1. Definitions and interpretation

1.1 Definitions

Agreement” means the agreement between Zoopla and the Client for the provision of Services;

Authorised User” means the Client’s employees and contractors who are authorised by the Client to use the Services;

AVM” means automated valuation model;

Business Day” means any day, excluding Saturday, Sunday and any public holiday in England;

Business Hours” means 9:00am to 5:30pm on a Business Day;

Client” means the client named on the Order Form;

Client Data” means the Request Data and the Property Data;

Client Materials” means any materials provided to Zoopla by the Client, including the Client Data;

Consumer Price Index” means the index published by the Office for National Statistics or such other index as may supersede such index;

Effective Date” means the date on which the Order Form is signed by both parties;

Fees” means the fees payable for the Services, each as set out in the Order Form;

Indemnity Claim” is defined in clause 8.6(a);

Initial Term” means the initial term set out in the Order Form;

Intellectual Property Rights” means intellectual property rights of any kind, whether registered or unregistered, and including applications, renewals, extensions, and rights to claim priority, in each case anywhere in the world;

Lender” means a lender, as indicated on the Order Form;

Order Form” means the Client’s order for Services described in the order form set out at the beginning of this Agreement;

Property Data” means the property attribute and valuation data collected by or on behalf of the Client in connection with its business;

Renewal Term” is defined in clause 3.2;

Request Data” means any data provided by the Client to obtain Results from the Services;

Results” means all results generated through the Client’s use of the Services;

Service Credit” means a credit calculated by (a) dividing the Fees payable by the Client with respect to the affected Service in the relevant month (excluding set-up and configuration Fees) by the number of days in the relevant month; and (b) multiplying the resulting amount by the number of days in that month affected by a Significant Outage;

Services” means the Services provided by Zoopla to the Client as set out in the Order Form;

Service Level” has the meaning set out in clause 5.2;

Significant Outage” means the relevant Service being unavailable during Business Hours for periods, each of at least 90 minutes, totalling six hours or longer during the Initial Term or the then-current Renewal Term (as applicable);

Start Date” means the date on which the Services commence as set out in the Order Form;

Surviving Provisions” means clauses 1, 2, 3, 9, 10, 11, and 12.

Term” means the Initial Term and any Renewal Terms;

Terms” means these terms and conditions; and

Zoopla” means Zoopla Limited, a company incorporated in England and Wales under company number 06074771 and whose registered address is at The Cooperage, 5 Copper Row, London, England, SE1 2LH

1.2 Interpretation
(a) Headings shall not affect the interpretation of this Agreement.
(b) Words in the singular include the plural and vice versa.
(c) The terms “including”, “include”, “in particular”, “for example” and other similar terms are illustrative and shall not limit the sense of the words preceding those terms.

2. Basis of contract

2.1 The Agreement comes into existence only when an Order Form has been signed by both parties. The Agreement comprises the Order Form and these Terms.

2.2 If there is a conflict between the Order Form and these Terms, the Order Form shall prevail.

3. Term and termination

3.1 The Agreement shall commence on the Effective Date and shall continue for the Initial Term.

3.2 On expiry of the Initial Term, the Agreement shall automatically renew for a period equal to the Initial Term (each a “Renewal Term”), unless terminated by either party giving the other at least 30 days’ notice to terminate the Agreement, such termination to take effect on expiry of the Initial Term or a Renewal Term (as applicable).

3.3 Either party may terminate the Agreement immediately by giving notice to the other party if:
(a) the other party materially breaches this Agreement (unless, in a case where the breach is capable of remedy, the other party remedies the breach within 30 days after receiving notice to do so), including any failure by the Client to pay the Fees when due; or
(b) in the terminating party’s reasonable opinion, the other party’s financial position is such that the other party’s capability adequately to fulfil its obligations under this Agreement is in jeopardy.

3.4 Zoopla may terminate this Agreement immediately by giving notice to the Client if there is a change of control of the Client.

3.5 Zoopla may terminate this Agreement at any time by giving the Client 30 days’ notice in writing which for the purpose of this clause shall include email.

3.6 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Client shall cease all use of the Services;
(b) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected; and
(c) the Surviving Provisions shall continue in effect.

4. Access to the Services

4.1 Zoopla hereby grants to the Client a non-exclusive, non-transferable, non-sublicensable right to permit Authorised Users to use the Services during the Term solely for the Client’s internal business operations.

4.2 Zoopla may suspend the Client’s or any Authorised User’s access to the Services if:
(a) the Client materially breaches any term of this Agreement; or
(b) Zoopla reasonably considers suspension is necessary to protect the integrity or security of Zoopla’s or any of its clients’ systems or the Services,
provided that Zoopla shall use reasonable endeavours to give the Client advanced notice of any suspension.

5. Zoopla rights and obligations

5.1 Zoopla shall provide or shall procure the provision of the Services to the Client using reasonable skill and care.

5.2 Zoopla shall ensure the Services available 95% of the time during Business Hours, except for:
(a) planned maintenance published on Zoopla’s or any subcontractor’s website in advance; or
(b) unscheduled maintenance, provided that Zoopla shall use reasonable endeavours to notify the Client in advance of any unscheduled maintenance
(the “Service Level”).

5.3 If:
(a) there is a Significant Outage; and
(b) during the three months prior to the month in which the Significant Outage occurred, Zoopla did not achieve the Service Level with respect to the relevant Service; and
(c) the Client notifies Zoopla of the Significant Outage promptly after becoming aware of the Significant Outage,
Zoopla shall apply a Service Credit against the Client’s next invoice. If no further invoices are to be issued at the time the Service Credit arises, Zoopla shall pay the amount of the Service Credit to the Client.

5.4 A Service Credit under clause 5.3 shall be the Client’s sole and exclusive remedy with respect to any failure by Zoopla to achieve the Service Level and for any Significant Outage.

5.5 Zoopla shall provide an email and telephone support service to the Client during Business Hours, which the Client may access using the following contact details:

T: 08000 75 87 49
E: customerservice@propertysoftwaregroup.com
or such other details as Zoopla may notify to the Client from time to time.

6.6 Zoopla may access and use the Client Data and Client Materials for its own business purposes at its discretion, and the Client grants to Zoopla a worldwide, non-exclusive, perpetual, irrevocable, transferable, sub-licensable right to use the Client Data and Client Materials (and any Intellectual Property Rights therein) for this purpose.

6. Client obligations

6.1 The Client shall:
(a) on request, provide Zoopla with all reasonable assistance and information (including the Request Data) to enable Zoopla to provide the Services;
(b) ensure that all Authorised Users comply with the terms of this Agreement and do not share or otherwise disclose their login details for the Services;
(c) if the Client is a Lender, provide to Zoopla:
(i) as soon as reasonably practicable after the Effective Date, a copy of all historic Property Data in its possession or control; and
(ii) monthly during the Term, any updates to the Property Data that are available to the Client by such method and in such format as the parties may agree from time to time;
(d) be solely responsible for:
(i) determining the accuracy and reliability of the Client Data; and
(ii) providing and supporting any hardware, internet connections and software necessary to access and use the Services (including satisfying any reasonable specifications notified to the Client by Zoopla from time to time);
(e) comply with applicable law in connection with this Agreement and the Services; and
(f) use reasonable endeavours to prevent:
(i) any unauthorised access to, or use of, the Services and promptly notify Zoopla after becoming aware of any such unauthorised access; and
(ii) transmission of any computer virus or other harmful code through its use of the Services.

6.2 The Client shall not:
(a) reproduce or disclose the Results, except as permitted by this Agreement;
(b) allow the number of Authorised Users at any time to exceed the maximum number permitted in the Order Form;
(c) provide any personal data to Zoopla as part of the Client Data;
(d) except as permitted by law or this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any part of the Services; or
(ii) attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;
(e) access or use the Services to:
(i) build a product or service that competes with the Services; or
(ii) provide services to any third party;
(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or make available the Services to any third party; or
(g) attempt to obtain, or assist any third party to obtain, access to the Services other than as provided in this Agreement.

6.3 Zoopla shall not be liable to the Client for any breach of this Agreement resulting from any failure or delay by the Client to perform any of its obligations under this Agreement or to provide any information or assistance reasonably requested by Zoopla.

7. Fees

7.1 Zoopla shall invoice the Client:
(a) as soon as reasonably practicable after the date of this Agreement for any Fees payable for set up and configuration of the Services; and
(b) as soon as reasonably practicable after the end of each month during the Term for the Fees payable for the Client’s use of the Services in that month.

7.2 The Client shall pay the Fees within 30 days after the date of each invoice. Zoopla may charge interest on any overdue amounts calculated daily at a rate of four percentage points above the Bank of England base lending rate from time to time from the due date for payment up to the date of payment (whether before or after judgment).

7.3 All amounts payable under this Agreement are exclusive of VAT which the Client shall pay in addition to and at the same time as the Fees, and are payable in full without set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law).

7.4 After the Initial Term, Zoopla may increase the Fees at any time in line with the Consumer Price Index and may do so without notice to the Client.

7.5 Without prejudice to clause 7.4, Zoopla may increase the Fees at the end of the Initial Term and each Renewal Term by giving 60 days ‘notice to the Client.

8. Intellectual Property Rights

8.1 All Intellectual Property Rights in the Services and the Results are owned by Zoopla or its licensors. Nothing in this Agreement shall transfer these rights to the Client. The Client shall take all steps reasonably requested by Zoopla to confirm Zoopla’s or its licensors’ ownership of these rights.

8.2 The Client hereby grants to Zoopla a perpetual, irrevocable, worldwide, non-exclusive, non-transferable licence to:
(a) store, reproduce, combine with other data and make available to third parties the Client Data, including for providing the Services and other property valuation and comparison systems; and
(b) use the other Client Materials to provide the Services.

8.3 Zoopla grants to the Client a perpetual, irrevocable, worldwide, non-exclusive, non-transferable licence to use the Results solely for the Client’s internal business operations.

8.4 Zoopla shall indemnify the Client against all losses and expenses incurred by the Client arising out of any claim by a third party that the Client’s use of the Services in accordance with this Agreement infringes the Intellectual Property Rights of any third party.

8.5 The Client shall indemnify Zoopla against all losses and expenses incurred by Zoopla arising out of any claim by a third party that Zoopla’s use of the Client Materials in accordance with this Agreement infringes the Intellectual Property Rights of any third party.

8.6 If either party wishes to claim under an indemnity in this clause 8, it shall:
(a) notify the other party promptly of any claim which might give rise to a liability under the relevant indemnity (each an “Indemnity Claim”);
(b) give the other party all information and assistance as the other party may reasonably require to defend or settle the Indemnity Claim;
(c) give the other party sole control of the defence and settlement of the Indemnity Claim;
(d) not make any admission, settlement or compromise in relation to the Indemnity Claim without the other party’s prior written consent; and
(e) subject to clauses 8.6(c) and 8.6(d), take reasonable steps to mitigate any loss which may give rise to an Indemnity Claim.

9. Audit

Zoopla may, on reasonable notice and during Business Hours, conduct an audit of the Client’s use of the Services and the Results to assess whether the Client is complying with its obligations under this Agreement. The Client shall provide Zoopla with reasonable access to its staff, premises and systems to enable Zoopla to conduct each audit.

10. Warranties
Each party warrants and represents that it has the authority to enter into this Agreement.

11. Disclaimer

11.1 The Client acknowledges that Zoopla provides the Results on an open market valuation basis without the benefit of inspection of the property and on the basis that the property is sold with vacant possession and without any material defects in structure or title.

11.2 Except as expressly set out in this Agreement, the Services and the Results are provided on an “as is” basis. The Services and the Results are not provided for any particular purpose and the Client is solely responsible for determining their accuracy, completeness, usefulness and fitness for its intended purposes.

12. Limitation of liability

12.1 Nothing in this Agreement excludes or limits either party’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) the indemnities in clauses 8.4 and 8.5; and
(d) any other liability which cannot be excluded by law.

12.2 Subject to clause 12.1:
(a) Zoopla shall only be liable for direct losses arising out of or in connection with this Agreement;
(b) all warranties, representations and other terms implied by law are, to the maximum extent permitted by law, excluded from this Agreement; and
(c) Zoopla’s total aggregate liability to the Client (whether in contract, tort or otherwise) arising out of or in connection with this Agreement (including for Service Credits) in respect of each 12-month period during the Term shall be limited to the total Fees paid by the Client to Zoopla during that 12-month period.

13. General

13.1 Confidentiality. A party shall disclose information not in the public domain relating to the other (including the Results) only if:
(a) the person to whom the disclosure is made needs the information for the disclosing party to carry out its obligations under this Agreement and does not itself disclose it; or
(b) the law so requires.

13.2 Notice. Any notice given under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office. Any notice will be deemed received: (i) if delivered by hand, on signature of a delivery receipt; or (ii) if sent by pre-paid first-class post or other next working day delivery service on the second Business Day after posting. This clause 13.4 does not apply to the service of any proceedings or documents in any legal action or other method of dispute resolution.

13.3 Force majeure. Neither party shall breach this Agreement by reason of any delay or failure in performance resulting from something beyond its reasonable control. If the failure or delay has persisted for 30 days or longer, the other party may terminate this Agreement immediately by giving notice.

13.4 Assignment. Neither party may assign or otherwise create any interest in any of its rights and obligations under this Agreement without the prior written consent of the other party.

13.5 Subcontracting. Zoopla shall be permitted to outsource or subcontract any of its obligations under this Agreement without the consent of the Client. The Client shall not be permitted to subcontract any of its obligations without written the prior written consent of Zoopla.

13.6 Entire agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes anything previously passing between them relevant to that subject matter.

13.7 Representations. Each party acknowledges that, in entering into this Agreement, it does not rely on anything that is not set out in this Agreement.

13.8 Variation. No variation of this Agreement is effective unless it is in writing and signed by the parties.

13.9 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or at law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the future exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

13.10 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification or deletion under this clause 13.9 shall not affect the validity or enforceability of the rest of this Agreement.

13.11 Counterparts. This Agreement may be executed in counterparts, each of which when executed shall constitute a duplicate original, but the counterparts shall together constitute the same agreement.

13.12 No partnership or agency. Nothing in this Agreement is intended to establish any partnership or appoint either party the agent of the other, or otherwise authorise either party to commit the other in any way whatsoever. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13.13 Third party rights. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

13.14 Compliance with laws. In performing their obligations under this Agreement, the parties shall, and Zoopla shall procure compliance of its subcontractors and group companies shall, comply with all applicable statutes and regulations in force from time to time.

13.15 Governing law and jurisdiction. The construction, validity and performance of this Agreement and all non-contractual obligations arising out of or in connection with this Agreement shall be governed by English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts to resolve any dispute between them