(1) Tactile Limited incorporated and registered in England and Wales with company number 08111417 whose registered office is at 1 Sunburst House, Elliott Road, Bournemouth, Dorset, BH11 8JP (Supplier).
(2) The organisation as set out in the branch name section of the account registration form (Customer).
If the Customer has subscribed for the Fixflo Plus or Fixflo Block Management repair management system the amendments at Schedule 2 shall apply.
In this Agreement the following words and expressions have the meaning set out below:
This agreement including the Terms and Conditions
If the Customer has subscribed for the Fixflo repair reporting system the fee at Schedule 1 Part 1 shall apply.
If the Customer has subscribed for the Fixflo Plus repair management system the fee at Schedule 1 Part 2 shall apply.
If the Customer has subscribed for the Fixflo Block Management repair management system the fee at Schedule 1 Part 3 shall apply.
If the Customer has subscribed for the Fixflo Direct repair reporting system the fee shall be that agreed between the parties in writing.
The date being 30 days from the date on which the Supplier or the Customer terminates this Agreement in accordance with the provisions of clause 1.1
The date of this Agreement
The individual entering into this Agreement on behalf of the Customer warrants, represents and undertakes that:
(a) the Customer has full capacity and authority to enter into and to perform this Agreement;
(b) this Agreement is entered into by a duly authorised representative of the Customer;
(c) there are no actions, suits or proceedings or regulatory investigations pending or, to that individual's knowledge, threatened against or affecting that party before any court or administrative body or arbitration tribunal that might affect the ability of the Customer to meet and carry out its obligations under this Agreement;
(d) this Agreement will constitute the Customer's legal, valid and binding obligations.
The Supplier has agreed to grant and the Customer has agreed to accept a non-exclusive, non-assignable, royalty free, limited right to use the Services (as defined in the Terms and Conditions) for the Customer's internal business operations for the Term (as defined in the Terms and Conditions) and on the terms and subject to the conditions set out in this Agreement including (without limitation) the payment of the Fee by the Customer.
The Customer may allow its Agents (as defined in the Terms and Conditions) to use the Services for this purpose and is responsible for its Agents' compliance with this Agreement.
In this Agreement, including this Schedule, the following words and expressions have the meanings set out below:
A person or group of people who acts or act on behalf of a Customer in respect of Reported Issues and are set up by the Customer to receive emails from the Communication Platform with each separate email address to which emails are sent being deemed to be one Agent.
An online portal that allows the Customer (amongst others) to add its logo to the Tenant Portal.
An online system that allows the Customer (or in the case of Fixflo Direct only a landlord or property manager) to receive emailed notifications of Reported Issues.
The meaning as set out in Section 1(1) of the Data Protection Act 1998.
A non-emergency issue at a Property that requires repair work to be carried out in order to remedy it.
The meaning set out in Section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under this Agreement.
A residential property that from time to time is being managed by the Customer on behalf of itself or a third party provided that: (a) in the case of a house in multiple occupation each part of the property that is subject to a separate tenancy agreement is deemed to be a separate property; and (b) in the case of Fixflo Block Management each part of a block or estate that is subject to a separate residential leasehold interest is deemed to be a separate property.
An Issue that has been entered into the System.
The Tenant Portal, the Agent Portal and the Communication Platform.
The software products owned or distributed by the Supplier to which the Supplier grants the Customer access as part of the Services, including program documentation (if any), and any program updates provided as part of the Services.
The electronic system for the provision of the Services.
A document or other agreement pursuant to which a Tenant occupies a Property.
A person who (from time to time) rents a Property under a Tenancy and in the case of Fixflo Block Management includes leaseholders.
An online portal that allows Tenants (amongst others) to enter Issues into the System.
The period commencing on (and including) the Service Start Date and (subject to the provisions of clause 1.1) expiring on the Service Expiry Date.
Value added tax as defined in the Value Added Tax Act 1994 and any tax of a similar nature substituted for, or levied in addition to, such value added tax.
A day (other than a Saturday or a Sunday) on which banks are generally open for business in the City of London.
1. The headings in this Agreement do not affect its interpretation.
2. Unless the context otherwise requires:
(a) references to the Supplier and the Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted;
(c) references to one gender includes a reference to the other gender;
(d) references to "including" or "includes" shall be deemed to have the words "without limitation" inserted after them; and
(e) references to a clause are references to the numbered paragraphs contained in these Terms and Conditions.
3. Words in the singular include the plural
1. Term of Agreement
1.1 This Agreement shall run until the date (if any) which is 30 days from and including the date on which either party provides notice in writing to the other to terminate this Agreement.
2. Payment of Fee
2.1 The Customer shall pay the Fee to the Supplier monthly in advance during the Term.
2.2 The Fee shall be paid by the Customer in full and without deduction or set-off save for any set-off required by law.
3.1 Subject to the provisions of clauses 3.2 to 3.5 (inclusive) and to the Customer fully complying with its obligations under this Agreement the Supplier shall use all reasonable endeavours to make the System available to the Customer throughout the Term.
3.2 The Supplier shall not be responsible to the Customer for any loss suffered by the Customer in the event that the System is unavailable to the Customer at any time or times during the Term due to any reason which is beyond the reasonable control of the Supplier including, without limitation:
(a) defects of the Customer's equipment;
(b) an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the Supplier; and
(c) non-supply by any third party upon whom the System, the Customer or the Supplier relies.
3.3 The Supplier is only responsible for making the System available to the Customer on the terms of this Agreement and is not responsible for the participation of the Customer or any other party in the System.
3.4 In the event that the Customer fails to pay the Fee in accordance with the terms of this Agreement the Supplier may suspend any one or more of the following functions of the System: (i) the Customer's access to the Agent Portal; (ii) the Tenants' access to the Tenant's Portal; and/or the functioning of the Communication Platform and in the event of any such suspension the Customer indemnifies the Supplier for any loss, claims, actions or proceedings that may be brought against the Supplier (whether by the Customer or by any other party) arising by reason of such suspension. Any such suspension does not excuse the Customer from its obligation to pay the Fee pursuant to this Agreement.
3.5 The Customer acknowledges that the System may be temporarily unavailable from time to time due to work that is carried out by the Supplier (or those authorised by the Supplier) to maintain and/or to upgrade the System. Except in the case of emergency including (without limitation) a material failure of the System or any functionality of the System the Supplier shall use its reasonable endeavours to ensure that such works do not render the System unavailable to the Customer during the hours of 9am to 6pm (inclusive) on any Working Day.
3.6 The Customer acknowledges that the scope of the Services may be amended from time to time with or without notice.
4. Customer Responsibilities
4.1 As soon as is reasonably practicable after the Service Start Date the Customer shall notify the Tenants of the availability of the Tenant Portal.
4.2 The Customer shall use all reasonable endeavours to keep the details on the System accurate and current from time to time including (without limitation) promptly:
(a) notifying Tenants not to report Issues through the Tenant Portal upon the expiry (or sooner determination) of their Tenancy; and
(b) informing Tenants of the availability of the Tenant Portal upon the commencement of a Tenancy.
4.3 If the Customer has the ability to reset the password of Tenants the Customer shall promptly respond to a request from a Tenant for such information to be reset.
4.4 The Customer shall comply with all applicable requirements relating to data protection including (without limitation) the Data Protection Act 1988 and the Customer shall (to the extent possible) also promptly delete a Tenant's account from the System upon request by that Tenant.
4.5 The Customer must not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, the Supplier's programs or materials available to any third party unless expressly permitted under the terms of this Agreement.
4.6 Subject only to limitations imposed by law the Supplier retains the right to view all data held in the System.
5. Data Retrieval
5.1 At the Customer's request (which must be received on or before the expiry or sooner determination of this Agreement) the Supplier may permit the Customer to access the Agent Portal for a period of 30 days after the termination or expiry of this Agreement for the sole purpose of reviewing (and only to the extent necessary to retrieve) a file of the Customer's data in the System. The Customer acknowledges and agrees that the Supplier has no obligation to retain the Customer's data nor to provide a copy of that data to the Customer or to any other party and that the Customer's data may be deleted after 30 days following the expiry or sooner determination of this Agreement.
6. Liability and Warranties
6.1 The Supplier shall use a commercially reasonable level of skill and care to provide the Services.
6.2 Except as expressly set out in this Agreement the Supplier does not make any warranty or representation to the Customer about the Services and (without limitation) the Supplier does not provide any representation or warranty regarding any of the following: (1) the storage of data; (2) the scope of the Services; (3) the function reliability or availability of the Services; (4) that the Services will be uninterrupted, timely, secure or error-free; (5) that the Services are appropriate for the Customer's needs; (6) that errors in the Services or the System will be corrected.
6.3 The Customer acknowledges and agrees that subject to the Supplier complying with its obligations as set out in clause 6.1:
(a) the Supplier provides the Service "as is" and "as available"; and
(b) to the extent permitted by law all warranties whether express or implied (including those that are implied by law) are excluded; and
(c) to the extent permitted by law the Supplier is not liable for any lost profits, revenues or data, financial losses or indirect, special, consequential, exemplary or punitive damages suffered by the Customer; and
(d) any material that is downloaded or otherwise obtained through the Customer's use of the System is done so at the Customer's own discretion and risk and the Customer is solely responsible for any damage to the Customer's computer or other device or loss of data that results from the download of any such material.
6.4 Notwithstanding any provision to the contrary (save in each case as set out at clause 6.5) the liability of the Supplier to the Customer shall be limited to the aggregate amount of the Fee paid by the Customer in the then current term of this Agreement and the Supplier shall not be liable to the Customer for any and all of the following:
(a) indirect loss of the Customer;
(b) consequential loss of the Customer;
(c) loss of profit of the Customer;
(d) loss of business of the Customer; and
(e) loss of revenue of the Customer.
6.5 Nothing in this Agreement shall be construed as attempting to limit or exclude the liability of any party in respect of injury to, or the death of, any person caused by any wilful or negligent act or omission of any party, its officers, employees, agents or subcontractors, or for fraud or fraudulent misrepresentation or the deliberate default or wilful misconduct of that party, its employees or agents or subcontractors.
6.6 Except for actions for nonpayment or breach of the Supplier's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
6.7 The Customer warrants and undertakes that its use of the System and the use by those granted access to the System by the Customer:
(a) will not infringe any third party's intellectual property rights;
(b) will not violate any applicable law, statute or subordinate legislation; and
(c) will not introduce onto the System any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information.
The Customer indemnifies the Supplier for any losses it may incur (including legal costs and expenses) as a result of a breach by the Customer of this clause 6.7.
6.8 The Customer acknowledges that as between the Customer and the Supplier, the internet subdomain ("Subdomain") on which (amongst others) the Agent Portal and the Tenant Portal are hosted remains the absolute property of the Supplier and the Customer has no right to assign, sublet or to otherwise transfer the Subdomain. The Customer indemnifies the Supplier for any losses that it may incur (including legal costs and expenses) as a result of a breach by the Customer of this clause 6.8.
7. Law Prevails
7.1 Nothing in these Terms is intended to exclude or to limit any condition, warranty, right or liability that may not be lawfully excluded or limited. Accordingly only those limitations that are lawful in England and Wales will apply and the Supplier's liability is limited to the maximum extent permitted by law.
8. Third Parties
8.1 From time to time the Supplier may engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to the Customer, and the Customer agrees that such third party involvement is acceptable. Without limitation the Customer acknowledges and agrees that any translation of the Service is carried out by third party software and that the Supplier to the extent permitted by law has no liability in relation to the accuracy or completeness of any translated information or documentation provided by the System.
8.2 The parties do not intend that any of the provisions of this Agreement shall be enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
8.3 The Supplier may from time to time include as part of the Services and/or the Software computer software that is supplied by third parties which is utilised by permission of the respective licensors and/or copyright holders on the terms provided by such parties. The Supplier expressly disclaims any warranty or other assurance to the Customer regarding such third party software.
8.4 Except as required by law or pursuant to any regulation or as requested or required by any competent authority the Supplier will not make details of the Property or Landlords available to any third party without the prior written consent of the Customer.
8.5 If the Customer uses the System as part of software provided by a third party the Supplier expressly disclaims any warranty or other assurance to the Customer regarding such third party software.
8.6 If the System is integrated into any other software system ("Other System") owned or used by the Customer by the Supplier, the Supplier shall use its reasonable endeavours to ensure that the System works with the Other System but the Supplier is neither responsible for:
(i) the functioning or availability of the Other System; nor
(ii) any effect of the integration on the Customer's use of the Other System including (without limitation) any data held on the Other System.
9. Data Transmission
9.1 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Act 1998 the Customer is the Data Controller and the Supplier is the data processor of any Personal Data.
9.2 The Supplier shall process the Personal Data in accordance with the Customer's instructions from time to time and shall not process the Personal Data for any other purpose save as explicitly set out in this Agreement.
9.3 The Supplier shall take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data.
9.4 The Service is available in England and Wales but (subject in all cases to the provisions of clause 9.5) the Supplier's data processing operations may take place on servers that are hosted in various locations around the world. The Customer acknowledges that:
(a) in using the Service, the Supplier may be sending electronic communications (including the Customer's account information and data), through computer networks owned by the Supplier and/or third parties located in England and Wales and/or other countries; and
(b) as a result of such communication, the Customer's use of the Service will likely result in international data transmissions, and the Customer's use of the Service shall constitute the Customer's consent to permit such transmissions.
9.5 Personal Data for Customers within the European Economic Area shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.
10. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties to this Agreement each irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising in any way in relation to this Agreement.
11. Entire Agreement
(a) This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements (written or oral) between the parties in relation to its subject-matter.
(b) Each party acknowledges that in entering into this Agreement 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 as expressly set out in this Agreement.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
12 Intellectual Property
12.1The Customer acknowledges and agrees that all intellectual property rights inthe Services and the Software and anything developed and delivered under this Agreement belong absolutely to the Supplier.
12.2The Customer agrees not to modify, copy or create derivative works of, decompile or otherwise attempt to reverse engineer or to extract source code from the Services or Software or any part of the Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), nor to access or use the Services inorder to build or support, and/or assist a third party in building or supporting, products or services competitive to the Supplier unless (in each case) laws prohibit these restrictions or unless the Customer has the Supplier's prior written consent to do so. For the purposes of this clause 12.2 in order for written consent of the Supplier to be valid it must be provided by a director of the Supplier by fax or letter to the Customer. The Customer indemnifies the Supplier for all costs, damages and losses arising directly or indirectly from the Customer's breach of this clause 12.2.
The Fees payable by the Customer under this Agreement are expressed to be exclusive of VAT and the Customer shall simultaneously pay any VAT chargeable in respect of all taxable supplies to it under this Agreement.
14. Assignment etc.
14.1 The Supplier may at any time assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Customer.
14.2 The Customer may not assign this Agreement or give or transfer the services or an interest in them to another individual or entity and if the Customer grants a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or the System.
15.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
15.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
In order for the System to be used by the Customer, the Supplier has pre-loaded the System with various documents and email templates which can be amended by the Customer in the Agency Portal. The Customer acknowledges that:
(a) those documents and templates were provided as a starting point only;
(b) the Customer has had the opportunity to accept, delete and/or modify those documents and templates;
(c) the Supplier has not represented that those documents and templates are complete or accurate or meet the Customer's needs; and
(d) no warranty has been given by the Supplier in relation to those documents and templates.
18. Limitations on Use
18.1 Except as expressly provided for in this Agreement the Customer shall not copy,reproduce, distribute, republish, download, display, post or transmit any part of the Services or Software in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.
18.2 Pursuant to this Agreement the Services are only being made available to the Customer and the Agents that are authorised by the Customer. The Customer shall make every reasonable effort to prevent unauthorised third parties from accessing the Services.
19. Customer Logo and Name
19.1 The Customer hereby grants to the Supplier a non-exclusive licence to use the Customer's logo and name on its websites and general marketing materials for marketing purposes for the duration of the Term and for 1 month after the expiry of the Term.
19.2 The Customer consents to the Supplier using its Personal Data (being only the Agent's email address) to contact the Customer by electronic means (email only) with information about goods and services provided by the Supplier or any affliate from time to time of the Supplier.
20.1 This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation ofthe party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.
21. Terms Apply
21.1 This Agreement shall apply save in the case (and to the extent) that the terms of this Agreement are disapplied or modified by a written agreement that has been signed by at least one director of each of the Customer and the Supplier.
22. Further Assurance
22.1 Each party shall at its own cost execute such further documents and do any and all such further things as may be necessary to implement and carry out the intent of this Agreement.
Part 1: Fixflo Fee
?0.35 per Property per calendar month subject to a minimum charge of ?40 (exclusive of VAT) per calendar month.
Part 2: Fixflo Plus Fee
?0.55 per Property per calendar month subject to a minimum charge of ?75 (exclusive of VAT) per calendar month.
Part 3: Fixflo Block Management Fee
?0.55 per Property per calendar month subject to a minimum charge of ?75 (exclusive of VAT) per calendar month.
1. Definition of "Communication Platform"
Deleted and replaced with:
An online system that allows the Customer to receive emailed notifications of Reported Issues and that allows the Customer to communicate with: (i) prospective and instructed Contractors; and/or (ii) Landlords, in each case in relation to Reported Issues that are from time to time unresolved.
2. New definition of "Contractors" added:
People or entities that the Supplier and/or the Customer from time to time register as contractors in the System.
3. New definition of "Landlords" added:
People or entities that the Customer from time to time indicates to be a landlord in the System.