DEFINITIONS

Contract: the Customer’s Order and the Supplier’s acceptance of it.

Customer: the person, firm or company who purchases Services from the Supplier, who has Services purchased for him by, for example, his solicitor acting as his agent, or who uses the Website.

Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including reports, data, computer programs, and specifications (including drafts).

Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

In-put Material: all Documents, information and materials provided by the Customer relating to the Services.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order: either a written purchase order or a simple request for Services, however made.

Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.

Services: the services to be provided by the Supplier as set out on the Website, in the quotation, in the specification or in any other document which forms part of the Contract, together with any other services (or information) which the Supplier provides, or agrees to provide, to the Customer.

Supplier: Green ASAP Limited (company no. 6253967) (VAT number [ ]) whose registered office is at 95 Queen Street, Sheffield S1 1WG.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

Website: the website at www.greenasap.com, and all other websites hosted by the Supplier from time to time, including any Documents supplied by or via such websites.

1. A reference to writing or written includes faxes but not e-mail.
2. Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

APPLICATION OF CONDITIONS

1. These Conditions shall:
   1. apply to and be incorporated into the Contract; and
   2. prevail over any inconsistent terms contained, or referred to, in the Order, confirmation of Order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2. The Customer’s Order constitutes an offer by the Customer to purchase or use the Services on these Conditions. No Order placed by the Customer shall be accepted by the Supplier other than by an email acknowledgement issued by the Supplier. At this point, the Contract shall come into existence.
3. If the Services are ordered by a solicitor or other agent acting on behalf of a Customer, then the solicitor or agent must ensure that he brings these Conditions to the attention of the Customer before placing the Order.

COMMENCEMENT AND DURATION

1. The Services supplied under the Contract shall be provided by the Supplier to the Customer from the moment the Supplier issues its email acknowledgement in accordance with condition 2.2, and shall continue until the Services are completed.

SUPPLIER’S OBLIGATIONS

1. The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the information on the Website. The information on the Website shall not, however, form part of the Contract.
2. The Supplier shall use reasonable skill and care in performing the Services.
3. The Customer acknowledges and agrees that the Supplier, in providing the Services and any Deliverables, will often be using information from third party sources. The Supplier does not warrant
   1. the accuracy or completeness of such information; or
   2. that these sources represent an exhaustive or comprehensive list of all sources that might be consulted.
4. The Supplier shall use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

CUSTOMER’S OBLIGATIONS

1. The Customer shall:
   1. co-operate with the Supplier in all matters relating to the Services, and make a reasonable inspection of any Deliverables to check for any obvious defects, and report any material defects it discovers to the Supplier within 7 days of discovering them;
   2. provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may reasonably require and ensure that it is accurate in all material respects;
2. If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
3. The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
4. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of [12] months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

CHARGES AND PAYMENT

1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Supplier’s standard charges for the Services at the time of the supply of the Services.
2. All charges quoted to the Customer shall be exclusive of VAT and any other applicable taxes, which the Supplier shall add to its invoices at the appropriate rate.
3. Payment is due, in full and in cleared funds, at the latest on the date the Deliverable is supplied. The Supplier reserves the right, however, to demand payment in advance, provided it informs the Customer by the time of the Order.
4. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
   1. charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of The National Westminster Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; alternatively, the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
   2. suspend all Services until payment has been made in full.
5. Time for payment shall be of the essence of the Contract.
6. All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7. The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

INTELLECTUAL PROPERTY RIGHTS

1. As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 7.2, the Supplier licenses the Intellectual Property Rights in the Deliverables to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. Reasonable use might include, for example, making a report about a particular property available to the owner of that property or, in relation to that property, any mortgagee or any person for whom the Customer acts in a professional capacity or any person who provides professional services to the Customer, or prospective buyers of that property as part of an Information Pack (but, for the avoidance of doubt, the Supplier shall not be liable to any such prospective buyer unless he/she/it subsequently purchases the property and the prospective or actual buyer shall not be entitled to make the report available to any other third party).
2. The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
3. For the avoidance of doubt, the limitations of liability as set out in clause 9 shall apply to all users of the Deliverables.

CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY

1. All parties given access to Deliverables must be given access under conditions of confidentiality. They must agree to restrict access to employees or professional advisors with a need to know for the internal purposes of their own business only. They must ensure that the Deliverables are kept securely so as to avoid unauthorised access, use or copying.
2. No party given access to a Deliverable may modify it, merge it with any other Document, re-sell it, distribute it, create any product which is derived from the data contained in it, reverse engineer it, decompile it, remove any trade mark on it, or permit any other party to any of the foregoing.
3. The Customer may make up to five copies of a Deliverable, for its own internal use. Further copies may not be made without the Supplier’s prior written permission, which will be given subject to a charge per copy. If, however, the Customer is an authorised reseller (an agent) duly appointed by the Supplier to sell Services on behalf of the Supplier, then that authorised reseller may make the number of copies which the Supplier permits its authorised resellers to make.
4. The mapping contained in any Deliverable is protected by Crown Copyright and must not be used for any purpose not envisaged by these conditions.
5. The Customer shall keep in strict confidence all technical or commercial know-how, data, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
6. The Customer may disclose such information:
   1. to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
   2. as may be required by law, court order or any governmental or regulatory authority.
7. The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
8. The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
9. All Pre-existing Materials and other Documents supplied by the Supplier shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier.

LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

1. This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
   1. any breach of the Contract;
   2. any use made by the Customer of the Services, the Deliverables or any part of them; and
   3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3. Nothing in these Conditions limits or excludes the Customer’s statutory rights when dealing as a consumer, or the liability of the Supplier:
   1. for death or personal injury resulting from negligence; or
   2. for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.
4. Subject to condition 9.2 and condition 9.3
   1. the Supplier shall not be liable for:
      1. loss of profits; or
      2. loss of business; or
      3. depletion of goodwill and/or similar losses; or
      4. loss of anticipated savings; or
      5. loss of goods; or
      6. loss of contract; or
      7. loss of use; or
      8. loss of corruption of data or information; or
      9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
   2. the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to £500,000 for any event or series of connected events;
   3. the Supplier shall not be liable if the claim was not reported to it within 6 months of the issue becoming apparent, or, if earlier, 12 years of the date of the Service being performed or Deliverable being delivered;
   4. the Supplier shall not be liable for any loss damage cost or expense arising directly or indirectly by reason of a Deliverable being used for commercial property or for more than the one residential property for which it was ordered;
   5. the Deliverables will often mainly contain information which has been provided to the Supplier by third parties, the accuracy or completeness of which the Supplier cannot reasonably be expected to check, nor is it within the scope of many of the Services for the Supplier to check the information on the ground; therefore, the Supplier shall not be liable for the acts or omissions of third parties, including the suppliers of information, software etc. included within these Services or Deliverables, and shall not be liable for inaccuracies or omissions in third party data on which the Supplier has relied in providing these Services or Deliverables;
   6. where Ordnance Survey have undertaken a positional accuracy improvement programme which has resulted in discrepancies between (a) their updated mapping and (b) the positioning of features used in datasets contained in the Deliverables, the Supplier shall not be liable for any losses, costs damages or expenses arising directly or indirectly from such discrepancies;
   7. where the professional opinion of a third party, such as Wilbourn Associates Limited, is included in the Deliverables the relevant third party shall be solely responsible for its professional opinion, and any complaint about the opinion must be taken up directly with such third party;
   8. the Supplier shall not be liable for any use made of the Services or Deliverables which is not in accordance with the Contract;
   9. where any software is included in any Deliverable, the Supplier does not warrant that it will be error free or operate without interruption, or virus free, or that it will provide any particular functionalities other than any expressly set out in the Contract in writing and signed by the Supplier.

NO PHYSICAL INSPECTION

1. No physical inspection of the property reported on is carried out as part of any Services. The Supplier does not warrant that all land uses or features whether past or current will be identified in the Services. The Services do not include any information relating to the actual state or condition of any property, nor should they be used or taken to indicate or exclude actual fitness or unfitness of a property for any particular purpose, nor should they be relied upon for determining saleability or value of a property or used as a substitute for any physical investigation or inspection.
2. The Supplier recommends that the Customer inspects and takes other advice in relation to the property and does not rely exclusively on the Services.

DATA PROTECTION

The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.

TERMINATION

1. Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
   1. the other party fails to pay any amount due under the Contract on the due date for payment; or
   2. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
   3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
   4. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.1(c).
2. On termination of the Contract for any reason:
   1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
   2. the Customer shall return all of the Supplier’s Pre-existing Materials and Deliverables (and if the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them, and until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping); and
   3. the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
3. On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
   1. condition 7;
   2. condition 8;
   3. condition 9;
   4. condition 12; and
   5. condition 22.

0FORCE MAJEURE

The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, 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, storm or default of suppliers or subcontractors.

14. VARIATION

1. The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for Services, where the same have been agreed in the Contract. Additionally, the Supplier may, from time to time and without notice, change the services it offers, even if services have already been ordered, provided it tells the Customer, and the Supplier may refuse to supply any Customer any services.
2. The Supplier may, from time to time, change these Conditions provided it posts a new version on the Website. Customers should read these Conditions regularly.
3. Subject to conditions 14.1 and 14.2, no variation of the Contract shall be valid unless it is in writing and signed by the Supplier.

WAIVER

1. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

SEVERANCE

1. If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
2. If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, that provision or part shall be deemed severed, and the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

ENTIRE AGREEMENT

1. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
2. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
3. Nothing in this condition shall limit or exclude any liability for fraud.

ASSIGNMENT

1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
2. The Supplier may assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract.
3. Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.

NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

RIGHTS OF THIRD PARTIES

A person who is not a party to the Contract shall not have any rights under or in connection with it.

NOTICES

1. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party, or as otherwise specified by the relevant party by notice in writing to the other party.
2. Any notice shall be deemed to have been duly received if delivered personally, when left at the appropriate address and for the appropriate contact or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
3. This condition 21 shall not apply to the service of any proceedings or other documents in any legal action.

GOVERNING LAW AND JURISDICTION

1. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.

COMPLAINTS

1. Any complaint should, in the first instance, be in writing and addressed to the Head of Customer Support at Green ASAP Ltd’s registered office (as given in the definitions section above). As regards disputes, the parties agree that, prior to commencing any court proceedings, they will attempt to settle the dispute amicably under mediation by the Centre for Dispute Resolution. If the dispute has not been so resolved within 60 days of initiation of mediation, it may then be referred to the courts.