Terms Of Use
Terms Of Use
AGREEMENT
These general terms and conditions (the “Agreement”) apply
to all use of the “Guided”, “Guided Home” web-based and mobile applications,
associated application programming interfaces, and the administration portal
(the “Platform”) and is a legally binding contract between:
- OTP
Tech Limited (a private limited company incorporated under the laws
of England and Wales and having its registered place of business at 20
Wenlock Road, London, England. N1 7GU (the “Supplier”);
- and
the natural person or corporate entity that has, through its authorised
representative, subscribed to use the Platform (by subscribing online,
submitting a request directly to an authorised representative of the
Supplier, or signing an order form referencing this Agreement and / or the
Pricing Schedule with the Supplier or its authorised re-seller (an “Order
Form”)) (the “User”). If the User does not agree to this Agreement then it
must not use, and shall immediately stop using, the Platform.
COMMENCEMENT AND DURATION This Agreement is effective and
legally binding from: the effective date of the relevant Order Form; or the
point in time that the User first uses the Platform, whichever occurs first
(the “Effective Date”) and shall thereafter continue, unless and until
terminated in accordance with the provisions of the relevant Order Form or
this Agreement, for the subscription period described in the relevant Order
Form (the “Subscription Period”).
PERMISSIONS AND CONDITIONS OF USE
Licence: Subject to the User’s continuing compliance with
this Agreement, the Supplier grants the User a non-exclusive and
non-transferable right to permit its directors, employees, contractors, and
officers (“Authorised Users”) to access and use the Platform during the
Subscription Period solely for the permitted purposes described in
clause 3.2. Permitted Purposes: The User shall use the Platform in
accordance with the conditions of use described in clause 3.3 and for
use in the User’s internal operations and for the limited purposes described in
this Agreement only. Conditions of Use: The User shall not: permit anyone to
access or use the Platform who is not an Authorised User or subject the
Platform to any form of automated or robotic processes; submit any material to
the Platform unlawfully (including in breach of the Data Protection
Legislation) or in facilitation of illegal activity; use the Platform in a way
that could damage, disable, overburden, impair, or compromise the Supplier’s
systems or security or interfere with other users of the Platform; use the
Platform to: (a) threaten, harass or cause distress, annoyance, needless
anxiety or discomfort to any other person or entity; (b) carry out any unlawful
or fraudulent act; (c) upload data which is intended or is likely to deceive;
(d) transmit, or procure the sending of, any unsolicited or unauthorised
advertising or promotional material or any other form of similar solicitation;
(e) knowingly transmit any data, send or upload any material that contains
viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware
or any other harmful programs or similar computer code designed to adversely
affect the operation of any computer software or hardware; (f) impersonate a
person or entity; (g) engage in activities that may put the ongoing operational
and commercial viability of the Platform at risk; have any right to copy,
adapt, reverse engineer, de-compile, disassemble, modify, adapt or make error
corrections to the Platform except, with respect to de-compilation of
the Platform only, to the extent expressly permitted by the Copyright, Designs
and Patents Act 1988 and with prior written notice to the Supplier; access the
Platform in order to build a platform or service which competes with the
Platform or the business of the Supplier; or use the Platform to provide
services to third parties.
THE PLATFORM
The Supplier makes the Platform available with reasonable
skill and care and shall ensure that the Platform performs (in technical and
functional respects) substantially in accordance with the description of the
Platform located at https://guidedhome-old.codelibry.dev
(the “Platform Specification”). The Supplier will provide the User the ability
to use the Platform and associated functionality on-demand. The Supplier has
sole discretion and control over, and may modify at any time (with notice to
the User), the functionality, performance, configuration, appearance and
content of the Platform (and may reflect this in updates to the Platform
Specification) provided that, in each case such modifications do not result in
a material reduction to, or loss of, the functionality, performance,
transmission speeds, content, latency and/or accuracy of the Platform. The
Supplier shall perform secure back-ups of User Data (as defined in
clause 5.2 (DISCLAIMERS)) held in the Supplier’s own or external
systems not less than once in every period of twenty-four (24) hours. The
Supplier does not warrant or represent that the User’s use of the Platform
shall ensure the User’s compliance with applicable laws (including Data
Protection Legislation) and the parties agree that all information of a legal
nature (including relating to Data Protection Legislation and SARS-CoV 19)
available: (a) through the Platform; and/or (b) in the online help, FAQs,
manuals, and/or questionnaires made available by the Supplier are used at the
User’s own risk, and under no circumstances constitute the provision of legal
advice by the Supplier. The provision of set-up, direct training, and other
such professional services may be agreed between the parties from time to time
in writing (including in an Order Form) and may be subject to charges and/or
fees.
DISCLAIMERS Subject to clause 14.11 (LIABILITY) and except
to the extent expressly set out in clause 4 (THE PLATFORM), the Supplier gives
no warranties, representations, or other commitments to the User as to the
quality, accuracy, and/or regulatory compliance of practical completion
handover, homeowner handover and/or building management handover of the content
created and/or uploaded by the User on the Platform. In the event of any loss
or damage to any data or information submitted to the Platform by or on behalf
of the User (including by the Supplier) (the “User Data”), the User’s sole and
exclusive remedy shall be for the Supplier to use its reasonable commercial
endeavours to restore the lost or damaged User Data from the last available
back-up of such User Data maintained by the Supplier in accordance with
clause 4.3. The Supplier shall have no liability for any delays, delivery
failures, or any other loss or damage resulting from the transfer of data over
communications networks and facilities, including the internet, and the User
acknowledges that use of the Platform may be subject to limitations, delays and
other problems inherent in the use of such communications facilities.
CONFIDENTIALITY In this clause 6 (CONFIDENTIALITY)
and where used elsewhere in this Agreement, “Confidential Information” means
any and all information that is proprietary and/or confidential in nature and
is either clearly labelled as such or would, by its nature, be considered by a
reasonable business person to be confidential. The obligations contained in
this clause 6 (CONFIDENTIALITY) shall not apply to Confidential
Information that: (a) is or becomes publicly known other than through any act
or omission of the receiving party; (b) was in the other party’s lawful
possession before the disclosure; (c) is lawfully disclosed to the receiving
party by a third party without restriction on disclosure; or (d) is
independently developed by the receiving party without use or reference to the
other party’s Confidential Information. Each party shall: (a) use commercially
reasonable endeavours to hold the other party’s Confidential Information
in confidence (including by using the same care and discretion to avoid disclosure,
publication or dissemination as it uses to protect its own similar
information); and (b) subject to clause 6.4, not make the other’s
Confidential Information available to any third party, or use the other’s
Confidential Information for any purpose other than in connection with the
provision or receipt of the Platform (as the case may be). Either party may
disclose the other party’s Confidential Information if and to the extent
required by applicable law or by any regulatory body or securities exchange,
provided that the disclosing party shall as soon as reasonably practicable and
to the extent permitted by applicable law notify the other party in writing of
the circumstances of such disclosure and the Confidential Information to which
such disclosure applies. The User warrants and represents to the Supplier that
it has the right to disclose the Confidential Information and to authorise the
Supplier to use such Confidential Information in connection with the
Platform.
USER PERSONAL DATA Each party shall comply with their
respective obligations set out in the Data Protection
Addendum available through the Platform.
USE OF AGGREGATED DATA The Supplier may collect, group,
anonymise and aggregate data and information submitted to the Platform (the
“Aggregated Data”) for the purpose of analysing the performance of the
Platform, optimising and making improvements to the Platform (including for
efficiency and functional performance) and the Supplier’s business, analysing
use of the Platform, informing the Supplier’s business decisions, revealing
market trends, and monitoring user satisfaction and the User hereby gives its consent
to the same. The Supplier shall ensure that Aggregated Data is not attributable
to any particular User.
USER’S OBLIGATIONS The User shall: perform, or procure
the performance of, if any, obligations and dependencies listed in the Order
Form (including for the purposes of completing on-boarding); have
responsibility for, and shall pro-actively manage: (a) the access control for
the Authorised Users; and (b) the push notifications to Authorised User’s
devices; comply with all applicable laws, regulations and binding codes of
practice with respect to its activities under and in connection with this Agreement;
obtain and shall maintain all necessary licences, consents, and permissions
necessary for it to: (a) provide and/or make available the User
Data and User Personal Data (as defined in the Data
Protection Addendum) under this Agreement; and (b) connect its
computing environment to the Platform (including all hardware and
equipment required to use the Platform); and be solely responsible for
procuring and maintaining the hardware necessary to use the Platform and its
network connections and telecommunications links from its systems to the
Supplier’s data centres, and all problems, conditions, delays, delivery
failures and all other loss or damage arising from or relating to the User’s
network connections or telecommunications links or caused by the internet. The
User is responsible for all acts and omissions of Authorised Users as if such
acts or omissions were its own. An obligation of the User contained in this
Agreement (unless the context reasonably requires otherwise) includes an
obligation on the User to ensure that an Authorised User does not act, or
omit to act, in breach of that obligation.
FEES AND PAYMENT The Service will commence at the User’s
discretion and be triggered when representatives of the User request a service
or commences use of the Platform. The “Fees” payable under and in connection
with this Agreement shall be described in the relevant invoice and be completed
in line with the cost structure outlined in this Agreement and the agreed
Pricing Schedule The Fees shall be invoiced upon receipt of the request for the
known development / plot numbers at the point of User Onboarding and paid
annually in advance. Any future invoices will be generated based on any new
User requests received and / or the developments / plots created on
platform and be invoiced upon request to be paid annually in advance. All
amounts and Fees stated or referred to in this Agreement are exclusive of all
sales taxes (including any value added tax). Value added tax shall be added to
the Fees at the appropriate rate (if applicable).
INTELLECTUAL PROPERTY RIGHTS In this
clause 11 (INTELLECTUAL PROPERTY RIGHTS) and where used elsewhere in
the Agreement: “Intellectual Property Rights” means: (a) patents, registered
designs, applications for any of the foregoing, the right to apply for and be
granted any of the foregoing, rights in inventions; (b) copyrights, design
rights, moral rights, publication rights, database rights; (c) trademarks and
service marks, applications for any of the foregoing, the right to apply
for any of the foregoing, rights in trade names, business names, brand names,
get-up, logos, domain names and URLs; (d) rights in know-how, trade secrets and
confidential information, data exclusivity rights; and (e) all other forms of
intellectual property right having equivalent or similar effect to any of the
foregoing which may exist anywhere in the world. The User acknowledges and
agrees that the Supplier and/or its licensors own all Intellectual Property
Rights in: (a) the Platform (excluding the User Data); (b) all materials
provided and/or made available as part of providing the Platform; and (c)
any/all adaptations, add-ons, modifications, updates, and/or enhancements to
the Platform and such materials (including at the request and/or
suggestion of the User or an Authorised User), (the “Supplier’s IPR”). The
Supplier may freely incorporate into the Supplier’s IPR any feedback and/or
suggested improvements to the Supplier’s IPR given by the User or an Authorised
User. Except as expressly stated in this Agreement, the User shall have no
right or interest in the Supplier’s IPR. The User owns all Intellectual
Property Rights in and to all of the User Data and shall have sole
responsibility for the legality, non-infringement, reliability, integrity,
accuracy and quality of the User Data. The User hereby grants to the Supplier
(and its representatives and sub-contractors) a non-exclusive,
non-transferrable right to use the User Data strictly to the extent necessary
for the Supplier (or the Supplier’s representative or sub-contractor as the
case may be) to provide and make available the Platform.
INDEMNITIES
The User shall indemnify and hold harmless the Supplier, its
affiliates, its and their officers, directors, sub-contractors, and employees
against any Losses arising out of or in connection with any allegation or claim
that the User Data: (a) infringe any Intellectual Property Rights; or (b)
have been provided in breach of applicable laws (the “User Indemnity”).
The Supplier shall ensure that: (a) the User is given prompt notice of any
allegation or claim to which the User Indemnity applies; (b) it provides
reasonable co-operation to the User in the defence and settlement of such
claim; and (c) the User is given, where possible, sole authority to defend or
settle the claim. Subject to clause 12.4, the Supplier shall indemnify and
hold harmless the User against any claim made against it by a third party to
the extent that such claim alleges that the User’s use of the Platform in
accordance with this Agreement infringes any Intellectual Property Rights
belonging to that third party (the “Supplier Indemnity”), provided that the
Supplier indemnity shall only apply if: (a) the Supplier is
given prompt notice of any such claim (and in any event is given notice
within five (5) days of the User becoming aware of, or being notified of, the
claim); (b) the User provides reasonable co-operation to the Supplier in the
defence and settlement of such claim; and (c) the Supplier is given sole
authority to defend or settle the claim. In the defence or settlement of any
claim to which the Supplier Indemnity applies, the Supplier may procure the
right for the User to continue using the Platform, replace or modify the
Platform so that it becomes non-infringing or, if such remedies are not
reasonably available, terminate or suspend this Agreement (and the User’s
access to the Platform) on notice to the User without any additional liability
to the User. In no event shall the Supplier, its employees, agents or
sub-contractors be liable to the User to the extent that the claim to which the
Supplier Indemnity applies is based on: (a) a modification of the Platform by
anyone other than the Supplier or its representatives; and/or (b) the User’s
use of the Platform in a manner contrary to the instructions given to the User
by the Supplier or applicable laws. The User shall have no rights and remedies
in respect of infringement of any third-party Intellectual Property Rights
except as expressly set out in clause 3.
TERMINATION Each party shall have the right to terminate the
Subscription Period for convenience (e.g., without cause) by providing not
less than one (3) month’s written notice provided that, where the User
exercises its rights under this clause 13.1, the User shall not be
entitled to receive a refund, rebate, and/or credit of any Fees that have been
paid. Without affecting any other right or remedy available to it, either party
may terminate this Agreement and the Subscription Period with immediate effect by
giving written notice to the other party if the other party commits
a Material breach (or a series of persistent breaches which together
amount to a Material breach) of any term of this Agreement that: (a) is
irremediable; or (b) if such breach is remediable, is not so remedied
within thirty (30) calendar days from written notice requiring remedy of
the Material The Supplier may terminate this Agreement if the User (or an
Authorised User) commits any breach (Material or otherwise) of any one or
more of the following clauses: 3 (PERMISSIONS AND CONDITIONS OF
USE); 6 (CONFIDENTIALITY); and/or 9 (USER’S OBLIGATIONS).
On termination or expiry of this Agreement for any reason: (a) all rights and
licences granted under this Agreement shall immediately terminate and the
User must cease using the Platform; (b) each party shall return, and make no
further use of, any equipment, property, and other items (and all copies of
them) belonging to the other party; and (c) the Supplier may destroy or
otherwise dispose of any of the User Data in its possession unless the Supplier
receives, no later than ten (10) calendar days from the effective date of the
termination or expiry of this Agreement, a written request for the delivery to
the User of such User Data. Termination or expiry of this Agreement
(howsoever occurring) shall be without prejudice to any rights or liabilities
which may have accrued up to the date of such termination or expiry and it
shall not affect the coming into force or the continuance in force of any
of its provisions which are expressly or by implication intended to come into
or continue in force on or after such termination or expiry.
LIABILITY
Nothing in this Agreement shall limit or exclude either
party’s liability to the other to a greater extent than is permitted under
applicable law for Losses resulting from: (a) death or personal
injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c)
any matter in respect of which Losses may not be limited or excluded
under applicable laws. Except as expressly provided otherwise in
clause 14.3, nothing in this Agreement shall limit or exclude Losses
that are subject to the User Indemnity or the Supplier Indemnity. Subject to
clause 14.1 and clause 14.2, neither party shall be liable
to the other (or any third party claiming under or through the other) under any
and all causes of action (whether such causes of action arise in contract
(including under any indemnity or warranty), in tort (including negligence or
for breach of statutory duty) or otherwise) for Losses that
comprise: (a) loss of profit or revenue (except for the Fees); (b) loss of
anticipated savings; (c) loss of contract or business opportunity; (d)
depletion of goodwill; (e) loss or corruption of data or information
except as described in clause 5.2; or (f) any special, indirect or
consequential loss, in each case, whether arising directly or indirectly under
or in connection with this Agreement and whether or not reasonably foreseeable,
reasonably contemplatable, actually foreseen or actually contemplated by a
party. Subject to clauses 14.1, 14.2 and 14.3, each
party’s total aggregate liability to the other (and to any third party claiming
under or through the other) in each Contract Period and in respect of
all causes of action (whether such causes of action arise in contract
(including under any indemnity or warranty), in tort (including negligence or
for breach of statutory duty) or otherwise) arising in that Contract Period (as
determined at the date when the liability giving rise to the cause of action
arose) shall not exceed one hundred percent (100%) of the total Fees paid by
the User to the Supplier in respect of the Contract Period in question. The
parties agree that the provisions of this clause 14 (LIMITATION
OF LIABILITY) are considered by them to be reasonable in all the circumstances,
having taken into account section 11 and the guidelines in schedule 2 of the
Unfair Contract Terms Act 1977 and the nature of the services described in this
Agreement and the Fees.
FORCE MAJEURE
Other than in respect of the User’s obligation to pay the
Fees or agreed expenses, neither party shall have any liability to the other
under this Agreement if it is prevented from or delayed in performing its
obligations, by acts, events, omissions or accidents beyond its reasonable
control, including strikes, lock-outs or other industrial disputes,
failure of a utility service or transport or telecommunications network,
epidemic or pandemic, act of God, war, riot, civil commotion, malicious damage,
compliance with any law or governmental order, rule, regulation or direction,
accident, breakdown of plant or machinery, fire, flood or storm.
GENERAL
Survival: The rights and obligations under provisions of
this Agreement which expressly or by their nature survive termination shall
remain in full force and effect. Sub-contracting: The Supplier may
sub-contract the performance of its obligations (or any part thereof) to
any third-party service-provider provided that the Supplier shall remain
responsible for all acts and omissions of such third party service-providers
that result in a breach of the Agreement. Variations: No variation of this
Agreement shall be effective unless it is in writing (which may be by e-mail)
and agreed by the parties. No Waiver: No failure or delay by a party to
exercise any right or remedy provided under this Agreement or by applicable law
shall constitute a waiver of that or any other right or remedy, nor shall
it prevent or restrict the further exercise of that or any other right or
remedy. Severability: If any provision (or part of a provision) of this
Agreement is found by any court or administrative body of competent jurisdiction
to be invalid, unenforceable or illegal, the other provisions shall remain in
force. If any invalid, unenforceable or illegal provision would be valid,
enforceable or legal if some part of it were deleted, the provision shall apply
with whatever modification is necessary to give effect to the commercial
intention of the parties. Entire Agreement: This Agreement, and any
documents referred to in it, constitute the whole agreement between the parties
and supersede any previous arrangement, understanding or agreement between them
relating to the subject matter they cover. Each of the parties acknowledges and
agrees that in entering into this Agreement it does not rely on any
undertaking, promise, assurance, statement, representation, warranty or
understanding (whether in writing or not) of any person (whether party to
this Agreement or not) relating to the subject matter of this Agreement,
other than as expressly set out in this Agreement. Each party agrees that it
shall have no claim for innocent or negligent misrepresentation or negligent
misstatement based on any statement in this Agreement. Assignment: Except
in respect of invoice financing or the recovery of a debt owed, neither party
shall assign any of its rights under this Agreement without the prior written
consent of the other party, such consent not to be unreasonably withheld
or delayed. Third Party Rights: This Agreement does not confer any
rights on any person or party (other than the parties to this Agreement)
pursuant to the Contracts (Rights of Third Parties) Act 1999. No
Partnership: Nothing in this Agreement or through use of the Platform is
intended to, or shall be deemed to, establish any partnership or joint venture
between the parties, constitute any party the agent of the other party,
nor authorise a party to make or enter into any commitments for or on
behalf of the other party. Publicity: We may wish to publicise our involvement
in this matter. We shall assume that you are happy for us to do so unless you
instruct us to the contrary. Governing Law & Jurisdiction: This
Agreement and any dispute or claim arising out of or in connection with it
(including non-contractual disputes or claims) shall be governed by and
construed in accordance with English law. 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
(including non-contractual disputes or claims).
INTERPRETATION
In this Agreement:
- the
headings are for convenience only and shall not affect its interpretation;
- any
obligation on a party not to do something, includes an obligation not to
agree, allow, permit or acquiesce to that thing being done;
- any
reference in this Agreement to any enactment or statutory provision
or subordinate legislation will be construed as a reference to it as
from time to time replaced, amended, consolidated or re-enacted (with or
without modification) and includes all orders, rules or regulations made
under such enactment; references to a party shall be construed as the User
or the Supplier and parties shall be construed as the User and the
Supplier taken together;
- any
list, word, or phrase following the words including, include, in
particular, for example, or any such similar expression shall be construed
as having the phrase without limitation following them; the rule known
as eiusdem generis shall not apply and accordingly, words
introduced by the word other shall not be given a restrictive meaning by
reason of the fact that such words are preceded by words indicating a
particular class of acts,
- matters
or things; a reference to the performance of an obligation from a given
date shall include that date; “Contract Period” means each calendar month
or each successive period of twelve (12) calendar months from the
Effective Date; “Losses” means all losses, liabilities, damages, costs,
charges, and reasonably incurred expenses (including management time,
legal fees, other professional advisers’ fees, and costs and disbursements
of investigation, litigation, settlement, judgment, interest, fines, penalties
and remedial actions) howsoever arising in connection with a party’s
breach of the Agreement; and “Material” in the context of classifying the
seriousness of a breach means that such breach is: (a) more than trivial
but need not be repudiatory; and (b) if not remedied (or if not capable of
remedy), may or is likely to have, a serious impact on the benefit which
the innocent party would otherwise derive from performance of the
Agreement in accordance with its terms.
END
