performance of this Agreement. Before disclosure of Confidential Information to such a person, the recipient shall ensure that such person is fully aware of the recipient's obligations under this Agreement and shall procure that such person shall comply at all times with those obligations.

11.5 Each party shall use reasonable care to protect the confidentiality of information received from the other party but in all events no lesser standard of care to protect the confidentiality of information received from the other party than it uses to protect its own Confidential Information, and shall limit disclosure of such Confidential Information to those of its personnel and consultants and those of HouseMark’s Group Companies who have an actual need to know and have a written obligation to protect the confidentiality of such information.

12 Warranty and Liability

12.1 The Subscriber warrants to HouseMark that all Benchmarking Data, and all other information submitted and to be submitted by the Subscriber is and shall be to the best of their knowledge in all material respects correct and complete. The Subscriber shall inform HouseMark in writing as soon as reasonably practicable if any data or other information the Subscriber has submitted to HouseMark is found to be incorrect or incomplete. The Subscriber shall indemnify and keep indemnified HouseMark on demand from and against any and all claims, actions, proceedings, demands, losses, damages, costs and expenses (including without limitation legal costs and expenses) arising as a result of or in connection with the breach by the Subscriber of the warranty given by it or obligations imposed on it under this clause 12.1 or any other clause of this Agreement.

12.2 The Subscriber acknowledges that a large part of the information and data forming part of the System is provided by third parties. Whilst HouseMark makes reasonable efforts to undertake Validation of Benchmarking Data and to check the accuracy of Good Practice Examples, it does not warrant that information and data contained in the System are correct or complete. HouseMark will not be liable for any claim brought by a third party or the Subscriber that arises from any action or omission by HouseMark to the extent that such action or omission resulted directly from the Subscriber’s instructions.

12.3 Except where expressly stated to the contrary, to the maximum extent permissible in law, all conditions and warranties which are implied by statute or otherwise by general law into this Agreement or relating to the System and to the services provided by HouseMark through and in connection with the System are hereby excluded. The Subscriber shall at all times keep adequate back-up copies of:

12.3.1 all data and information it submits to HouseMark in any form; and

12.3.2 all data used or held by the Subscriber relating to the System

12.3.3 and HouseMark shall in no circumstances be liable to the Subscriber for the loss of or damage to such data.

12.4 HouseMark warrants that the System will, when delivered, comply with HouseMark’s standard specification applicable at the time of manufacture.

12.5 In the event that the Subscriber is unable to use the System due to a fault in the System and notifies HouseMark of the fault in the System then HouseMark will use reasonable endeavours to restore the Subscriber’s access to the System within 14 days from notification of the fault in the System.

12.6 HouseMark makes no representations and gives no warranties or undertakings as to the suitability or otherwise of the System for use by the Subscriber, it’s customers, representatives, affiliates or agents, nor as to the ownership, validity or subsistence of any intellectual property that may subsist in the System or in any application or use thereof.

12.7 It shall be the sole responsibility of the Subscriber to determine the suitability of the System for use by the Subscriber or in any other application, and any use that the Subscriber may make of the System is at the Subscriber’s own risk.

12.8 HouseMark is not liable to the Subscriber, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for loss of revenues, loss of contracts or loss of profits, whether direct, indirect or consequential loss, nor for any indirect or consequential loss and whether arising from negligence, breach of contract or otherwise.

12.9 The entire liability of HouseMark under or in connection with the Agreement, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, is limited to an amount equal to the total of the most recent Annual Fee payable by the Subscriber under this Agreement.

12.10 Except as set out in this Agreement, all conditions, warranties and representations, express or implied by:

12.10.1 statute;

12.10.2 common law; or

12.10.3 otherwise, in relation to:

12.10.3.1 the System; or

12.10.3.2 any intellectual property that may subsist in the System or in any use; or

12.10.3.3.application thereof

are excluded to the fullest extent permitted by law.

12.11 Nothing in this Agreement shall exclude or limit a party’s liability for fraud, for death or personal injury caused by its negligence, or for any other matter, if and to the extent that under English Law, liability for it cannot be excluded, restricted or limited in the context of this Agreement. The invalidity, illegality or unenforceability of any part of this Agreement does not affect or impair the continuation in force of the remainder of this Agreement.

13 Data Sharing Clause

13.1 The Subscriber agrees to share the Personal Data (as defined in applicable data protection and privacy legislation in force from time to time in the UK including but not limited to the General Data Protection Regulation ((EU) 2016/679) (GDPR) and the Data Protection Act 2018 (all together Data Protection Legislation)) with HouseMark. The following types of Personal Data will be shared between the parties during the term of this Agreement. The personal data to be shared between the parties under this Agreement (Shared Personal Data) must be limited to the Personal Data described in HouseMark’s Privacy Notice, as in force from time to time (which can be found at housemark.co.uk/privacy-notice) and special categories of Personal Data will not be shared between the parties:

13.2 The Subscriber shall:

13.2.1 in respect of Shared Personal Data, ensure that it provides clear and sufficient information to the data subjects, in accordance with the Data Protection Legislation, of the purposes for which it will process their personal data, the legal basis for such purposes and such other information as is required by Article 13 of the GDPR including the fact and sufficient information about such transfer and the purpose of such transfer to enable the data subject to understand the purpose and risks of such transfer;

13.2.2 ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to HouseMark;

13.2.3 give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees; and

13.2.4 ensure that at the date it is shared, Shared Personal Data are accurate.

13.3 Each party shall ensure that it processes the Shared Personal Data fairly and lawfully during the term of this Agreement and that it has legitimate grounds under the Data Protection Legislation for the processing of Shared Personal Data.

13.4 The parties each agree to provide such assistance as is reasonably required to enable the other party to comply with requests from data subjects to exercise their rights under the Data Protection Legislation within the time limits imposed by the Data Protection Legislation.

13.5 The parties shall each comply with its obligation to report a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Shared Personal Data (Personal Data Breach) to the appropriate Information Commissioners Office (ICO) and (where applicable) data subjects under Article 33 of the GDPR and shall each inform the other party of any Personal Data Breach irrespective of whether there is a requirement to notify the ICO or data subject(s).

13.6 The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Personal Data Breach in an expeditious and compliant manner.

13.7 In the event of a dispute or claim brought by a data subject or the ICO concerning the processing of Shared Personal Data against either or both parties, the parties will inform each other about any such disputes or claims and will cooperate with a view to settling them amicably in a timely fashion.

13.8 The single point of contact for each party is responsible for maintaining a record of individual requests for information, the decisions made and any information that was exchanged. Records must include copies of the request for information, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.

13.9 The Subscriber shall only provide the Shared Personal Data to HouseMark by using secure methods.

13.10 The parties undertake to have in place throughout the term of this Agreement appropriate technical and organisational security measures to:

13.10.1 Prevent:

13.10.1.1 unauthorised or unlawful processing of the Shared Personal Data; and

13.10.1.2 the accidental loss or destruction of, or damage to, the Shared Personal Data.

13 10.2 Ensure a level of security appropriate to:

13.10.2.1 the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and

13.10.2.2 the nature of the Shared Personal Data to be protected.

13.11 It is the responsibility of each party to ensure that its staff members are appropriately trained, proportionate to the staff members' role, to handle and process the Shared Personal Data, in accordance with the technical and organisational security measures, together with any other applicable national data protection laws and guidance and have entered into confidentiality agreements relating to the processing of personal data.

13.12 The Subscriber shall indemnify and hold harmless HouseMark from any cost, charge, damages, expense or loss which it causes as a result of its breach of any of the provisions of this Agreement.

14 The Subscriber’s Responsibilities

Appendix A of this Agreement sets out information about the software and hardware specifications relating to use of and access to the System. Notwithstanding the contents of Appendix A, the Subscriber is solely responsible for ensuring all interoperability and compatibility between the equipment and systems the Subscriber uses to access the System and the System itself.

15 Force Majeure

Any delay in or failure of performance of any obligation by either party shall not constitute a breach of such obligation to the extent that the delay or failure is caused by an event (including, without limitation, an event such as a strike, lock-out or other industrial action or trade dispute) outside the control of that party and which that party is not reasonably able to prevent or to circumvent. The party otherwise in default shall take all reasonable steps to circumvent and mitigate the effect of such event and to reduce any delay in performance of such obligation.

16 Assignment

16.1 HouseMark recognises that some Subscribers may become subject to changes in their company legal structure or ownership that creates new Entities or brings other Entities into the Subscriber’s Group of Entities or takes the Subscriber into a new Group of Entities.

16.2 Either of the Subscriber or HouseMark may assign the whole of this Agreement provided that it has obtained the prior written consent of the other (such consent not to be unreasonably withheld or delayed) and HouseMark and the Subscriber agree to enter into any novation agreement required to give effect to the exercise of such right, promptly on request but at the cost of the party making the request.

17 Notices

17.1 Any notice or other document to be served under this Agreement shall be in writing, and service may be effected in the following ways and shall be deemed to have occurred at the times stated:

17.1.1 by registered post - on the second Working Day after posting; and

17.1.2 by personal delivery on a Working Day- upon actual delivery or refusal to accept delivery; and

17.1.3 by personal delivery on a day other than a Working Day – on the next Working Day following actual delivery or refusal to accept delivery.

17.2 Any notice or other document to be served under this Agreement shall be addressed to the party concerned at the address on the front page of this Agreement.

18 Governing Law and Disputes

The construction, validity and performance of this Agreement shall be governed in all respects by the law of England and the courts of England shall have exclusive jurisdiction in respect of all disputes arising from or in connection with this Agreement.

19 Counterparts

If this Agreement is executed in two counterparts, then both counterparts will together form one and the same document.

20 Severability

If any clause in this Agreement is held unenforceable or void by any Court or administrative body of competent jurisdiction the offending clause shall be deemed severed and deleted and the remainder of this Agreement shall continue unaffected.

21 Third Party Rights

The parties do not intend that any term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties.

22 No Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.

23 Anti-Bribery

23.1 Each party shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption in any jurisdiction applicable to the parties and the supply of the System and/or services (“Applicable Bribery Law”). No party shall place the other in breach of any Applicable Bribery Law.

23.2 Each party shall maintain in place throughout the term of this Agreement its own adequate policies and procedures to ensure compliance by it and its personnel with the Applicable Bribery Law and will enforce those policies and procedures as necessary to avoid any breach by it or its personnel of Applicable Bribery Law. Each party shall promptly answer reasonable enquiries from the other party relating to those policies and procedures.

23.3 The Subscriber shall promptly report to HouseMark any request or demand for any undue financial or other advantage of any kind received by the Subscriber in connection with the performance of this Agreement.

23.4 The Subscriber is referred to HouseMark’s anti-bribery policy as amended from time to time.

23.5 Breach of this clause 23 shall be deemed a material breach and not capable of remedy.

24 Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties whether written or oral relating to its subject matter.

25 Indemnity

25.1 The Subscriber agrees to indemnify, hold harmless, and defend HouseMark, any Group Company of HouseMark, any Subsidiary of HouseMark and each of its or their respective officers, directors, agents, employees, representatives, successors, and assigns (collectively, “Indemnified Parties”) from:

25.1.1 and against any and all claims, demands, damages, fines, penalties, losses, causes of action, liabilities, and judgments (collectively, “Claims”) of every kind (including all expenses of litigation, court costs, and reasonable legal fees), for damage to any property or injury to or death of any person (including, but not limited to, employees of the Subscriber) resulting from, arising out of, or in any way connected with the acts or omissions to act, of the Subscriber, its officers, agents, employees, representatives, and contractors (collectively, the “Subscriber Parties”), including to the extent any such Claims are based in part upon the joint or concurrent negligence or strict liability of Indemnified Parties, or whether any such Claims are by way of tort or contract or otherwise. The Subscriber will not be required to indemnify Indemnified Parties for any Claims determined by final judgment of a court to have been caused by the wilful misconduct or gross negligence of Indemnified Parties.

25.1.2 Indemnified Parties from and against any and all Claims resulting from, arising out of, or in any way connected with, any breach of the Agreement by any of the Subscriber Parties, including breaches of any representation or warranty made hereunder, or the failure of any of the Subscriber Parties to comply with any third party requirements or with any laws including, but not limited to, fines, penalties, and monetary sanctions imposed by any governmental entity, or political subdivision or agency thereof, associated with any such failure

26 No Partnership

26.1Nothing in this Agreement and no action taken by the parties pursuant to this Agreement and any other agreement made under or between them shall constitute a partnership, association, joint venture or other co-operative entity between the parties.

Appendix A

HouseMark's digital services and applications allow access, where practical and feasible, across a variety of computer platforms running the following browsers:

Content downloadable from our digital services and applications may require you to install and use third party applications capable of opening the following:

For the proper usage of HouseMark's services and applications a high-speed Internet connection is required.

The availability of HouseMark’s digital services and applications (excluding site maintenance downtime, although we endeavour always to do this at weekends) is:

This excludes bank holidays, and the period between Christmas Day and New Year’s Day when the HouseMark office is shut.

Additional support services for Subscribers include:

 

Last updated - August 2019

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