Agent Terms and Conditions
In these Member Terms and Conditions the following terms shall have the following meanings:
"Agent" means an estate and/or lettings agent (and in Scotland, solicitor agents), details of which are set out in theOrder Form;
"Content" means any and all content and materials (including property details and any intellectual property rights ofwhatsoever nature) supplied or made available by, on behalf or on the instruction of, the Member to Dssmove, any Group Company on the Website(s);
"Contract" or "Agreement" means a contract for Services between Dssmove and the Member governed by theseMember Terms and Conditions, the Order Form and, where appropriate, Product Specific Member Terms and Conditions;
"Fees" means the amounts due to Dssmove (or any Group Companies) by the Member under the Contract and set outor calculated in accordance with the Order Form (or as varied from time to time in accordance with clause 4.9); "Force Majeure Event" means an event beyond the reasonable control of the party affected by it;
"Group" means any holding company or companies and any subsidiary undertaking(s) of Dssmove from time to timeand "Group Company" and "Group Companies" means any one or more of such companies;
"Initial Term" means an initial term of the Contract, if any, as set out in the Order Form;
"Lead" means either an email or telephone call received by the Member from buyers, renters, owners or any otherparty, who has contacted the Member using the contact form or contact details supplied on the Website(s);
"Logo" means the Dssmove logo or any other logo as Dssmove or any Group Company may from time to time provideelectronically to the Member;
"Marketing Materials" means the marketing materials provided to the Member by Dssmove or any Group Company forthe purpose of promoting the Services;
"Member" means the Agent;
"Order Form" means the order form for Services (as amended from time to time by a Services Amendment Form orplaced electronically via DssmovePro or as otherwise amended from time to time by the parties in writing) indicating the Services to be provided;
"Product Specific Terms and Conditions" means additional terms and conditions that relate to specific Servicesprovided by Dssmove and to which, in addition to these Member Terms and Condition, the Member shall be subject whilst in receipt of such Services;
"Services" means the services to be provided by Dssmove (or its Group Companies) as set out in the Order Form andwhich may include any, or a combination, of the following:
- A process facilitating the upload by the Member of property details (including images) to the Website(s);
- Displaying the Member's properties on the Website(s);
- Providing the Member with a listing within the agent directory on the Website(s);
- The provision of Leads to the Member;
- The provision of advertising services to the Member;
- The provision of reports and access to reporting tools to the Member; and
- Any other services provided by Dssmove from time to time.
"Services Amendment Form" means the services amendment form signed by the Member indicating an amendmentto the type or level of Services as set out in the Order Form;
"Start Date" a start date for the Contract as may be specified in the Order Form;
"Unique User" means a uniquely identifiable visitor to the Website(s) within any calendar month;
"Upload Systems" means any system made available by Dssmove to the Member to facilitate the supply of Content tothe Website(s);
"Website(s)" means the website located at www.dssmove.co.uk and any other website whose domain is owned orcontrolled or powered by Dssmove or any Group Company as Dssmove may determine and via which Services are provided.
"Working Day" means any day other than Saturday and Sunday and Bank Holidays on which the banks in London areopen for normal business;
"Dssmove" or "the Company" means Dssmove t/a Ellahi Propert Lettings Limited, a company incorporated in Englandand Wales under Company No: 6074771 whose Registered Office is at 29 Waterloo Road, Wolverhampton, WV1 4DJ "DssmovePro" means the backend tool accessible to Members for viewing and managing their Dssmove membership.
- 1. Contract between Dssmove and the Member
- 1.1. No Contract shall subsist until (a) unless waived by Dssmove, an Order Form completed and signed by the Member is received by Dssmove (or a Group Company) and until (b) the later of the Start Date (if any) and Dssmove (or any Group Company) commencing provision of Services (whether by facilitating display of Content on the Website(s) or otherwise) whereupon Dssmove and the Member shall be deemed to have entered into a legally binding Contract on the Member Terms and Conditions set out herein and any relevant Product Specific Terms and Conditions.
- 1.2. The Contract shall be between Dssmove and the Member and shall comprise the Order Form, these Member Terms and Conditions and any relevant Product Specific Terms and Conditions to which the Member is subject which, together, shall constitute the entire agreement between the parties to the exclusion of all previous terms and conditions (whether between the Member and Dssmove or the Member and another Group Company) and all other terms and conditions (including any which the Member purports to apply under any purchase order, confirmation of order or other document).
- 1.3. In the event of any conflict between these Member Terms and Conditions and the Order Form, these Member Terms and Conditions shall prevail and in the event of any conflict between these Member Terms and Conditions and any Product Specific Terms and Conditions, these Member Terms and Conditions shall prevail save where they relate to a matter pertaining to Services to which any relevant Product Specific Terms and Conditions relate whereupon such Product Specific Terms and Conditions shall prevail.
- 1.4. All Contracts between Dssmove (or any Group Company) and a Member shall be governed by these Terms and Conditions and any variation to these Terms and Conditions shall have no effect unless expressly agreed in writing and signed by Dssmove. From time to time, Dssmove may amend these Terms and Conditions and reserves the right to do so in its absolute discretion, acting reasonably, at any time without prior notice to the Member. Any changes will be posted on the Website(s) and become effective at the time of posting.
- 2. Services
- 2.1. Subject to these Member Terms and Conditions and any relevant Product Specific Terms and Conditions, Dssmove (or any Group Company as Dssmove may determine) will provide the Member with the Services in accordance with the Order Form.
- 2.2. Dssmove may vary the Services from time to time with or without notice to the Member.
- 3. Content and Obligations
- 3.1. The Member warrants and represents that:
- 3.1.1. it is an Agent as reasonably determined by Dssmove and that it does not act as a consumer in relation to the Contract.
- 3.1.2. Content will comply with all applicable laws, regulations and codes of practice in the United Kingdom and will not be defamatory or infringe any copyright, trademark or other intellectual property rights or rights of any third party whatsoever;
- 3.1.3. it is responsible for the integrity of the Content which is in all respects true, complete and accurate to the best of the Member's knowledge and belief and the Member shall promptly update or correct Content on becoming aware of any errors or inaccuracies and shall provide such assistance as Dssmove shall reasonably require to identify and remedy any unauthorised use of Content;
- 3.1.4. within no more than 3 Working Days of (i) a property going “under offer”, (ii) a tenancy being entered into in respect of a property, or (ii) the property being taken off the market the Member will either alter the status of the property details in the upload provided to Dssmove so that it may be displayed as “let” as appropriate on the Website(s) or will remove the property from the upload provided to Dssmove so that it is no longer displayed on the Website(s);
- 3.1.5. it has the authority to market the properties in the Content;
3.1.6. it holds all necessary authorities, consents and licences necessary to use, display, reproduce, publish the Content and has authority to and grants Dssmove (and its Group Companies) a licence of the Content on the terms set out in clause 3.2;
- 3.1.7. it has read and will abide by all notices posted on the Website(s) from time to time that are relevant to the provision of the Services;
- 3.1.8. it shall not use Dssmove's name, the name of any Group Company or any Logos, trade or services marks of Dssmove or the Group in a defamatory or derogatory manner or in any way that might bring Dssmove, the Group or its directors or employees into disrepute nor shall the Member misuse or deface (or allow to be misused or defaced) any Marketing Materials provided to it;
- 3.1.9. it will abide by any applicable industry code of conduct or guidelines issued by any relevant trade organisation and will abide by all applicable laws and regulations applying to or affecting Members including, but not limited to, The Property Misdescriptions Act 1991; and
- 3.1.10. it will provide a contactable telephone number. Where a trackable telephone number has been allocated to the Member by Dssmove, the Member will use this number to enable Dssmove to effectively monitor Leads delivered to the Member and take no actions that would interfere with such monitoring, and the Member agrees that Dssmove and its suppliers may record all telephone calls for the purposes of monitoring Leads delivered or replaying Leads to Members;
- 3.1.11. it shall ensure that only its authorised persons have access to the Services and the Upload Systems and that where it provides Content via the Upload Systems it shall only do so in a format compatible with any technical specifications issued by Dssmove from time to time. The member agrees to use this format to display details of the property only, as laid out, and not to use these areas to advertise ancillary company information.
- 3.2. The Member grants Dssmove and the Group a non-exclusive, royalty free, perpetual licence to copy, reproduce, display, sell, publish, adapt and otherwise use the Content or data or other information derived therefrom for any purpose whatsoever (including entering into agreements with third parties for the provision of the Content or data derived therefrom). This licence shall survive termination of the Contract. The Member agrees that Dssmove and any Group Company may, but shall not be required to, identify the Member as the source of the Content on the Website(s) or in any other medium through which the Content or any derivative thereof is published or displayed.
- 3.3. Dssmove may:
- 3.3.1. in its absolute discretion, at any time and without notice to the Member, remove, cause to be removed or decline to display any Content on the Website(s); and
- 3.3.2. without prejudice to Dssmove’s right as set out in 3.3.1 above, require the Content to be amended at any time if Dssmove considers or has reason to believe that the Member is in breach of the Contract or where it deems in its absolute discretion the Content to be of poor quality in terms of presentation, information provided or otherwise.
- 3.4. The Member acknowledges and agrees that:
- 3.4.1. neither Dssmove nor any Group Company shall be under any obligation to monitor or censor the
Content that appears on the Website(s) but Dssmove reserves the right for itself (and the Group) to do so;
- 3.4.2. neither Dssmove nor any Group Company is responsible for any error or omissions in any Content;
- 3.4.3. technological failure may impede the provision of the Services or prevent access to all or any part of the Content displayed on the Website(s) or to the Upload Systems. Dssmove makes no representation or warranty that the Website(s), the Services, the Content or the Upload Systems will be accessible or available at all times, or that the whole or any part of the Website(s), Services, the Content or Upload Systems will be free from error and while Dssmove will make reasonable endeavours to notify the Member in advance, it may suspend temporarily or alter the operation of the Website(s), Services or the Upload System without notice to the Member;
- 3.4.4. it is responsible for and will pay all telecommunications and internet access charges incurred by it when using the Website(s);
- 3.4.5. transmission of data over the internet can be subject to delays and errors and can cause corruption of data for which neither Dssmove nor any Group Company shall be responsible;
- 3.4.6. Dssmove may limit (i) the number of properties that may be displayed to 100 per branch and (ii) the number of photographs that may be displayed by the Member to 15 images per property;
- 3.4.7. it is prohibited from uploading to or seeking to display or advertise on the Website(s) or use the Services to promote or market commercial properties and the Member agrees that it shall only use the Services in relation to residential properties that are situated in the United Kingdom;
- 3.4.8. where the Services are limited in any way (including but not limited to limits set out in 3.4.6 or 3.4.7) the Member will make no attempt to exceed or circumvent such limits;
- 3.4.9. in providing the Services, and in order to provide information of other Dssmove products and services, Dssmove and the Group Companies may, unless otherwise agreed in writing by Dssmove and the Member, contact the Member by electronic means, including e-mail and other electronic media and the Member shall maintain a valid working e-mail address for each of its branch offices and shall immediately notify the Company of any change of e-mail addresses;
- 3.4.10. it shall for the duration of the Contract, take reasonable steps to promote the Website(s) to its customers and display any Marketing Materials provided by Dssmove at its premises, provide a link on its website to the Website(s) and include the Logo in its sales and advertising materials. For the purpose of carrying out these obligations only, Dssmove grants the Member a non-exclusive licence for the duration of the Contract to use, display and copy the Logo, the Dssmove name and any trade or services marks used by Dssmove or the Group and copyright (or other intellectual property rights) contained in the Marketing Material; and
- 3.4.11. all intellectual property rights in the Services, technology supporting the Services (including the Upload System) and the Website(s) vest in Dssmove and/or its licensors/sub-contractors and that the Member has no rights in, or to, such intellectual property other than the right to use the same in accordance with the Contract.
- 3.5. Any third party, purporting to act as agent for or on behalf of a prospective Member, contracting with Dssmove for the provision for Services warrants and represents that it has the full and valid authority of that prospective Member to bind it and to the extent that (i) that third party exceeds its authority and/or (ii) the prospective Member refuses to such pay any Fees or charges that third party shall be liable, on an indemnity basis, for all Fees and any other charges due hereunder.
- 3.6. The Member shall not publish, disclose, reproduce or create any derivative works from any information obtained pursuant to the Member's use of the Services unless expressly agree in writing by Dssmove.
- 3.7. The Member shall promptly notify Dssmove if there is any increase or decrease in the number of branch offices operated by the Member.
- 4. Fees
- 4.1. Dssmove currently is free and therefore no fees or any other charges shall be payable by the Member in accordance with these Member Terms and Conditions.
- 4.2. Dssmove reserves the right to start charging each Member fees at anytime in the future and prior to doing so will provide 30 calendar days written notice to the Member.
- 5. Liability
- 5.1. All warranties, conditions, representations or other terms implied by statute or common law in relation to the Website(s) and any Services provided to the Member by Dssmove (or any Group Companies) are excluded to the fullest extent permitted by law.
- 5.2. Neither Dssmove nor any Group Companies shall be liable to the Member under or in connection with the Contract for any loss of business, contracts, profits, anticipated profits, savings or data, or for damage to hardware and software, or for any indirect, special or consequential loss or damage whatsoever.
- 5.3. Except as provided in Clause 5.4, the total liability of Dssmove and the Group to the Member for loss or damage under or in connection with the Contract (including any liability for negligence on the part of itself, its directors, employees, agents or assigns) shall not exceed the aggregate amount of Fees (exclusive of VAT) paid by the Member in the three months immediately preceding the month in which the Member incurred the loss or damage occasioning such liability to Dssmove or any Group Companies. This limitation of liability may be further limited by the relevant Product Specific Terms and Conditions in respect of any claim relating to Services to which those Product Specific Terms and Conditions apply.
- 5.4. Nothing in the Contract shall exclude or limit liability for death or personal injury resulting from the negligence of Dssmove or the Group or for fraud or any other liability that cannot be excluded or limited by law.
- 5.5. Neither Dssmove nor any Group Company shall be liable for any liability caused by the Member's breach of the Contract;
- 5.6. The Member accepts full liability for and shall indemnify Dssmove (and the Group) on demand against any and all claims, losses, damages, costs and expenses (including reasonable legal and other professional fees) incurred by Dssmove (and the Group) in relation to any third party claim arising from the Content or misuse by the Member of the Services except to the extent that the foregoing results directly from the negligence of Dssmove (or any Group Company).
- 5.7. The Member agrees that this Clause 5 is fair and reasonable.
- 6. Confidentiality
Dssmove and the Member agree to keep any and all Confidential Information that is obtained about the other strictly confidential. "Confidential Information" means any information or matter concerning the business, finances, technology or affairs of the other party which is not in the public domain (other than by breach of this clause) but shall not include any information that either party is required to disclose by law or which has come into the public domain other than by breach of this clause. This clause shall survive termination of the Contract.
- 7. Termination and effect of termination
- 7.1. Each Contract shall continue until terminated in accordance with these Member Terms and Conditions.
- 7.2. Dssmove or the Member shall be entitled to terminate the Contract at will:
- 7.2.1. where no Initial Term is specified in the Order Form, and subject to clause 7.7, on at least 30 calendar days written notice, to the other party such notice to expire at the end of a calendar month;
- 7.2.2. where an Initial Term is specified in the Order Form, on at least 30 calendar days written notice (to expire at the end of a calendar month falling not before the expiry of the Initial Term).
- 7.3. Either party may terminate the Contract immediately upon written notice to the other party if the other party
- 7.3.1. commits any material or persistent breach of the Contract and, in the case of breaches capable of remedy, that other party fails to remedy the same within 14 calendar days of receipt of a written notice giving particulars of the breach and requiring it to be remedied; or
- 7.3.2. ceases to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all the liabilities of it) or a court of competent jurisdiction shall make an administrative order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors or is unable to pay its debts as they fall due; or
- 7.3.3. if the other party is subject to a Force Majeure Event that continues for longer than one month.
- 7.4. Without limiting any other rights contained in these Member Terms and Conditions or any relevant Product Specific Terms and Conditions, Dssmove (or any Group Companies on its behalf) may immediately, suspend provision of the Services or access to or temporarily remove any Content from the Website(s) (or cause any of those things to occur) if the Member breaches the Contract and fails to rectify that breach immediately upon receipt of notice requiring rectification.
- 7.5. On termination of the Contract for whatever reason:
- 7.5.1. all Fees and any other sums due from the Member to Dssmove (or any Group Companies) shall immediately become payable and the Member shall immediately pay Dssmove such sums in full;
- 7.5.2. the licences referred to in clause 3.4.10 (or contained in any Product Specific Terms and Conditions) shall immediately terminate; and
- 7.5.3. the Member shall immediately cease using the Services and permanently delete any access passwords for the Services or the Upload Systems.
- 7.6. Termination or suspension shall not affect the accrued rights or liabilities of Dssmove, or any Group Companies or the Member nor, in the case of termination, any provision of the Contract which is expressed as surviving the Contract or which is required to survive the Contract to give effect thereto.
- 7.7. Where the Contract provides on either the Order Form, the Services Amendment Form or on DssmovePro for the provision of additional, premium or add on Services which are stated as being subject to a minimum order period or term (other than the Initial Term), the Member may not terminate the Contract until the expiration of such minimum order period.
- 8. Force majeure
Neither Dssmove (or any Group Companies) nor the Member shall be liable for any delay or non-performance under the Contract caused by a Force Majeure Event provided that the party affected gives prompt notice in writing to the other party of such event and uses reasonable endeavors to continue to perform its obligations under the Contract.
- 9. General
- 9.1. Nothing in these Member Terms and Conditions or any Product Specific Terms and Conditions shall be deemed to create an exclusive arrangement between the Member and Dssmove (or any Group Companies ) nor any agency, partnership or joint venture between the parties.
- 9.2. Dssmove and the Member shall comply with the Data Protection Act 1998 in relation to use of personal data obtained from users of the Website(s) and shall take appropriate technical, organisational and security measures to prevent loss or unauthorised access or use of personal data.
- 9.3. The Member may not assign, transfer or dispose of the benefit or burden of the Contract without the prior written consent of Dssmove.
- 9.4. If any provision of the Contract shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the remainder of the Contract shall not be affected.
- 9.5. No failure or delay by Dssmove (or any Group Company on its behalf) or the Member in exercising any of its rights or remedies under the Contract shall operate as a waiver of those rights or remedies. No waiver of any breach of the Contract shall be effective unless in writing and shall apply only in relation to the matter in respect of which it was specifically given. No waiver of any breach of the Contract shall be deemed to be a waiver of any subsequent or other breach of the Contract.
- 9.6. Any notice required or permitted to be given by either party to the other under the Contract shall be in writing and addressed to that other party at its registered office or principal place of business or faxed to its facsimile number set out on the Order Form or by email to the nominated email address set out on the Order Form. Any notice or document shall be deemed to have been served (i) if delivered, at the time of delivery, (ii) if posted, two Working Days after it was put into the post, or (iii) if sent by facsimile [or e-mail] at the time of
despatch. In proving service of a notice or document it shall be sufficient to prove that delivery was made or that the envelope containing the notice or document was properly addressed and posted as a prepaid first class letter or that the facsimile or e-mail message was properly addressed and despatched as the case may be.
- 9.7. No person other than the parties to the Contract and members of Dssmove's Group have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This does not affect any right or remedy of any third party that exists or is available apart from that Act.
- 9.8. The Contract shall be governed by and construed in accordance with English law and Dssmove and the Member submit to the exclusive jurisdiction of the English courts.
These Member Terms and Conditions were last updated on 01 January 2013.