1. Definitions and Interpretation
'Service' means the Service as herein defined.
‘Charges’ means the most recent published price list.
‘Database’ has the same meaning as defined under the Copyright, Designs and Patents Act 1988.
‘Intellectual Property Rights’ means all text, content, photographs, video, audio and graphics of this Service is protected by copyrights, trademarks, service marks, international treaties and/or other proprietary rights and laws of the UK and other countries.
2. The Service
The Service provided under this Agreement is that which SwiftQuest Associates Ltd accepts search requests from You, providing the search request is itemised within the Charges, pursuant to instructions given by You. You hereby agree to abide by the terms and conditions of this Agreement whether You contract with SwiftQuest Associates Ltd as a principal or as an agent for a principal (whether the principal is disclosed or not at this date).
3. Term
This Agreement shall be effective from this date and shall remain in force and effect unless and until terminated in accordance with the provisions of this Agreement.
4. Payment
4.1 You hereby agree to make payment for the Service in accordance with the Charges of this Agreement.
4.2 Any failure to make payment within 30 days from when any undisputed payment becomes due will entitle SwiftQuest Associates Ltd to terminate the supply of the Service and this Agreement forthwith and without any notice to You.
4.3 All delays in payment shall attract interest at the rate of 4% above the Barclays Bank PLC base rate, which shall be compounded monthly.
4.4 Where You claim a genuine dispute over an invoice, the You shall immediately pay all amounts not in dispute as it becomes due. As to the disputed amount the You shall promptly provide SwiftQuest Associates Ltd with detailed information of the disputed part of the invoice, which dispute shall be resolved by good faith negotiations between the parties.
4.5 Notwithstanding Clause 4.4 hereof, no dispute shall be regarded as genuine, where the undisputed amount in the invoice is not paid when it becomes due.
5. Supply of Service
5.1 SwiftQuest Associates Ltd shall use reasonable care and skill to ensure that the Service is supplied to You on the basis that You provide all necessary and timely instructions, authorities and information (including location plans) to perform the Service.
5.2 The provision of search reports and services by SwiftQuest Associates Ltd will comply with the Search Code.
5.3 You should notify any defect or inaccuracy in the Service provided by SwiftQuest Associates Ltd to SwiftQuest Associates Ltd within one month of discovery by You. In the event that such notice is not given, You shall be deemed to have been satisfied with the Service.
6. Charges
All fees under this Agreement shall be applied in accordance with the Charges of this agreement. SwiftQuest Associates Ltd shall be entitled to alter its charging rates from time to time and contracts with SwiftQuest Associates Ltd shall be charged to You at the prevailing rate. SwiftQuest Associates Ltd will give You 28 days prior notice of any such change.
7. Responsibility for Use
You are responsible for all use of the Service. If the Service is provided on line You agree to notify SwiftQuest Associates Ltd of any breach of security or unauthorised use the You becomes aware of. You accept that SwiftQuest Associates Ltd is not liable for losses arising in consequence of any breach or unauthorised use however it arises.
8. Data Protection
Where applicable, SwiftQuest Associates Ltd warrants that it will fully comply with the Act, but SwiftQuest Associates Ltd shall have no liability for whatever use the You make of the Data or Personal Data. You hereby covenant that it will comply with the Act in respect of all such Data or Personal Data. You shall indemnify SwiftQuest Associates Ltd for any claim made or loss suffered by SwiftQuest Associates Ltd as a result of You using the Personal Data. Upon a written request from SwiftQuest Associates Ltd You shall cease and desist from or change its use of the Personal Data if such usage breaches the provisions of the Act or exposes or potentially exposes SwiftQuest Associates Ltd to any kind of claim, action or complaint by a third party.
9. Disclaimer and Limitation of Liability
9.1 SwiftQuest Associates Ltd will use all reasonable skill and care in acquiring data and information to be provided to You under this Agreement, but SwiftQuest Associates Ltd shall not be deemed to warrant the accuracy of the data and information provided to the SwiftQuest Associates Ltd where such information has either been provided verbally and is not capable of independent verification by a third party, or for documentation provided to SwiftQuest Associates Ltd by a data provider who does not allow SwiftQuest Associates Ltd access to inspect its registers. SwiftQuest Associates Ltd provides Search Warranty Insurance with every Regulated Personal Search which covers errors and omissions in Local Authority data and records.
9.2 Where applicable, SwiftQuest Associates Ltd disclaims all liability for any losses suffered by You from any miscalculations and errors which relate to such analytical tools and methods of analysis apart from any miscalculation or errors resulting from gross negligence or wilful misconduct on the part of SwiftQuest Associates Ltd.
9.3 You agree that its use of the Service is at its sole risk and acknowledges that the Service is provided "as is" and "as available" and that SwiftQuest Associates Ltd makes no warranty of any kind apart from that noted in clause 9.4 below, express or implied, as to the items, including, but not limited to, merchantability, non-infringement, title or fitness for a particular purpose or use. The You agrees that SwiftQuest Associates Ltd and its agents shall have no responsibility or liability for: (i) any injury or damages, whether caused by the negligence of SwiftQuest Associates Ltd, its employees, subcontractors, agents, Suppliers or otherwise apart from that resulting from gross negligence or wilful misconduct arising in connection with the Data and Service and shall not be liable for any lost profits, losses, punitive, incidental or consequential damages or any claim against SwiftQuest Associates Ltd by any other party; or (ii) any fault, inaccuracy, omission, delay or any other failure in the Service, the content of other Web sites, Services, goods or advertisements that may be linked to the Service.
9.4 SwiftQuest Associates Ltd is therefore not responsible for the availability, content or accuracy of other Web sites, services or goods that may be linked to, or advertised on, the Service. SwiftQuest Associates Ltd does not: (a) accept any liability for any loss arising from the use made of by others (including the You) of the Service, (b) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Service; (c) guarantee the accuracy, completeness, usefulness or adequacy of any other Web sites, services, goods or advertisements that may be linked to the Service; or (d) make any endorsement, express or implied, of any other Web sites, services, goods or advertisements that may be linked to the Service. SwiftQuest Associates Ltd is also not responsible for the reliability or continued availability of the telephone lines, communications media and equipment You may use to access the Service. You understand that SwiftQuest Associates Ltd and/or third-party contributors to the Service may choose at any time to inhibit or prohibit their content from being accessed under the Service.
9.5 SwiftQuest Associates Ltd warrants and covenants that it has the power and authority including ownership and proprietary rights to all of the Intellectual Proprietary Rights (IPR) produced in the Data and Services by SwiftQuest Associates Ltd. SwiftQuest Associates Ltd shall indemnify and hold You harmless against any claims arising against You in respect of any alleged breach of IPR by SwiftQuest Associates Ltd.
10. Limitation of Liability
Under no circumstances, including but not limited to negligence, shall SwiftQuest Associates Ltd, its suppliers and its third-party agents be liable to the You for direct, indirect, incidental, consequential, special, punitive or exemplary damages even if SwiftQuest Associates Ltd has been advised specifically of the possibility of such damages, arising from use of or inability to use the Service or any links or items on the Service or any provision of the Data, such as, but not limited to, loss of revenue or anticipated profits or lost business. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages. In no event shall SwiftQuest Associates Ltd's total liability to You for all damages, losses and causes of action (whether in contract or tort, including but not limited to, negligence) exceed £3,000,000.
11. Representations and Warranties
You warrants and covenants that:
1. it has the power and authority to enter into this agreement;
2. it shall not use any rights granted hereunder for any unlawful purpose;
3. it shall use the Service only as set forth in this Agreement;
4. any instruction given to SwiftQuest Associates Ltd will not cause SwiftQuest Associates Ltd to infringe the laws of any country;
5. any information given to SwiftQuest Associates Ltd by You is accurate; and
6. the copyright and other IPR in all written material of whatever nature prepare by SwiftQuest Associates Ltd on behalf of You shall vest in SwiftQuest Associates Ltd.
12. Termination & Cancellation
12.1 You can terminate and cancel this Agreement by submitting a written cancellation notice of Your initial instructions. Any cancellation received prior to Your instructions being undertaken may incur a cancellation fee. If an instruction has already commenced then the full fee will apply.
12.2 Without prejudice to Clause 12.1 SwiftQuest Associates Ltd may terminate this Agreement and supply of the Service if You is in any breach of this Agreement
13. Independent Dispute Resolution
If You make a complaint and we are unable to resolve it to your satisfaction you may refer the complaint to The Property Ombudsman scheme (website: www.tpos.uk email: admin@tpos.co.uk). We will cooperate fully with the Ombudsman during an investigation and comply with his final decision.
14. Intellectual Property Rights
All Intellectual Property Rights in the Data and Service subsists in SwiftQuest Associates Ltd and shall remain the property of SwiftQuest Associates Ltd absolutely, whether as principal owners or as agents for third parties.
15. Copyright and Trademarks
The Data in the Service is SwiftQuest Associates Ltd’s copyright and may not be copied, distributed, published, licensed or reproduced in any way. You are permitted to print or download extracts from the Data on the Service for the Your business purposes in the course of their employment with the You and no one else. However, the You is not permitted to circulate, distribute, copy or reproduce in whole or in part for any purpose (except for business purposes in the course of their employment with the You and no one else) including internal or external distribution within an organisation (its clients, subsidiaries, associated companies or global partners) in which a Licence has been granted for the benefit of individual Users.
16. Assignment
This Agreement is personal to SwiftQuest Associates Ltd and You and You shall not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of SwiftQuest Associates Ltd (which consent shall not be unreasonably withheld). SwiftQuest Associates Ltd reserves the right to assign or transfer its rights or obligations under this Agreement to another entity within its group.
17. Confidentiality
Each party hereby agrees to treat the terms, but not the existence, of this Agreement as confidential and agrees not to disclose the contents hereof to any third party, and as well any information or documentation obtained in respect of the other during the course of this agreement.
18. Database Rights
SwiftQuest Associates Ltd is the owner of all rights in the Data and Database within the Service as defined under the Copyright, Design and Patents Act 1988. You may not copy, distribute, license, publish, reproduce or disclose to any third party or extract from the Data except as permitted under this Agreement
19. Force Majeure
Neither party shall be liable for any delay or failure to perform its obligations caused by any circumstances beyond its reasonable control including but not limited to industrial disputes or interruption to any telecommunication satellite broadcast services used to carry the Service to You.
20. Miscellaneous
20.1 You accept that SwiftQuest Associates Ltd has the right to change the content or technical specifications of any aspect of the Service at any time at SwiftQuest Associates Ltd's sole discretion. You further accept that such changes may result in the You being unable to access the Service, in which circumstances the Your rights are limited to those provided for under Clause 10 hereof. The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
20.2 Notwithstanding clause 24.1, You are entitled to deem this Agreement as terminated if any change to the content of the Service amounts to a material change.
21. Notices
Any notice to be served hereunder shall be in writing and sent by recorded delivery to the address of the recipient as set out in this Agreement.
22. Headings
The section titles in this Agreement are used solely for the convenience of the parties and have no legal or contractual significance.
23. Survival of Provisions
Notwithstanding the termination of this Agreement for whatever reason the provisions in this Agreement relating to Intellectual Property Rights, Liability and Warranty and Confidentiality shall continue in full force and effect.
24. Severability
If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force
25. Entire Agreement
This Agreement contains the entire terms and conditions agreed between You and SwiftQuest Associates Ltd applicable to the Your use of this Service.
26. Governing Law
This Agreement shall be governed by and construed in accordance with English law without giving effect to any principles of conflicts of law and all parties agree to submit all disputes arising in respect of this Agreement to the exclusive jurisdiction of the courts of England.