LICENCE, SUPPORT AND SERVICES AGREEMENT

PARTIES:

1. "CLIENT" : whose trading name and principle place of business is set out on the Order and in the Account Information Form completed by the client in “MyAccount”.

   
   

2. "PROVIDER" : PROPERTY SOFTWARE HOLDINGS LIMITED and associated subsidiaries, a company incorporated in England and Wales (company number 08800101) whose registered office is at, The Cooperage, 5 Copper Row, London, SE1 2LH

1. The Provider is the owner of lettings and property management software and provides software support and a number of other services in connection with the Software (as defined below).

2. The Client wishes to licence the Software and to receive the Services (as defined below) and the Provider is willing to licence the Software and provide the Services in accordance with the terms of this Agreement.

OPERATIVE PROVISIONS:

1. DEFINITIONS

   
   

   1. In this Agreement, unless the context otherwise requires, the following words and phrases shall have the following meanings: “Business Days” means Monday to Friday, excluding any public and bank holidays in England;

      “Current Release” means the most recent Release that is offered by the Provider to the Client;

      
      

      “Datafeed Fees” means the fees to be paid by the Client to the Provider for the Datafeed Service as set out on the Order Form or as otherwise notified by the Provider to the Client;

      “Datafeed Service” means the datafeed service more particularly described in clause [6], to be provided by the Provider to the Client pursuant to an Order Form;

      “Documentation” means any and all operating manuals, user instructions, technical literature, online help and all other documentation and materials supplied to the Client by the Provider for aiding the use by the Client of the Software;

      “Effective Date” means the date at the head of this Agreement;

      
      

      “Enhanced Support Service” means the Support Service to be provided by the Provider to the Client as more particularly

      
      

      described in Appendix 1;

      
      

      “Fees” means the Licence Fees, Datafeed Fees and SMS Fees;

      
      

      “Files” means electronic files containing property information made available to the Provider, as specified in Schedule 2;

      “Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or

      
      

      unregistered (including any application for registration), including without limitation all copyright, trade marks, service marks, patents, design rights, database rights, trade secrets and/or know-how;

      “Licence” means the licence of Software granted by the Provider to the Client in accordance with clause 2;

      
      

      “Licence Fees” means the licence fees to be paid by the Client to the Provider for the Licence as set out on the Order Form or as otherwise notified by the Provider to the Client;

      “Minimum Specification” means the minimum hardware specification required by the Client as set out on the website located

      
      

      at http://www.cfp-software.co.uk or as otherwise notified by the Provider to the Client;

      
      

      “New Release” means any new Version Release or Major Product Release issued by the Provider to the Client [which updates, improves, repairs functions and features in the product];

      “Order Form” means any completed order form signed by you and us or other documents (including online documents) for placing orders entered into between you and us from time to time, setting out details of the Services and Associated Services (where relevant);

      “Portals” means the property websites itemised on the Provider’s website available for the Client to request property details to be made available for in Files;

      “Provider’s Website” means any website of the Provider and/or any of its subsidiary companies;

      “Release” means a version of the Software (defined by reference to variations in version number, e.g. v

      
      

      3.23.5. 3.23.6 etc);

      
      

      “Services” means the Support Services, the SMS Text Messenger Service and/or the Datafeed Service;

      
      

      “SMS Fees” means the fees to be paid by the Client to the Provider for the SMS Service as set out on the Order Form or as otherwise notified by the Provider to the Client;

      “SMS Service” means the SMS service, more particularly described in clause [5], to be provided by the Provider to the Client pursuant to an Order Form;

      “Software” means the software licensed by the Provider to the Client as set out in [Schedule 1] including any New Release;

      “Support Fees” means the support fees to be paid by the Client to the Provider for the Support Services, as set out on the Order Form or as otherwise notified by the Provider to the Client;

      “Support Services” means the support service to be provided by the Provider to the Client as more particularly described in the Support Services Agreement;

      “Support Services Agreement” means the Support Services Agreement attached at Appendix 1.

      
      

2. LICENCE

   
   

   1. In consideration of the payment of the Licence Fees by the Client to the Provider, the Provider grants the Client a personal, non-exclusive, non-transferable and revocable licence to:

      1. use the Software in accordance with clause 2.2 below for the sole purpose of processing its own data for the Client’s own internal business purposes only; and

         
         

      2. to use the Documentation for the sole purpose of facilitating use of the Software.

         
         

   2. For the purposes of clause 2.1 above, “use of the Software” means loading the Software into temporary memory or permanent storage on the relevant computer. However, installation on a network server for the sole purpose of internal distribution shall not constitute “use” for which a separate licence is required, provided that the Client has a separate licence for each computer (and the authorised number of users per the licence) to which the Software is distributed.

   3. The Client may make a copy of the Software for back up purposes only and provided it is necessary for the purposes set out in clause 2.1.

      
      

   4. The Client is not permitted to:

      
      

      1. use, copy, assign, lease, rent, charge and/or transfer the Software, except as expressly permitted by this Agreement;

         
         

      2. reverse engineer, disassemble or decompile the whole or any part of the Software, save solely for the purposes expressly permitted by law;

         
         

      3. remove or alter any copyright or other proprietary notice from the Software and/or Documentation;

         
         

      4. reproduce the Documentation or any part of them by any means or in any form;

         
         

      5. translate, adapt, arrange and/or alter the Software and/or Documentation or any parts of them in any way for any purpose including, without limitation, for error correction;

      6. modify or integrate the whole of or any part of the Software into software not provided by the Provider without obtaining the Provider’s prior written consent;

         
         

      7. use the Software to provide a data processing service to any third party.

         
         

3. INTELLECTUAL PROPERTY RIGHTS

   
   

   1. The Client acknowledges that all Intellectual Property Rights in the Software and Documentation belong to the Provider and the Client has no rights in or to the Software and/or Documentation, other than the right to use them in accordance with this Agreement.

   2. The Client shall notify the Provider immediately if it becomes aware of any unauthorised use of the whole or any part of the Software and/or Documentation by any person.

      
      

   3. The Client acknowledges and agrees that nothing in this Agreement confers on the Client any licence or right to use any trade marks, names or logos of the Provider and/or the Software except as expressly set out in this Agreement and that all Intellectual Property Rights in such trade marks, names and logos together with all goodwill arising out of or in connection with these, belong to the Provider and/or its licensors (as appropriate).

   4. The Provider warrants that, to the best of the Provider’s knowledge, the Software does not infringe the UK Intellectual Property Rights of any third party.

      
      

   5. The Provider shall defend at its own expense any claim brought against the Client alleging that use of the Software in accordance with this Agreement infringes the UK Intellectual Property Rights of a third party.

   6. In the event that any legal proceedings are brought against the Client claiming any infringement of third party UK Intellectual Property Rights based on the Client’s use of the Software in accordance with this Agreement, the Provider shall indemnify the Client against any such claim, provided that:

      1. the Provider is notified promptly in writing of any such claim;

         
         

      2. the Provider is given immediate and sole control of such claim;

         
         

      3. the Client does not make any admission as to liability and/or prejudice the Provider’s defence of such claim;

         
         

      4. the Client gives the Provider all reasonable assistance with such claim (at the cost of the Provider); and

         
         

      5. the Client has complied with all the terms of this Agreement.

         
         

   7. The indemnity given in clause 3.6 above shall not apply where the claim arises as a result of or is based upon:

      
      

      1. the use of any Release, other than the Current Release [or immediately preceding Release], if such claim would have been avoided by the use of such mentioned Release;

      2. the combination, operation or use of the Software with software or hardware not supplied or approved by the Provider, if such claim would have been avoided in the absence of such combination, operation or use;

      3. the use of the Software other than in accordance with the terms of this Agreement.

         
         

   8. In the event of any claim under clause 3.5 above, the Provider shall be entitled at its own expense and option either to:

      
      

      1. procure the right for the Client to continue using the Software that is the subject of such claim;

         
         

      2. make such alterations, modifications or adjustments to the Software so that it becomes non-infringing without incurring a material diminution in performance or function; or

      3. replace the Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

         
         

   9. If the remedies set out in clause 3.8 above are not available, the Customer shall cease using and return the Software. Upon receipt of the Software, the Provider shall refund to the Client the Licence Fees paid by the Client, less reasonable amortisation for use.

   10. This clause 3 states the entire liability of the Provider to the Client in respect of the infringement of the Intellectual Property Rights of any third party.

4. WARRANTIES

   
   

   1. The Provider warrants that the Current Release will conform in all material respects with the Documentation for a period of 90 days from the date of this Agreement (“Warranty Period”). It is the sole responsibility of the client to remain on the current latest version release.

   2. If, within the Warranty Period, the Client notifies the Provider in writing of any defect or fault in the [Current Release], in consequence of which it fails to conform in all material respects with the Documentation, the Provider’s sole liability and the Client’s exclusive remedy shall be, at the Provider’s option, either:

      1. refund of the Licence Fees paid; or

         
         

      2. repair of the Software; or

         
         

      3. replacement of the Software.

         
         

         Any replacement of the Software will be warranted for the remainder of the original Warranty Period or 30 days, whichever is the longer.

         
         

   3. The Provider shall have no liability to the Client if any default or error in the Software arises as a result of:

      
      

      1. a defect or deficiency in, or a failure of, the equipment upon which the Software is operated; or the technical environment the Software is being run within, or the minimum specification recommended is not being adhered to.

      2. any unauthorised amendment or alteration made by the Client and/or a third party not expressly authorised by the Provider to the Software;

         
         

      3. use of the Software with other software or equipment with which it is incompatible; and/or

         
         

      4. operator error.

         
         

   4. The Client acknowledges that the Software has not been prepared to meet the Client’s individual requirements and it is the Client’s sole responsibility to ensure that the Software meets its requirements.

   5. The Provider does not warrant that use of the Software will be uninterrupted or error free.

      
      

   6. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law, custom, trade usage, course of dealing or otherwise (including, without limitation, any implied conditions as to quality or fitness) are excluded to the fullest extent permitted by law.

5. SMS SERVICE

   
   

   1. Where the Client elects to take the SMS Service and pays the SMS Fees, the Provider shall provide the Client with access to the Property Software Group SMS Text Messenger Service from within certain group software products.

   2. Where technical and operational conditions allow, access to the SMS Server shall be provided no later than two Business Days after payment of the relevant SMS Fees

      
      

   3. The Provider:

      
      

      1. will provide instructions on how to access the SMS Service. These instructions, locations of servers and methods of accessing SMS servers may be liable to change at any time. The Provider will advise the Client in advance of such changes;

      2. will do its best to ensure successful delivery of all messages. Successful delivery depends on additional parties such as ISP's, telcos and network operators, hence the provider cannot guarantee delivery;

      3. shall not be liable for the content of the text messages;

         
         

      4. will use its reasonable endeavours to ensure uptime of the SMS Service, however, faults cannot be repaired if circumstances beyond the Provider’s control prevent their repair;

      5. reserves the right to carry out maintenance and technical alterations to its equipment which may affect availability of the SMS Service; and

         
         

      6. reserves the right to suspend or stop the provision of the SMS Service at its discretion for any reason without notification.

         
         

   4. The Client acknowledges and agrees that:

      
      

      1. in order to use the SMS Service, it must obtain as appropriate email and access to the Internet, and pay any service fees associated with such access. In addition, the Client must provide at its own cost all the equipment necessary to make such a connection to the Internet;

      2. to protect the integrity of the system and SMS Service, users may not send unlawful, obscene, abusive, harassing or threatening messages. Spamming (unsolicited marketing) is not allowed.

      3. it shall be held responsible to the Provider for any use of their password by third parties. The Client will pay for sending all SMS Text messages from its account and in this respect the Client is recommended to keep their password to the SMS server in a safe place and not to reveal it to third parties;

      4. after the Provider has received a correctly completed and signed copy of this Agreement and direct debit mandate a password will be sent to the Client via e- mail. This password serves as authentication of the Client to the Provider. The Provider will perform no further authentication of the Client's identity; The Client agrees that all SMS activities which can be traced to the Client's password are deemed as having been performed by the Client and are legally binding for the Client;

      5. it will be responsible for the content of any SMS Text message, which the Provider transmits or processes on the Client's behalf or on behalf of any third party.

         
         

         The Client shall ensure that the access is not used to worry or annoy any GSM users or for any other unlawful purpose. In particular, scenes of violence, pornography, incitement to violence and racial discrimination are unlawful. SMS Text messages with advertising content may not be sent to GSM users who have indicated that they do not wish to receive advertising material. Any advertising text must contain a Client hotline number. (Premium rate numbers that incur a charge must state the charges involved.) Also, such SMS messages transmitted must contain an existing and authorised Client service phone number belonging to the Client or authorised for use as such by the owner of the phone number; and

      6. will comply with all applicable laws, regulations and network operator requirements including, without limitation, those relating to data protection, privacy, advertising and direct marketing. Any complaint from a third party, a network operator, the Information Commissioner’s Office or any other enforcement

         authority would be regarded in a very serious light and in such circumstances, the Provider may, at its discretion, suspend provision of the SMS Service. Clients are advised to include their own contact details in their messages to ensure that complaints are directed at them and not at the network operator or another party. The Provider may remove numbers from its database should complaints be received.

   5. In its handling of data, the Provider shall adhere to current legislation relating to telecommunications and data protection. This applies, among other things to the registration, storage and passing on of Client data. The Provider may be obliged by law, to provide information about Clients' telecommunications traffic to the relevant authorities by court order during prosecution proceedings. The Provider cannot eliminate the possibility of unauthorised third parties obtaining access to the contents of transmitted messages.

   6. The Client agrees that, by definition, access to the Internet, the GSM network and other communication media is associated with risks concerning authentication, data security, privacy, availability of services, reliability of transmission etc. - The Client agrees to bear full and exclusive responsibility arising from such risks and all consequences of the usage of the SMS Service and agrees that the Provider is not liable for such risks and consequences.

   7. The Client acknowledges that the Provider delivers SMS messages via telecommunications companies and mobile network providers and can therefore only influence the delivery with respect to transmission of SMS messages within the technical constraints imposed by the above mentioned providers. SMS messages submitted via the Provider’s SMS Servers will be transferred to the addressed mobile recipients within seconds or minutes. The Provider cannot guarantee that recipients will receive the SMS messagesThe Client acknowledges that, depending on the recipient's mobile service provider, it may not be possible to transmit the SMS message to the recipient successfully, as it will depend on a number of factors including, without limitation, whether the recipient's phone is switched on and located in an area covered by their subscribed mobile network provider and whether the recipient’s mobile service provider supports SMS delivery.

6. PROVISION OF PROPERTY INFORMATION

   1. Where the Client has informed the Provider, on the Provider’s Website or on an Order Form that it wishes to take the Datafeed Service and the Client has paid the Datafeed Fees, the Provider agrees to make available the information outlined in Schedule 2, in a File, to the selected Portals, that have signed an agreement with the Provider

   2. The Provider: -

      
      

      1. reserves the right to change the specification of the Files without notification;

         
         

      2. is not committing to provide the Files after every business day;

         
         

      3. is not liable for the content of the Files;

         
         

      4. reserves the right to suspend or stop the provision of the Files, to any or all Portals, at its discretion without notification;

         
         

      5. reserves the right to access any part of the data Files for redistribution at its discretion.

         
         

   3. The Client agrees:-

      
      

      1. it is duly authorised to allow the upload of the information onto the Portals that it selects on the Provider’s Website and that it has entered into a written agreement with the relevant Portals or will do so prior to the transmission of any Files to the Portals

      2. not to be, nor give authority to any third party to be, without the Provider’s prior written consent, in any way directly or indirectly engaged or concerned with copying, reproducing, redistributing, downloading, republishing, transmitting, displaying, adapting, altering, creating derivative works from or otherwise extract or re-utilise any information made available on any of the Provider’s Websites, whether for commercial gain or otherwise;

      3. not to, nor give authority to any third party to reference or link, without the Provider’s prior written consent, in any way directly or indirectly, to any of the Provider’s Websites;

      4. the content can be used to deliver the Services and also for our own business purposes, including but not limited to the creation of anonymised statistical data, that we may provide to third parties;

      5. the Files will be made available to Portals, at the Provider’s discretion;

         
         

      6. it is solely responsible for the content of the Files.

         
         

   4. The Provider reserves the right to charge for the Files made available at a future date.

      
      

   5. Pricing will be reviewed in October in each calendar year by the Provider.

      
      

   6. The Client acknowledges that the Files may contain bugs, errors and other problems that may cause systems failures. Consequently, the files are provided "AS IS", without a warranty of any kind.

7. SUPPORT SERVICE

   
   

   1. In consideration of the Client paying the Support Fees to the Provider, the Provider shall provide the Support Service to the Client in accordance with the terms of the Support Services Agreement.

   2. The Client acknowledges and agrees that the Licence is conditional upon the Client paying for the Support Service. If, for any reason, the Client ceases to pay the Support Fees, the Licence shall terminate automatically and the Client shall comply with its obligations in clause 10.5.

8. CLIENT’S OBLIGATIONS

   
   

   1. The Client acknowledges that it is solely responsible for all data and content inputted into the Software and contained in any SMS messages or Files (“Content”).

      
      

   2. The Client warrants that all Content is accurate, legal, non-defamatory, decent, honest and truthful; complies with all relevant regulations, laws and codes of practice; will not breach any contract and/or infringe any third party Intellectual Property Rights and/or other rights; will not render the Provider liable to any proceedings; and will not harm and/or detriment the reputation of the Provider.

   3. The Client shall indemnify and hold harmless the Provider from and against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and administration costs) and any other losses and/or liabilities arising out of (i) any claim by a third party relating to the Content; (ii) the Client’s use of the SMS Service; (iii) the Client’s violation of any rights of a third party and/or of any laws or regulations or codes of practice; and/or (iv) any breach of this Agreement by the Client.

9. FEES

   
   

   1. All Fees are exclusive of VAT which shall be payable by the Client in addition.

      
      

   2. Time for the payment of all Fees is of the essence.

      
      

   3. The Licence Fees are payable within on or before the due date for installation, or payable on or before the issue of release codes for additional licences or concurrent licence arrangements.

   4. The Support Fees are payable in line with the terms set out on the order form, but in any event would be payable annually in advance of the support period if not clear.

      
      

   5. The Datafeed Fees are payable in line with the terms set out on the order form, but in any event would be payable on a monthly basis for the duration of the service period.

      
      

   6. SMS Fees

      
      

      1. Invoices in respect of the SMS Fees will be raised on the last day of each calendar month for each office or as soon as possible after that date, for the Client’s usage in [that] [the previous] calendar month;

      2. Invoices will be raised for a minimum amount of £10.00, irrespective of the number of SMS messages sent;

         
         

      3. The SMS pricing scheme is 10 pence per SMS sent. The charge for this service will made regardless of successful delivery.

         
         

      4. As the Provider cannot guarantee delivery of the SMS messages to recipients due to factors outside of its control, the Provider does not refund undeliverable SMS messages to the Client;

      5. the Provider shall bill the Client for the transmission of SMS Text messages using the Provider’s server records. These records shall be considered correct, even if the Client contests the bill, and the Provider's technical checks do not give any indications of errors. The charges for the Provider’s SMS Server only apply to SMS Text messages transmitted on GSM networks;

      6. the charges specified by each individual GSM network operator apply to the transmission of SMS Text messages on GSM networks of third parties. The Provider reserves the right to pass on any charges it receives from other operators to the Client; and

   7. Payment for all non upfront fees will need to be made by direct debit.

      
      

   8. Fees will be collected by direct debit on or after ten Business Days from the invoice date.

      
      

   9. The provider may increase support / rental fees annually. All increases will be effective at the annual anniversary of the support / rental contract. The provider reserves the right to make non anniversary increases which shall be notified to the Client at least 30 days prior to the increase taking effect.

   10. The Client shall pay all Fees due under this Agreement without any set off, deduction, counterclaim and/or other withholding of monies.

       
       

   11. If the Client fails to pay any Fees when due, the Provider reserves the right (without prejudice to any other remedies it may have) to:

       
       

       1. charge interest (both before and after judgment) on the amount outstanding at the current applicable statutory rate set out under the Late Payment of Commercial Debts (Interest) Act 1998;

       2. suspend provision of any or all of the Services; and/or

          
          

       3. terminate the Licence with immediate effect.

          
          

10. TERM AND TERMINATION

    
    

    1. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the following provisions or as otherwise provided in this Agreement.

    2. This Agreement will continue in force until terminated by either CFP Software Ltd or the Licensee on giving not less than three months’ notice in writing to expire on the Anniversary Date. For the avoidance of doubt, if the support services agreement is not terminated in accordance with this clause, the annual charge will be due for the future period.

    3. The Provider may immediately terminate the Datafeed Service and/or the SMS Service if it is no longer able to provide these Services due to circumstances outside its control.

       
       

    4. The Provider may terminate this Agreement, the Licence and/or any or all of the Services immediately on giving notice in writing to the Client if:

       
       

       1. the Client commits a breach of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Provider to do so, to remedy the breach;

       2. the Client shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Client shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or by any person in respect of any of these circumstances);

       3. the Client ceases to carry on business;

       4. the Client does or omits to do something which in the reasonable opinion of the Provider, may be detrimental to the Provider’s reputation and/or business.

    5. Immediately upon the termination of this Agreement and/or the Licence for any reason, the Client shall return to the Provider any physical Software materials including any modifications made by the Client and all copies of the whole or any part of them (including without limitation, any back up copies made) or, if so requested by the Provider, shall destroy them and certify in writing to the Provider that they have been destroyed. The Client shall also cause the Software to be permanently deleted from its computers and shall certify to the Provider in writing that this has been done.

    6. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.

    7. For the avoidance of doubt, there shall be no refund of any element of the Fees by reason of any termination of this Agreement by the Client, except if a court should rule that this Agreement be unfair or flawed in any way.

11. LIABILITY

    
    

    1. Except as provided in clause 11.4, the Provider shall not be liable to the Client in contract, tort (including, without limitation, negligence), statutory duty or otherwise arising out of or in connection with this Agreement for (a) consequential, indirect or special loss or damage; (b) any loss of goodwill or reputation; (c) loss of contracts, business and/or opportunity; (d) loss of profits; (e) loss of revenue or anticipated savings; and/or (f) any economic and/or other similar losses; and in each case such liability is excluded whether it is foreseeable, known, foreseen or otherwise and whether such losses are direct, indirect, consequential or otherwise.

    2. Except as provided in clause 11.4, the total liability of the Provider to the Client under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will in aggregate in respect of any claim or series of connected claims be limited to: (i) [125%] of the Licence Fees paid to the Provider in respect of any liability relating to the Software; and (ii) in respect of any liability relating to the Services, 125% of the relevant Fees paid by the Client to the Provider for the Services giving rise to the liability in the 12 months immediately preceding the date of the event giving rise to the liability.

    3. Except as provided in clause 11.4, the Provider shall not be liable to the Client for any loss arising out of (and to the extent caused by) any failure by the Client to keep full and up-to-date security copies of the Software and any data processed and/or held by the Software in accordance with best computing practice.

    4. Nothing in this Agreement shall exclude or limit either party’s liability for death and/or personal injury caused by its negligence, for fraud, fraudulent misrepresentation or for any other liability which it is not permitted to exclude or limit as a matter of law.

12. CONFIDENTIALITY

    
    

    1. Each party ('Receiving Party') shall keep the confidential information of the other party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for performing the Receiving Party's obligations under this Agreement.

    2. The obligations of clause 12.1 shall not apply to any information which:

       
       

       1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Providing Party;

          
          

       2. is, or becomes, publicly available through no fault of the Receiving Party;

          
          

       3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

       4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or

       5. is required to be disclosed by order of a court of competent jurisdiction.

          
          

13. GENERAL

    
    

    1. Force Majeure

       
       

       Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 3 months, either party may terminate this Agreement by written notice to the other party.

    2. Amendments

       
       

       This Agreement may only be amended in writing signed by duly authorised representatives of the parties.

       
       

    3. Assignment

       
       

       The Provider shall be able to assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the Client. The Client shall not be entitled to assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement.

    4. Entire agreement

       
       

       This Agreement, including the schedules and appendix and any order form, contains the whole agreement between the parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.

    5. Waiver

       
       

       No failure or delay by the Provider in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

    6. Agency, partnership

       
       

       This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party's behalf.

    7. Severance

       
       

       If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

    8. Announcements

       No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

    9. Notices

       
       

       1. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by facsimile or e-mail to the address of the relevant party set out as below, or to the relevant facsimile number set out below, or such other address or facsimile number as that party may from time to time notify to the other party in accordance with this clause. The relevant contact information for the Property Software Group is as follows:

          
          

          Post: Property Software Group, Prosper House, Cardrew Industrial Estate, Redruth, Cornwall TR15 1SS

          
          

          Email: customerservice@propertysoftwaregroup.com

          
          

          Facsimile: 01209 314368

          
          

       2. Notices sent as above shall be deemed to have been received 3 Business Days after the day of posting (in the case of inland first class mail), or 7 Business days after the date of posting (in the case of air mail), or on the next Business day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender's facsimile machine recording a message from the recipient's facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted), or next Business day after sending (in the case of e-mail).

       3. In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.

          
          

14. LAW AND JURISDICTION

    
    

    The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the parties submit.

15. THIRD PARTIES

For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

SCHEDULE 1 SOFTWARE

CFPwinMan SDB

SCHEDULE 2 PROPERTY INFORMATION

The Provider will supply the following property information (where possible) to the Portals:

Property name, street, town, county and postcode Property price and Price Qualifier

Property type and status Number of bedrooms Property description Property bullet points

Main property image (however, there will be a link back to the additional images from the property recorded on the Portal)

The “files” specification is under constant development. Enhancements to the file may result in other property information becoming available.

APPENDIX 1

SUPPORT SERVICES AGREEMENT

1. SUPPORT SERVICE

   
   

   1. In consideration of the full payment of the Support Fees, the Provider shall provide the Support Service in respect of the Services.

      
      

      The Support Service shall comprise a technical support desk available 9.00am – 5.30pm on Business Days (excluding 12 noon to 5.30pm on Christmas Eve). For the avoidance of doubt, this support service does not cover hardware or server support provided by CFP, which is subject to an additional agreement.

   2. There are 2 ways of accessing the Support Service and contacting the technical support desk as follows:

      
      

      1. E-mail to cfpsupport@propertysoftwaregroup.com

         
         

      2. Users only area of the Provider’s website located at www.cfp-software.co.uk

         
         

      3. Calls are recorded for training and monitoring purposes. Our support team is made up of highly trained professionals who regularly receive training to ensure that they are fully equipped to answer all your support queries quickly and efficiently. In addition to this, we monitor and record our calls to ensure that we maintain the highest possible standards of service to our clients and regularly carry out surveys to encourage feedback from our customers.

   3. The Provider shall respond to any telephone calls or e-mails by the most appropriate method which may be by telephone, e-mail, remote dial-in or fax.

      
      

   4. The Support Service does not include any on-site assistance and will only be provided remotely.

      
      

   5. The Client shall provide the Provider, its employees, contractors, agents and all other persons duly authorised by the Provider with full, safe and uninterrupted access (including remote access) to the Client’s systems, facilities and the Software as may be reasonably required by the Provider for the purpose of providing the Support Service.

   6. The Client shall ensure that appropriate environmental conditions are maintained for the Software and shall take all reasonable steps to ensure that the Software is operated in a proper manner and only by employees of the Client who are adequately trained on the use of the Software.

   7. The Client shall:

      
      

      1. co-operate with the Provider in performing the Support Service and provide any assistance or information as may reasonably be required by the Provider, including in relation to the diagnosis of any faults;

      2. report faults promptly and in sufficient detail to the Provider;

         
         

      3. keep full and up to date back up copies of all of its data at each site;

         
         

      4. carry out regular virus checks of the Software.

         
         

   8. All calls will be logged and the Provider reserves the right to monitor calls to ensure that a high quality is maintained.

      
      

   9. In order to allocate available resources to third party engineers making required site visits to Clients, the Provider requires a minimum of 24 hours notice of any such visit.

      
      

      Whilst every effort will be made to prioritise support calls to engineers on-site, Clients who fail to provide the stated 24 hours notice may experience delays in obtaining support for their on-site engineers. This is owing to the need for support resources to be continuously monitored and re-allocated between competing demands. Any charges raised by an on-site engineer are the sole responsibility of the Client and the Provider will not be liable for any such charges.

   10. From time to time, it may be necessary for the Provider’s Support Team to refer the Client to the original installation disks (where applicable). This may be in relation to the Client’s operating system, network or applications. It is important, therefore, that the Client keeps these disks (where applicable) in a safe place where they can be quickly accessed should the need arise. Failure to be able to produce these disks (where applicable) may result in a delay or disruption to the Client’s service.

   11. If the Support Service is not taken out on renewal, any support undertaken will be charged at £200 per hour, and is conditional on the client approving this charge in advance.

       
       

   12. During the lifetime of a PC, it is possible, though unlikely, that the operating system may become unstable and require reloading. This should be carried out by an on-site engineer at all times, either via the hardware manufacturers if the equipment is within warranty, or via a local hardware engineer if not. This reloading will delete all software on that PC and all the network settings if the PC is used as a server. The Provider will assist in reloading only the Software, and all requirements beyond that are the Client’s responsibility.

2. EXCLUSIONS

   
   

   1. The Support Service does not include:

      
      

      1. site visits, software installations, training and/or recovery of data;

         
         

      2. general training issues;

         
         

      3. support in respect of third party software, irrespective of whether or not supplied by the Provider to the Client;

         
         

      4. Customisation Services (template creation and amendments);

         
         

      5. support in respect of the Client’s systems, network, hardware and/or any other equipment or associated components;

         
         

      6. updates to letters and agreements provided by third parties;

         
         

      7. professional advice in relation to any legal or compliance issues regarding property management or estate agency;

         
         

      8. support in respect of any default or error in any of the Services which arises as a result of a defect or deficiency in, or a failure of, the equipment upon which the Software is operated; a failure to meet the required Minimum Specification; misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by the Provider) including failure or fluctuation of electrical power; use of the Software in combination with any equipment or software not provided by the Provider or not designated by the Provider as being compatible; any breach by the Client of its obligations under the Licence, Support and Services Agreement; any unauthorised amendment or alteration to the Software made by the Client and/or a third party not expressly authorised by the Provider to the Software; and/or operator error; and/or

      9. recovering or correcting data lost or corrupted by computer viruses.

   2. The Support Service covers all Releases of the current software and the Provider is not obliged to provide support or assistance in respect of any Release that is has been advised in general communication to clients that is no longer being developed or sold.

   3. The Provider can provide a CFPserver configured specifically for the Client’s purpose. If however the Client does not take up this service and chooses to carry out the installation itself, the Provider is not able to support the installation nor any ongoing hardware or configuration issues that arise with anything apart from its recommended operating systems and platforms. It is imperative that a suitable IT/Hardware company is employed to provide the initial installation and setup, plus a suitable ongoing support contract for any configuration and hardware issues. The Provider can not be responsible for any errors or problems arising from installing CFP programs on unsupported configurations. If the Client is in any doubt over suitability, the Client must contact a member of the Support team PRIOR to installation.

   4. The Client is not permitted to modify any databases within the Software and any modification shall immediately terminate this Agreement.