Terms of Service

1. Definitions and Interpretation 

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

“Agreement” the contract between Housemark and the Customer made in accordance with clause 2.  

“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Platform Services, as further described in clause 4.2. 

“Benchmarking” means services relating to the periodic benchmarking of, and other insights relating to Customer Data as more particularly described in Schedule 2 to be provided to the Customer should such services be selected in the Order Form; 

“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such, or would be regarded as confidential by a reasonable business person including, for the avoidance of doubt, all output of the of the Services under this Agreement; 

“Consultancy Services” means consultancy services to be provided to the Customer where such services are selected and particularised in the Order Form; 

“Consultancy Services Fees” means the fees for the Consultancy Services as set out in the Order Form.  

“Customer” the person or firm who purchases the Services from Housemark and whose details are set out on the Order Form.  

“Customer Data” means any information provided by the Customer to Housemark (including through upload to any Platform) for the provision of the Services; 

“Deliverables” means any reports, data, documents, or information made available to the Customer as a result of the provision of Services; 

“Fees” means fees set out in any Order Form for the provision of Services by Housemark; 

“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; 

“Housemark” means Housemark Ltd registered in England and Wales with company number 03822761.  

“Initial Subscription Term” means the initial term of the subscription to the Platform(s) as set out in the Order Form.  

“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; 

“Order” means the Customer’s order for Platform Services and/or Consultancy Services as set out in the Order Form.  

“Order Acceptance Date” means the date on which we accept the Order Form in accordance with clause 2.2. 

“Order Form” means a document in the Housemark template setting out the Services to be provided to the Customer by Housemark and the applicable fees (and which may, in the case of Consultancy Services, also incorporate a statement of work); 

“Photobook” means the downloadable App and corresponding online service provided by Housemark (as updated from time to time) known as Photobook which may form part of the Services; 

“Platform(s)” means the online software applications and services (including Photobook and Benchmarking) provided by Housemark as part of the Platform Services, as updated from time to time; 

“Platform Fees” means the subscription fees payable by the Customer to Housemark for the Platform Services as set out in the Order Form.  

“Platform Service Description” means the description of the Photobook and Benchmarking Platforms set out in Schedule 1 and Schedule 2 respectively.  

“Platform Services” the subscription services provided by Housemark to the Customer under this agreement via the Platforms as more particularly described in the Platform Service Description.   

“Renewal Period” the period described in clause 3.1.1. 

“Services” means the Platform Services and/or the Consultancy Services to be provided by Housemark to the Customer as specified in an Order Form. 

“Subscription Commencement Date” the date on which the Platform Services start as set out in the Order Form.  

“Subscription Fees” the fees for the subscription to the Platform(s) as set out in the Order Form.  

“Subscription Term” the Initial Subscription Term together with any subsequent Renewal Periods).   

“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; 

“Terms” the terms set out in the clauses, Schedules, and other provisions of this document as updated from time to time in accordance with clause 19.  

“User Subscriptions” means the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Platform Services in accordance with these Terms. 

“Validation” means, in relation to Benchmarking data only: 

1. 1. automated checks by the Platform on data submitted via the Platform; 
   2. manual review of inputs in line with public data sources, other data provided and reasonable expectations; 
   3. manual review of outputs in line with similar peers, previous years and expectations; and 
   4. liaison between Housemark and the Customer to identify any omissions or errors identified as a result of (i), (ii) and (iii). 

The term “Validate” shall be construed accordingly. 

“Working Day” means any day Monday to Friday in the United Kingdom inclusive but excluding public holidays and the period between Christmas Day and New Year’s Day. 

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.  

1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time. 

1.4 A reference to writing or written includes email but not fax. 

1.5 Any obligation on a party not to do something includes an obligation not to allow that thing to be done. 

1.6 A reference to this Agreement or to any other agreement or document referred to in the Agreement is a reference to that Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of the Agreement) from time to time. 

1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 

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

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

2. Basis of contract  

2.1 The Order constitutes an offer by the Customer to purchase Platform Services, Consultancy Services, or Platform Services and Consultancy Services from Housemark in accordance with these Terms.  

2.2 The Order shall only be deemed to be accepted when Housemark issues written acceptance of the Order Form at which point and on which date the Agreement shall come into existence (“Order Acceptance Date”).   

2.3 If the Order Form contains an Order for: 

2.3.1 Platform Services but not Consultancy Services all clauses, other than clause 5, shall apply to the Agreement;  

2.3.2 Consultancy Services but not Platform Services all clauses, other than clause 4 shall apply to the Agreement; or 

2.3.3 Platform Services and Consultancy Services, all clauses shall apply to the Agreement. 

If there is an conflict or inconsistency between the provisions of the Terms and the provisions of the Order Form, the provisions of the Order Form shall prevail

3. Commencement and duration of the Agreement  

3.1 This Agreement shall come into force on the Order Acceptance Date and, unless terminated earlier in accordance with clause 10, shall continue:  

3.1.1 in the event that the Agreement includes Platform Services, for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive periods equal to the Initial Subscription Term (each a Renewal Period), unless either party give the other party notice to terminate the Agreement, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement shall terminate on the expiry of the applicable Initial Subscription Term or Renewal Period; and  

3.1.2 In the event that the Agreement includes Consultancy Services and does not include Platform Services, until Housemark have provided the Consultancy Services when it shall terminate automatically without notice.

4. Platform Services

4.1 Subject to the Customer paying the Subscription Fees in accordance with clause 9.1, the restrictions set out in this clause 4, and these Terms, Housemark hereby grants the Customer a non-exclusive non-transferable right and licence without the right to grant sublicences:

4.1.1 to permit the Authorised Users to access and use the Platforms during the Subscription Term; and

4.1.2 to use and copy for its own internal purposes, data made available through the Platforms.

4.2 In relation to the Authorised Users, the Customer undertakes that:

4.2.1 the maximum number of Authorised Users that it authorises to access and use the Platform shall not exceed the number of User Subscriptions it has purchased from time to time;

4.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorise User, in which case the prior Authorised User shall no longer have any right to access or use the Platform; and

4.2.3 it will not permit or allow user credentials to be shared between individuals.

4.3 If any unauthorised use is made of any Platform and such use is attributable to the act or omission of the Customer then, without prejudice to Housemark’s other rights and remedies, the Customer 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.

4.4 Housemark shall not be liable for any loss or damage arising in connection with passwords or information regarding the Customer being disclosed to third parties.

4.5 Housemark shall use reasonable endeavours to maintain availability of the Platforms (excluding site maintenance downtime) of 99.9% 8am to 6pm on Working Days; 99% 6pm to 8am on Working Days (all UK time).

4.6 In relation to:

4.6.1 the Benchmarking Platform, the Customer shall provide Housemark with details of individuals who require access to the Benchmarking Platforms and the level of access each user should be given. The Customer shall be responsible for ensuring that it has all necessary permissions to share such details with Housemark. The Customer shall communicate to Housemark in a timely fashion in writing the details of individuals whose access to any Platform should be withdrawn or access permissions varied; or

4.6.2 the Photobook Platform, the Customer shall use the Photobook system administration portal to add or remove users and to determine the relevant user permissions and access levels. Housemark shall not be liable to the Customer for any delay by the Customer in updating the access or permissions of staff who should no longer have access to the Platform.

4.7 In the event that the Customer is unable to use any Platform due to a fault in the Platform and notifies Housemark of the fault then Housemark will use reasonable endeavours to restore the Customer’s access within a reasonable timescale.

4.8 Housemark will provide help facilities for the Platforms between the hours of 9.00 a.m. and 5.00 p.m. (UK time) for handling Customer’s technical support queries. Housemark will use its reasonable endeavours to ensure the helpline facilities are available between the hours stated above on a Working Day but excluding office closures notified in advance by Housemark to the Customer.

4.9 To the extent that it is applicable based on the status of the Customer, Housemark shall use reasonable endeavours to comply with Schedule 4 (Transparency and FOIA).

4.10 The Customer agrees that Housemark may use the Customer’s name and logo(s) in promotional material relating to Housemark’s services.

4.11 Housemark may update the Platforms at any time. Housemark reserves the right to alter the content and functionality of any Platform either temporarily or permanently. Housemark shall use reasonable endeavours not to, during the term of an Agreement, remove any material functionality of the Platform.

4.12 The Customer is responsible for determining whether the Platform is suitable for the Customer’s intended use or application, and any use that the Customer may make of the Platform or the information in any Deliverables is at the Customer’s own risk.
4.13 Save in respect of Customer Data uploaded to Photobook, the Customer shall at all times keep adequate back-up copies of:

4.13.1 all data and information it submits to Housemark in any form;

4.13.2 all data used or held by the Customer relating to the Platforms; and

4.13.3 and Housemark shall in no circumstances be liable to the Customer for the loss of or damage to such data.

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

4.15 Housemark does not:

4.15.1 take responsibility any delays, delivery failures, security or privacy breaches, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including public Internet or mobile telephone networks, and the Customer acknowledges that the Services and access to the Platforms may be subject to limitations, delays and other problems inherent in the use of such communications facilities;

4.15.2 warrant that the Customer’s use of the Services and Platforms will be uninterrupted or error- free;

4.15.3 warrant that the Platform will be free from vulnerabilities; or

4.15.4 warrant that the Platform(s) will be fit for any particular Customer requirement, (including, without limitation, satisfying any particular compliance, regulatory or legal requirement), it is up to the Customer to satisfy itself of this in respect of any particular use case.

5. Consultancy Services

5.1 Housemark shall perform the Consultancy Services with reasonable skill and care.

5.2 Housemark shall use reasonable endeavours to meet any deadlines or milestones specified in any Order Form for delivery of any Services, but any such dates shall be estimates only and time for performance by Housemark shall not be of the essence of this Agreement.

5.3 The Customer shall appoint appropriately trained personnel and procure that these personnel provide all necessary knowledge and assistance to Housemark to enable Housemark to extract necessary Customer Data or other insights about Customer processes.

5.4 The Customer is responsible for maintaining and operating the development and production hardware and software environment required by Housemark to provide the Consultancy Services for the duration of the Consultancy Services (including the support of any third party or Customer-owned applications that may impact or be impacted by the Consultancy Services). The Customer shall provide (or procure the provision of) access for Housemark staff to such environments as may be required for the duration of the Consultancy Services as well as guidance and access to all relevant documentation reasonably required.

5.5 Where any element of the Consultancy Services involves Housemark staff working at the Customer’s premises, the Customer shall provide them with suitable office space, office supplies, furniture, telephone and other facilities equivalent to those provided to its own internal staff and make them aware in writing of any relevant health and safety at work considerations.

5.6 The Customer is entirely responsible for the security and integrity of its IT systems and data (including any cloud- based services it uses) at all times whilst Housemark provides Consultancy Services. Should access for Housemark staff to any of the Customer’s IT systems be required to perform the Services the Customer shall provide Housemark with relevant credentials and clear guidance and access control requirements in advance so that to do so in line with the Customer’s relevant policies and processes.

5.7 The Customer warrants that any project pre-requisites set out in the Order Form (or statement of work) will be met prior to the planned commencement date of the Consultancy Services. Housemark shall be under no obligation to deliver the Consultancy Services and shall have no liability in relation to missing any proposed milestones for providing the Consultancy Services due to the Customer not having met the pre-requisites set out in the Order Form.

5.8 Changes to the Consultancy Services may be requested at any time by either party in writing. If either party requests a change, the following procedure will apply:

5.8.1 If the requesting party is the Customer, the Customer shall provide a written change request to Housemark describing the requested change(s) and the justification for the change(s).

5.8.2 Housemark shall for each proposed change consider the request and either provide to the Customer:

1. 1. 1. a written analysis or the proposed change including details of any time limits that may apply with respect to its approval and implementation, any impact on project milestones, any consequential changes to be made to the Agreement to accommodate, and any additional charges payable under the Agreement (together an ‘Estimate’); or
      2.  a notice rejecting the proposed change.

5.8.3 If Housemark determines that an Estimate would require considerable effort on Housemark’s part, Housemark may require the Customer to agree to pay Housemark’s charges and fees in respect of the provision of the Estimate on a time and materials basis before providing it. The then current standard rates for the provision of an Estimate will be communicated to the Customer in writing.

5.8.4 If, after receipt of the Estimate but before expiry of any time limit given by Housemark, the Customer notifies Housemark that it wishes to proceed with the change, then the amendments to the Agreement as detailed in the Estimate shall be confirmed in writing and signed by an authorised signatory of each party and the Agreement shall be amended accordingly.

5.8.5 Should an Estimate not be accepted by the Customer or Housemark declines to provide one the Agreement shall remain unaltered.

5.8.6 If the requesting party is Housemark, Housemark shall provide the Customer with an Estimate which the Customer may accept or reject. If it rejects the Estimate the Agreement shall remain unaltered.

5.9 Where, as a result of acts or omissions of the Customer, Housemark has been delayed or otherwise unable to provide some or all of the Consultancy Services or resources to deliver any or all of the Services within 6 months of the scheduled commencement date, in addition to any other remedies it may have Housemark reserves the right (in its sole discretion) to:

5.9.1 charge the Customer for any days spent or milestones reached (whether complete or otherwise) by such date and not already invoiced; and

5.9.2 charge all days or services committed to but still outstanding at the end of such 6 month period or requote for the outstanding work.

6. Customer obligations

6.1 The Customer shall:

6.1.1 provide Housemark with:

1. 1. 1. all necessary co-operation in relation to the Agreement; and
      2. all necessary access to such information as may be required by Housemark;
         in order to provide the Services, including but not limited to Customer Data, security access information and configuration services.

6.1.2 without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

6.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Housemark may adjust any agreed timetable or delivery schedule as reasonably necessary and Housemark shall not be liable for any failure to deliver any or all of the Services to the extent caused by Customer’s delay;

6.1.4 provide, in a timely manner, any information Housemark may reasonably require, and ensure that such information is accurate in all material respects;

6.1.5 ensure that the Authorised Users use the Platform in accordance with the Terms and shall be responsible for any Authorised User’s breach of this Agreement; and

6.1.6 obtain and maintain all necessary licences, consents, and permissions necessary for Housemark, its contractors and agents to perform their obligations under this Agreement.

6.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

6.3 If Housemark’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Housemark shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.

6.4 The Customer shall not:

6.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

6.4.2 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means;

6.4.3 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;

6.4.4 access all or any part of the Platform in order to build a product or service which competes with the Platform Services;

6.4.5 use the Platform Services to provide services to third parties;

6.4.6 subject to clause 16, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform Services available to any third party except the Authorised Users unless otherwise agreed in writing by Housemark;

6.4.7 attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 6; or

6.4.8 introduce or permit the introduction of, any virus into the Platform or Housemark’s network and information systems.

6.5 The Customer must not access, store, distribute or transmit any viruses, or any Customer Data or other material during the course of its use of the Platforms that:

6.5.1 is unlawful, defamatory, obscene, depicts sexually explicit images, harmful, threatening, harassing or racially or ethnically offensive;

6.5.2 facilitates illegal activity or promotes unlawful violence;

6.5.3 is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or

6.5.4 is otherwise illegal or causes damage or injury to any person or property including the infringement of any third party’s Intellectual Property rights, and Housemark reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the Terms until such time as it is satisfied (acting reasonably) that the breach causing it to disable the Customer’s access has been rectified.

6.6 Housemark acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property rights in the Customer Data. The Customer hereby grants to Housemark the following licences:

6.6.1 an irrevocable, perpetual royalty-free, non-exclusive, worldwide, limited licence to reproduce, modify, translate, make available, distribute and use the Customer Data for any purpose in relation to this Agreement, development and enhancement of its products and services, statistical analysis to identify and publish industry statistics and market trends, benchmarking; and

6.6.2 an irrevocable, perpetual, royalty-free, non-exclusive, limited licence to make available to other users of Housemark’s Services and Platforms such of the Customer Data relating to Benchmarking reasonably required for benchmarking purposes to evaluate performance, business improvement and comparative analytics, subject always to clause 6.7.

6.7 Other users of Housemark’s Services and Platforms shall not be enabled to use the Customer Data to undertake any activities which may identify an individual data subject from the Customer Data, and Housemark shall ensure that any such potential identification is not possible.

6.8 The Customer acknowledges and agrees that the receipt of the Services may require the use of third party platforms and services notified by Housemark. For example, hosting of online events may require the use of a third party video streaming service and ticketing provider. Housemark shall endeavour to ensure that any costs for such third party providers are included in the Fees stated in the applicable Order Form. The Customer shall accept any standard terms and conditions required for the use of such platforms and services.

7. Benchmarking Data

7.1 Depending on which modules are selected on an Order Form, the Customer shall submit benchmarking data to Housemark for incorporation into the Platform. The specific required data fields and deadlines for submission of benchmarking data will be set out in the Order Form or in subsequent written confirmation from Housemark to the Customer.

7.2 The Customer shall comply with any limitations and format requirements communicated to it in relation to the provision of any Customer Data.

7.3 Where any compilations of data, statistics or good practice examples produced from data (other than data submitted by the Customer) obtained from the Benchmarking Platforms are made for internal or external reports by or on behalf of the Customer, the Customer 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”.

7.4 Housemark will from time to time Validate the benchmarking data submitted by the Customer.

7.5 The Customer undertakes to respond to queries raised by Housemark as part of the Validation process in a timely manner and to the best of their knowledge.

7.6 Housemark reserves the right to exclude or remove Customer Data which does not meet Housemark’s Validation standards.

7.7 Housemark will use reasonable endeavours to provide the Customer with all reports, analysis and presentations as described in the Order Form.

7.8 The Customer warrants to Housemark that all Customer Data is and shall be to the best of its knowledge in all material respects correct, accurate and complete, and that the Customer has all necessary permissions and rights to share the Customer Data with Housemark for use by Housemark as contemplated by this Agreement. The Customer shall inform Housemark in writing as soon as reasonably practicable if any data or other information the Customer has submitted to Housemark is found to be incorrect, inaccurate or incomplete. The Customer 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 Customer of the warranty given by it or obligations imposed on it under this clause 7.8 or any other clause of these Terms.

7.9 The Customer acknowledges that data in any Deliverables and available on the Platforms may be provided by third parties. Whilst Housemark makes reasonable efforts to undertake verify the data received from third parties, it does not warrant that such information and data are correct, accurate or complete. Housemark will not be liable for any claim brought by a third party or the Customer that arises from any action or omission by Housemark to the extent that such action or omission results from data obtained from third parties, the Customer’s instructions, or any Customer Data.

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 any Platform and any other know-how and data which pre-dates this Agreement or which was developed by Housemark outside of the scope of this Agreement shall remain vested in Housemark. The Customer 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 Customer any right, title or interest in or to any such rights.

8.2 The Customer shall not at any time assert any rights in the goodwill attaching to any of Housemark’s trade marks or other intellectual property and all such rights shall vest in and ensure exclusively for the benefit of Housemark. If the Customer challenges the validity of Housemark’s rights in or to, or the validity of any of Housemark’s trade marks (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 Subject to clause 6.6, Housemark hereby assigns to the Customer all Intellectual Property rights in the Deliverables relating to the Customer Data, but excluding any know-how and Intellectual Property rights which pre-date this Agreement or which are developed by Housemark outside of the scope of this Agreement. To the extent not owned by the Customer, Housemark hereby grants to the Customer, subject to the terms of Terms, a royalty-free licence to use the Deliverables, for the duration of this Agreement, for its own internal business purposes only.

9. Payments

9.1 The Customer shall pay the Subscription Fees, unless otherwise set out in the Order Form, annually for the first year of the Subscription on the Order Acceptance Date and for each subsequent year in advance of the respective year following the Subscription Commencement Date.

9.2 The Customer shall pay the Consultancy Services Fees on receipt of an invoice which Housemark shall send to the Customer at the intervals specified in the Order Form.

9.3 Housemark may increase the applicable Subscription Fees on an annual basis every 12 months following the Order Acceptance Date. Housemark shall notify the Customer in writing at least one (1) month before the end of the applicable 12-month period of the new annual fee which will apply for the subsequent year. The Subscription Fees may be adjusted annually by the greater of 5% and the UK Government’s published annual Consumer Prices Index inflation rate plus 1% for the immediately preceding September (except in the circumstances of a free trial converting to a paid-for subscription, where such limit on the increase in Fees shall not apply).

9.4 Housemark may increase the Consultancy Services Fees at any time. The Consultancy Services payable in relation to this Agreement will remain unchanged and the increased Consultancy Services Fees will apply to any subsequent agreements entered into between the parties.

9.5 If any additional services beyond those stated in the Order Form are required, these will be subject to an additional charge based on Housemark’s then-applicable daily rates. This will be agreed in writing by way of the Customer and Housemark entering into a new agreement or as otherwise agreed in the change control methodology set out in clause 5.9.

9.6 If the Customer fails to pay any amount when due, Housemark reserves the right to, without liability to the Customer, suspend provision of any of the Services and access to any Platform until such time as payment is received in full. If any amount due remains unpaid for a period of more than 3 months from when it was due and payable Housemark may elect (in its absolute discretion) to terminate this Agreement.

9.7 Housemark reserves the right to charge interest to the Customer on any sums payable by the Customer 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.

9.8 Fees stated in any Order Form may exclude reasonable expenses and third party costs required for the provision of the Services, which shall be passed on to the Customer inclusive of Housemark’s management fee. Housemark shall endeavour to notify the Customer of any such expenses and costs in advance.

9.9 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.

9.10 If explicitly permitted in the Order Form the Customer may request a cancellation or variation of the Services upon the terms subject to any terms set out therein. Cancellation requests must be served in writing in accordance with clause 17, and any cancellation fees and non-refundable charges and expenses that Housemark may have incurred on the Customer’s behalf shall become due and payable as a debt immediately upon serving notice.

10. Termination

10.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

10.1.1 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

10.1.2 the other party commits 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).

10.2 Without affecting any other right or remedy available to it, Housemark may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer commits an act which in the reasonable opinion of Housemark damages or is likely to damage Housemark’s reputation.

11. Consequences of termination

11.1 Upon termination of this Agreement, the Customer and all Authorised Users shall immediately cease to use any Platform 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 the Agreement.

11.2 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 the Terms which are expressed to or which it is implied shall survive termination and they shall continue in full force and effect.

11.3 The Customer shall not be entitled to any refund of any fees already paid at any time.

12. Confidentiality

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

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

12.1.2 not use any Confidential Information or share any results disclosed by Housemark to the Customer in any public forum or with any third party without the written permission of Housemark;

12.2 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.

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

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

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

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

12.4 The recipient may disclose Confidential Information to its representatives and those of its Group Companies 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.

12.5 Each party shall use reasonable care to protect the confidentiality of information received from the other party but in all events each party shall use 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 its Group Companies who have an actual need to know and have a
written obligation to protect the confidentiality of such information.

13. Limitation of Liability

13.1 The limitations on liability in this clause 13 apply to every liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise.

13.2 Nothing in this Agreement shall limit or exclude Housemark or the Customer’s liability for:

13.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

13.2.2 fraud or fraudulent misrepresentation; or

13.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or

13.2.4 any liability which cannot be limited or excluded by applicable law.

13.3 Subject to clause 13.2:

13.3.1 neither party shall under any circumstances have any liability for any losses or damages which may be suffered by the other party (or any person claiming under or through the other party), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

1. 1. 1. special damage even if a party was aware of the circumstances in which such special damage could arise;
      2. loss of profits;
      3. loss of business;
      4. loss of anticipated savings;
      5. loss of business opportunity;
      6. loss of goodwill;
      7. loss or corruption of data or information; or
      8. pure economic loss; and

13.3.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from our Agreement.

13.4 Subject to clause 13.2, Housemark’s total aggregate liability to the Customer shall not exceed 100% of the Fees paid for the Services under the Agreement.

13.5 Housemark makes no representations and gives no warranties or undertakings as to the ownership, validity or subsistence of any intellectual property that may subsist in the system or in any application or use thereof.

14. Data Protection

The parties acknowledge and agree that the processing of personal data by Housemark under this Agreement shall be governed by the provisions of the Data Processing Addendum at Schedule 3.

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. If the period of delay or non-performance continues for 90 days, the party not affected may terminate this Agreement by giving not less than 14 days’ written notice to the affected party.

16. Assignment

16.1 Housemark may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.

16.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of Housemark.

17. Notices

17.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:

17.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

17.1.2 sent by email to the address specified in the Order Form;

17.1.3 such other email address as may have been notified by that party for such purposes.

17.2 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:

17.3 Any notice shall be deemed to have been received:

17.3.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

17.3.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

17.3.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.3.3, business hours means 9.00am to 5.00pm Monday to Friday on a Working Day.

18. Governing Law and Jurisdiction

18.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.

18.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

19. Variation

19.1 Housemark may vary these terms from time to time by giving the Customer at least 120 days’ notice in writing (Variation Notice). If the Customer does not accept the variation, the Customer may, within 14 days of being notified of the variation by Housemark (Review Period), terminate an Agreement on written notice to Housemark in accordance with clause 10.1.1.

19.2 Provided that the Customer has not given notice of termination during the Review Period, the Customer’s continued use of the Services after the Review Period will constitute the Customer’s acceptance of the variation and the variation will take effect on the date set out in the Variation Notice.

19.3 If the Customer gives notice of termination during the Review Period, this Agreement shall continue on these Terms without amendment until the Subscription terminates in accordance with clause 10.1.1.

20. Severability

20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

20.2 If any provision or part-provision of this Agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

21. Third Party Rights

21.1 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

22. No Waiver

22.1 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 (“Applicable Bribery Law”). No party shall place the other in breach of any Applicable Bribery Law.

23.1.1 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.

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

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

24. Entire Agreement

24.1 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. No Partnership

25.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

Schedule 1 – Photobook Platform Description

Service description:

The Photobook app and web portal are intended to provide a means for Customers to schedule property inspections and to capture information pertaining to such inspections in a structured way (including photographs), for such information to be analysed and synchronised across mobile and desktop devices, and from which information reports can be generated.

Specific implementations may vary depending on Customer requirements, and will be confirmed prior to ‘go-live’ where implementation support is requested, but core functionality and support services are set out below.

The web portal service can be accessed by the customer via recommended browser/s. The mobile app can be downloaded from the main app stores (IOS and Android).

The mobile app shall:

• Work on iOS and Android mobile operating systems where the version is current, supported and maintained by the vendor (Apple and Google respectively).
• Maintain compatibility with the most recent versions of the supported mobile operating
• Communicate with the application portal to provide and receive updates and ensure these do not negatively impact on the performance of the
• Manage connectivity to the mobile network and work offline with no reduction of service – Certain functionality may be disabled like
• Receive and display alerts for specific actions carried out on the portal or other external inputs to include but not to be restricted to alerts concerning network connectivity or

The web portal shall allow users to securely log into and operate the defined service. The web portal shall:

• Be standalone and not require any end user software installation or reconfiguration in order to
• Allow access and operation, where practical and feasible, across a variety of computer platforms running on supported versions of the following browsers (details of which can be sought from Housemark):
  • Microsoft Edge
  • Google Chrome
  • Mozilla Firefox
  • Safari

Support services for Customers include:

• Dedicated helpdesk support from Housemark as set out in clause 4.6.

 

Schedule 2 – Benchmarking Platform Description

The Benchmarking Platform are online interfaces through which the Customers may provide data to Housemark and view how their data compares to other contributors’.

These interfaces are accessed via the Housemark member website and require a valid Housemark username and password.

There are four levels of access available to Customers:

• No access to benchmarking services (the Customer may access other areas of the Housemark member website)
• Read-only access (the Customer may view all benchmarking reports but cannot edit the data)
• Performance only access (the Customer may view all benchmarking reports, and provide and edit data for all modules except the ‘cost’ module)
• Full access (the Customer may view all benchmarking reports and provide and edit data for any module) Different Customer users may have different permissions, as specified by the Customer.

Housemark shall not be liable to the Customer for any delay by the Customer in updating the details of users who should no longer have access to any Platform. Access is granted to the specified individual users only, and the Customer must ensure that user credentials are not shared between individuals.

Schedule 3 – Data Processing Addendum (DPA)

This Data Processing Addendum (DPA) governs the Processing of Personal Data by Housemark solely on behalf of the Customer.

In the event of any conflict between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data and liability relating thereto.

 

1. DEFINITIONS

a. The terms, Controller, Processor, Processing and Supervisory Authority shall have the same meaning as in the UK

b. Data Protection Laws means all applicable and binding privacy and data protection laws and regulations of the United Kingdom, including the UK GDPR, applicable to, and in effect at the time of, the Processing of Personal Data hereunder.

c. Data Subject means the identified or identifiable person to whom the Personal Data

d. ICO means the Information Commissioner’s Office or any successor organisation in the role of supervisory authority for data protection in the

e. International Data Transfer Agreement means the Standard Data Protection Clauses issued by the Commissioner under S119A(1) Data Protection Act 2018 for parties making restricted

f. Personal Data means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable a natural person, which is processed by Housemark solely on behalf of the Customer under this DPA and the Agreement.

g. Services means the services provided to the Customer by Housemark under the

h. Special Category Data means special categories of Personal Data described as such in Article 9 of the UK GDPR including information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning a person’s health, sex life or sexual orientation, or data relating to criminal convictions and offences and Personal Data relating to

i. Sub-processor means any third party that carries out specific Processing activities of Personal Data under the instruction of Housemark.

j. UK GDPR means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).

 

2. PROCESSING OF PERSONAL DATA

2.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data by Housemark on behalf of the Customer: (a) the Customer is the Controller of such Personal Data, and (b) Housemark is the Processor of such Personal Data.

2.2 Customer’s Obligations. The Customer, in using the Services, and the Customer’s instructions to Housemark, shall comply with Data Protection Laws, the Agreement and this DPA. The Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Housemark the Personal Data, and shall ensure that all appropriate notices and consents are in place to authorise the Processing activities conducted by Housemark on the Customer’s behalf in accordance with the Agreement and this DPA. Prior to entering into the Agreement the Customer must assess whether it ought to undertake a data protection impact assessment or assess its legitimate interests to undertake the processing under Article 6(1)(f) UK GDPR (in each case in its ultimate discretion with due regard to its requirements to do so under Data Protection Laws) and duly undertake any such assessments in pursuance of its obligations as Controller of the Personal Data. Where any Personal Data is Special Category Data, the Customer shall ensure that one of the criteria set out in Article 9(2) of the UK GDPR applies to that Personal Data before Processing takes place. Where the Processing does not Special Category Data, no such data will be sent to Housemark.

2.3 Support for the Customer’s Assessments. Upon the Customer’s reasonable request, Housemark shall provide the Customer, at the Customer’s cost, with reasonable cooperation and assistance needed to fulfil the Customer’s obligation under the UK GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent the Customer does not otherwise have access to the relevant information, and to the extent such information is available to Housemark. Where applicable (and to the extent required under the UK GDPR) Housemark shall provide, at the Customer’s cost, reasonable assistance to the Customer in the cooperation or prior consultation with the ICO.

2.4 Housemark’s Processing of Personal Data. Housemark shall Process Personal Data for the following purposes: (a) in accordance with the Agreement and this DPA; (b) in connection with its provision of the Services; (c) to comply with Customer’s reasonable and documented instructions, where such instructions are consistent with the terms of the Agreement and this DPA, and regard the manner in which the Processing shall be performed; and (d) as required under Data Protection Laws, and/or as required by a court of competent jurisdiction or other competent governmental authority, provided that Housemark shall inform the Customer of the legal requirement before Processing, unless such law or order prohibits disclosing such information. Housemark shall inform the Customer without undue delay if, in Housemark’s reasonable opinion, an instruction for the Processing of Personal Data given by the Customer infringes applicable Data Protection Laws, unless Housemark is prohibited from notifying the Customer under applicable Data Protection Laws. For the avoidance of doubt Housemark has no obligation to assess whether instructions by the Customer infringe any Data Protection Laws.

2.5 Details of Processing. The subject-matter of Processing of Personal Data by Housemark is the performance of the Services pursuant to the Agreement and this DPA. The details relating to the nature, purpose, types, term, current sub-processors of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Annex A (Details of Processing) to this DPA.

2.6 Ownership of Data. The Customer shall retain all right, title and interest in and to all of the Personal Data it provides to Housemark or Housemark collects on its behalf and remains exclusively responsible for the legality, reliability, integrity, accuracy and quality of the Personal Data.

3. DATA SUBJECT REQUESTS

3.1 If Housemark receives a request from a Data Subject to exercise their rights (to the extent available to them under applicable Data Protection Laws) including rights of access, right to rectification, restriction of Processing, erasure, data portability, objection to the Processing, and their right not to be subject to automated individual decision making (Data Subject Request), Housemark shall notify the Customer or refer the Data Subject to the Customer.

3.2 Taking into account the nature of the Processing, Housemark shall assist the Customer, insofar as this is possible and reasonable, to enable the Customer to respond to a Data Subject Request.

4. CONFIDENTIALITY

4.1 Housemark shall ensure that its personnel and contractors engaged in the Processing of Personal Data have committed themselves to confidentiality or are otherwise under a statutory obligation of confidentiality.

5. SUB-PROCESSORS

5.1 Appointment of Sub-processors. The Customer acknowledges and agrees that Housemark may engage third party Sub-processors in connection with the provision of the Services.

5.2 Current Sub-processors.

5.2.1 As of the date the Customer enters into this DPA the Customer hereby grants Housemark general written authorisation to engage with the Sub-processors set out in Annex A, which are currently used by Housemark to process Personal Data.

5.2.2 Housemark has entered into a written agreement with each current Sub-processor containing equivalent or materially similar data protection obligations as set out in this DPA including obligations to implement appropriate technical and organisational measures in such a manner that the Processing will meet the requirements of the Data Protection Laws.

5.3 New Sub-processors. The Customer hereby grants Housemark general written authorisation to engage new and the replacement of existing Sub-processors provided that:

5.3.1 it first enters into a written agreement with such new Sub-processor as per the requirement for current Sub-processors set out in paragraph 5.2.2; and

5.3.2 the location of Processing of the Personal Data undertaken by the Sub-processor is either in the UK or, if outside the UK, any international data transfer complies with the requirements set out in paragraph 9; and

5.3.3 the nature of the Processing is not materially different from that undertaken by the current Sub- processors.

5.4 Housemark’s responsibility for actions of Sub-processors. Where a Sub-processor fails to fulfil its data protection obligations concerning its Processing of Personal Data, Housemark shall remain responsible to the Customer for the performance of the Sub-processor’s obligations.

6. SECURITY & AUDITS

6.1 Controls for the Protection of Personal Data. Housemark shall maintain appropriate industry-standard technical and organisational measures for protection of Personal Data Processed hereunder (including measures against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data). Upon the Customer’s reasonable request, Housemark will reasonably assist the Customer in ensuring compliance with its obligations pursuant to Articles 32 to 36 of the UK GDPR taking into account the nature of the Processing and the information available to Housemark.

6.2 Audits and Inspections. Upon 14 days’ prior written request from the Customer at reasonable intervals (but no more than once every 12 months), and subject to strict confidentiality undertakings by the Customer, Housemark shall make available to the Customer (or the Customer’s independent, reputable, third-party auditor, subject to their confidentiality undertakings) information necessary to demonstrate compliance with this DPA, and allow for and contribute to audits, including inspections, conducted by them. Housemark may satisfy its obligations under this section by answering the Customer’s questionnaire-based audits and/or by providing the Customer with attestations, certifications and summaries of audit reports conducted by accredited third party auditors solely related to Housemark’s compliance with this DPA. Any information relating to audits, inspections and the results therefrom, including the documents reflecting the outcome thereof, shall only be used by the Customer to assess Housemark’s compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Housemark’s prior written approval. Upon request, the Customer shall transfer to Housemark all records or documentation that was provided by Housemark or collected and/or generated by the Customer (or each of its mandated auditors) in the context of the audit and/or the inspection.

6.3 In the event of an audit or inspection as described in paragraph 6.2, the Customer shall ensure that it (and each of its mandated auditors) will not cause (or, if it cannot avoid, minimise) any damage, injury or disruption to Housemark’s operations, premises, equipment, personnel and business, as applicable, while conducting such audit or inspection.

7. DATA INCIDENT MANAGEMENT AND NOTIFICATION

7.1 Housemark maintains internal security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data Processed by Housemark on behalf of the Customer (a Data Incident). Housemark shall make reasonable efforts to identify and take those steps as Housemark deems necessary and reasonable designed to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within Housemark’s reasonable control. The obligations herein shall not apply to Data Incidents that are caused by the Customer or anyone who uses the Services on the Customer’s behalf.

7.2 The Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies Housemark (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Housemark’s prior written approval, unless, and solely to the extent that, the Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by such laws, the Customer shall provide Housemark with reasonable prior written notice to provide Housemark with the opportunity to object to such disclosure and in any case the Customer will limit the disclosure to the minimum scope required by such laws.

8. RETURN AND DELETION OF PERSONAL DATA

8.1 Housemark shall delete all the Personal Data it Processes on behalf of the Customer either following termination of the Agreement and cessation of the Services or, if specified, in accordance with the Data Processing Details set out in Annex A, unless laws applicable to Housemark require or permit otherwise or the Customer requests in writing the return of the Personal Data (in which case Housemark shall return it as soon as reasonably practicable at the Customer’s cost).

9. CROSS-BORDER DATA TRANSFERS

9.1 Transfers from the United Kingdom to countries that offer an adequate level of data protection. Personal Data may be transferred from the UK to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the ICO (Adequacy Decisions) without any further safeguard being necessary.

9.2 Transfers from the United Kingdom to other countries. If the Processing of Personal Data by Housemark includes a transfer (either directly or via onward transfer) from the UK to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognised by Data Protection Laws (as may be adopted by Housemark in its own discretion), Housemark shall enter into an International Data Transfer Agreement with such a Sub- processor governing the Processing having first undertaken a transfer risk assessment and satisfied itself that data subjects will continue to benefit from enforceable rights and effective legal remedies such that they are not prejudiced by such a transfer.

9.3 Conflict between standard terms. If and to the extent that the terms of an International Data Transfer Agreement apply to any aspect of the Processing, nothing in this DPA varies or modifies any conflicting standard terms of the International Data Transfer Agreement nor does it affect the ICO or Data Subject’s rights under the standard terms of the International Data Transfer Agreement.

10. LIABILITY

10.1 Liability for following the Customer’s instructions. Provided that Housemark complies with the Customer’s instructions in respect of Processing, Housemark shall not have any liability (subject to paragraph Schedule 1Sub Schedule 0Part 11) for any damage caused by Processing that Personal Data, or for any consequences in the event that such Processing otherwise infringes Data Protection Laws, to the extent that such damage or consequences result from Housemark’s compliance with such instructions; and/or Liability for refusing to follow the Customer’s instructions. Provided that refuses to comply with the Customer’s instructions in respect of Processing due to concerns that compliance will cause a breach of Data Protection Laws, Housemark shall not have any liability (subject to paragraph Schedule 1Sub Schedule 0Part 11) for any failure to follow such instructions.

10.2 Limitations to Liability. Nothing in this DPA excludes or limits either Party’s liability for:

10.2.1 death or personal injury caused by its negligence;

10.2.2 fraud or fraudulent misrepresentation; or

10.2.3 any other liability which cannot be excluded or limited by law.

11. MODIFICATIONS

11.1 Each Party may by serving at least thirty (30) calendar days prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in applicable Data Protection Laws to allow Processing of Personal Data to be made (or continue to be made) without breach of such Data Protection Laws. Pursuant to such notice the Parties shall use commercially reasonable efforts to accommodate such required modification, and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements under applicable Data Protection Laws as identified in the respective Party’s notice as soon as is reasonably practicable. In addition, Housemark may amend this DPA from time to time without notice, provided that such changes are not adverse in any material aspect with respect to the Customer’s rights or Housemark’s obligations and Housemark makes the Customer aware of the same.

 

Annex A – DATA PROCESSING DETAILS

Nature and purpose of Personal Data sharing	The purpose of the Personal Data sharing is to enable Housemark to provide to the Customer with the data consultancy, data collection, data analytics and/or reporting services set out in the Agreement (defined as the Services) and this DPA. Some aspects of these Services may require Housemark to process personal data in respect of which the Customer is the Controller which will depend on which Services are provided. Some such processing will be obvious on the face of it (such as in the case of attendance management at events), but may include (as applicable to each main service type): Photobook This involves: ·    Hosting ·    Cataloguing ·    Displaying ·    Aggregating ·    Database services ·    Transferring, copying, storing and deleting ancillary to the above Benchmarking This involves: ·    Data Analysis ·    Benchmarking ·    Matching ·    De-duplication ·    Anonymising and/or pseudonymising Personal Data ·    Aggregating ·    Transferring, hosting, copying, storing and deleting ancillary to the above Consulting This depends on the nature of the Consultancy Services, and will be set out in the Order Form but will likely include data analysis and reporting, and, in the case of tenant satisfaction surveys, communication with tenants and soliciting feedback on behalf of the Customer, processing such insights, aggregating and anonymising records and reporting back. General Additional processing may be carried out: (a)          acting on the Customer’s instructions where such instructions are consistent with the terms of the Agreement and this DPA; (b)          to share Personal Data with third parties in accordance with the Customer’s instructions and/or pursuant to the Customer’s use of the Services; (c)           to comply with Data Protection Laws; (d)          to undertake any tasks ancillary or incidental to any of the above.
Objectives and benefits of Personal Data sharing	The sharing of Personal Data is necessary for the Customer to benefit from the Services which may be procured for a variety of purposes depending on the nature of the Service. This may include meeting its statutory reporting requirements (such as solicitation of feedback from tenants and benchmarking its own performance), its legitimate business interests in managing the maintenance of its property portfolio and business operations efficiently and effectively, and providing training and development opportunities to its staff.
Personal Data being shared	The type of personal data and category of data subject being processed under the Agreement will vary depending on the nature of the Service and the way in which any Platform is used by the Customer, but may include the following depending on Service type: Benchmarking ·       Staff Data for use of the Platform: Operative names, identification references, usernames and passwords.· ·       Staff Data for benchmarking: generally anonymised by grouping, however in the event that identity can be inferred from small data cohort size and cross referencing other publicly accessible sources such personal data could include possibly role, remuneration and workplace performance. Photobook The types of personal data being processed on the Platform are determined by the Customer’s requirements, however may include some or all of the following: ·       Staff Data: Operative names, identification references, usernames and passwords. ·       Tenant Data: Includes names, contact details, and other relevant personal identifiers. Consultancy Services The types of personal data being processed depends on the nature of the service request, however, may include in respect of tenant satisfaction measure surveys: ·       Tenant Data: name, contact information, feedback on satisfaction and ancillary disclosed data. Events / Training Staff Data: Includes name, job title, workplace contact information for course / event attendance management, advertisement and feedback.
Special Categories of Personal Data being shared	The following Special Categories of Data (under Article 9 UK GDPR) relating to the Customer will be shared: Photobook: may include, at the Customer’s election, data relating to tenant’s health, wellbeing, ethnicity (or information which may allow for such information to be inferred).
Frequency of Personal Data transfer	Consultancy: one-off or a series of one-off transfers Benchmarking: Routine periodic sharing Photobook: routine uploading and access
How Personal Data is stored by Housemark	The data is uploaded to Microsoft Azure storage system in a location, in the EU, designated to only be used for data from the Customer.
How long will Housemark retain Personal Data	For the duration of the provision of the Services and afterwards in accordance with Housemark’s standard data retention and deletion practices.
How Housemark will destroy Personal Data	Microsoft Azure contractually commits to using secure destruction of all storage media at the end-of-life in accordance with good industry practice, so no replicated information on out-of-use devices will exist.
Sub-processors of Personal Data as at DPA commencement	Microsoft Azure (data hosting and analytics tools), Service Insights Ltd (TSM surveys)

Schedule 4 – Transparency and FOIA

Housemark acknowledges that the Customer is required to comply with the Code of Recommended Practice on Data Transparency for Local Authorities published by The Department for Communities and Local Government under section 2 of the Local Government Planning and Land Act 1980 (the “Transparency Code”).

Housemark acknowledges that the Customer may be required to publish this Agreement (with the exception of any Commercially Sensitive Information), including from time to time agreed changes to this Agreement, to the general public in accordance with the Transparency Code provided that, in doing so:

• the Customer shall consult with Housemark prior to publishing the Agreement in order to discuss in good faith and agree any redactions (such agreement not to be unreasonably withheld or delayed); and
• Housemark shall provide reasonable assistance to the Customer to enable the Customer to publish this Agreement.

FREEDOM OF INFORMATION

Housemark acknowledges that the Customer is subject to the requirements of the FOIA and the EIRs. Housemark shall:

• provide all necessary assistance and cooperation as reasonably requested by the Customer to enable the Customer to comply with its obligations under the FOIA and EIRs;
• transfer to the Customer all Requests for Information relating to this Agreement that it receives as soon as practicable and in any event within two (2) Working Days of receipt;
• provide the Customer with a copy of all Information belonging to the Customer requested in the Request for Information which is in its possession or control in the form that the Customer reasonably requires within ten (10) Working Days (or such other period as the Customer may reasonably specify) of the Customer’s request for such Information; and
• not respond directly to a Request for Information unless authorised in writing to do so by the

Housemark acknowledges that the Customer may in certain circumstances be required under the FOIA and EIRs to disclose Information without consulting or obtaining consent from Housemark. The Customer shall take all reasonable steps to notify and consult Housemark about all Requests for Information (in accordance with the Secretary of State for Constitutional Affairs’ section 45 Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the FOIA and the Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (together the “Codes“)) to the extent that it is permissible and reasonably practical for it to do so and shall take Housemark’s views into account regarding the relevant Request for Information.

Subject to this Clause, where the Customer receives a Request for Information in relation to Information that Housemark is holding on its behalf, and which the Customer does not hold itself, the Customer shall transfer to Housemark such Request for Information that it receives as soon as practicable and in any event within five (5) Working Days of receiving a Request for Information and Housemark shall:

• provide the Customer with a copy of all such Information in the form that the Customer reasonably requires as soon as reasonably practicable and in any event within ten (10) Working Days (or such other period as the Customer may specify, acting reasonably) of the Customer’s request; and

 

• provide all necessary assistance as reasonably requested by the Customer in connection with any such Information, to enable the Customer to respond to a Request for Information within the time for compliance set out in Section 10 of the FOIA or Section 5 of the EIR as
• Subject to and following notification under this Clause and up until such time as Housemark has provided the Customer with all the Information specified in this Clause, Housemark may make representations to the Customer as to whether or not or on what basis Information requested should be disclosed, and whether further Information should reasonably be provided in order to identify and locate the Information requested, and the Customer shall take such representations into account provided always that the Customer shall be responsible for determining at its absolute discretion:
  • whether the Information is exempt from disclosure under the FOIA or the EIR as applicable; and
  • whether the Information is to be disclosed in response to a Request for

Without prejudice to this Clause, if the Customer receives a Request for Information (whether via Housemark or otherwise) which relates to or requires the disclosure of Commercially Sensitive Information, the Customer shall, in good faith, consider any objections and/or representations made by Housemark regarding the disclosure of such Commercially Sensitive Information prior to responding to the Request for Information. Housemark acknowledges that the Customer is responsible for determining in its absolute discretion whether the Commercially Sensitive Information is exempt from disclosure in accordance with the provisions of the Codes, FOIA or the EIR.

If, in response to a Request for Information, the Customer concludes that it is obliged to disclose some or all of the Commercially Sensitive Information it shall (in accordance with any recommendations of the Codes) take all reasonable steps to give Housemark notice in writing of its decision prior to the disclosure of the Commercially Sensitive Information.

In the event of a request from the Customer pursuant to this clause Housemark shall as soon as practicable, and in any event within five (5) Working Days of receipt of such request, inform the Customer of Housemark’s estimated costs of complying with the request to the extent these would be recoverable if incurred by the Customer under section 12(1) of the FOIA and the Fees Regulations. Where such costs (either on their own or in conjunction with the Customer’s own such costs in respect of such Request for Information) will exceed the appropriate limit referred to in section 12(1) of the FOIA and as set out in the Fees Regulations, the Customer shall inform Housemark in writing whether or not it still requires Housemark to comply with the request and where it does require Housemark to comply with the request the ten (10) Working Days period for compliance shall be extended by such number of additional days for compliance as the Customer is entitled to under section 10 of the FOIA. In such case, the Customer shall notify Housemark of such additional days as soon as practicable after becoming aware of them and shall reimburse Housemark for such costs as Housemark incurs in complying with the request.

For the purpose of this Schedule, “Information” has the meaning given under section 84 of the FOIA and the meaning attached to “environmental information” contained in section 2 of the EIR as appropriate.