Product Specific Terms and Conditions

Yourkeys Services Terms and Conditions

Product Specific Terms and Conditions

Yourkeys Services Terms and Conditions

1. Definitions and interpretation

1.1 The following terms shall have the following meanings throughout this Agreement, unless the context requires otherwise:

"Agreement" has the meaning given to it in Clause 2.2;

"Affiliate" means, in relation to a company, any Subsidiary or Holding Company of that company, and any Subsidiary of a Holding Company of that company, in each case from time to time. For the purposes of this definition, a "Subsidiary of a Holding Company" is defined in Section 1159(1) of the Companies Act 2006;

"Business Day" means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

"Client" means the person or firm who purchases Services from the Provider and for the purposes of the Zoopla Member Terms and Conditions, a reference to a Member shall be deemed to include a reference to the Client;

"Client Data" means any data inputted into the Platform by the Client or an Authorised User or by the Provider on behalf of the Client including any Client Personal Data;

"Client Default" is defined in Clause 9.2;

"Client Information" means Client Data; materials, data and information relating to and arising or derived from the Client's use of and interactions with the Platform and the Services, any materials, data or information provided to the Provider by the Client, call recordings of any Support Services calls; any materials, data and information derived from any of the foregoing; and in all cases including any Intellectual Property Rights subsisting therein;

"Client Information Request" means the request made by the Provider to the Client for the Client Information required to generate Client Units;

"Client Personal Data" means Client Data that is also "personal data” as defined in Clause 5 of this Agreement;

"Client Units" means the plot of land, development site, property or real estate to be listed for sale on the Platform and/or the Website;

"Client Units Exchanged" means the number of Client Units listed for sale on the Platform and/or the Website which exchange within the Initial Term and, thereafter, to the extent applicable, the number of Client Units listed for sale on the Platform and/or the Website which exchange in each subsequent Renewal Period;

"Custom Development" means any Update or New Release commissioned by or on behalf of the Client;

"Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (“DPA 2018”); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

"Documentation" means any operating manuals, user instructions, technical literature, online help and all other documentation and materials supplied by the Provider to the Client in connection with the Yourkeys Services;

"Downtime" means any time during which the Services are unavailable to the Client;

"Effective Date" has the meaning given to it in Clause 2.3;

"Fees" the fees due to the Provider from the Client under the Order Form for the Yourkeys Services, which include the Third-Party Payment Processor Fees (if applicable) and any other fees due in respect of third-party providers as notified by the Provider to the Client on the Website or otherwise by email from time to time;

"Intellectual Property Rights" means all intellectual property rights, in each case whether registered or unregistered subsisting in the Platform, the Yourkeys Services and the Documentation and including rights to apply for and be granted, renewals and extensions of, and rights to claim priority from, such rights and all similar forms of protection in any part of the world;

"Initial Term" means the initial term of the Agreement (as defined in the Order Form) commencing on the date the Provider confirms product deployment of the Platform or the Effective Date, whichever is later;

"Modules" means Anti Money Laundering, New Homes CRM, Reservation Engine & Buyer Portal and/or New Homes Progression Portal as further described and selected on the Client’s Order Form;

"New Release" means any new release of the Platform which from time to time is publicly marketed and offered for subscription by the Provider which contains such significant differences from the previous releases as to be generally accepted in the marketplace as constituting a new version of the Platform;

"Onboarding Period” means the period commencing on the Effective Date and expiring on the date the Provider confirms product deployment of the Platform;

"Order" or "Order Form" means the Client's order for Yourkeys Services;

"Platform" means the Yourkeys platform which is owned and operated by the Provider or its Affiliates and provided to the Client as part of the Yourkeys Services as set out in the Order;

"Provider" means Zoopla Limited, a company registered in England and Wales with registered number 06074771 and with its registered office at The Cooperage, 5 Copper Row, London SE1 2LH and for the purposes of the Zoopla Member Terms and Conditions, a reference to Zoopla shall be deemed to include a reference to the Provider;

"Purpose" the use of the Platform by the Client for its internal business purposes which includes the provision of access to relevant parts of the Platform to its customers;

"Renewal Term" has the meaning given to it in Clause 2.1;

"Review Period" is defined in Clause 4.2;

"Support Services" means the Yourkeys Platform support services described in Schedule 2;

"Term" means the term of any Trial Period, Onboarding Period, the Initial Term and any Renewal Term;

"Third-Party Licences" means the licence terms with relevant third-party providers set out in Schedule 3, and as updated and amended on the relevant third-party website from time to time;

"Third-Party Payment Processor" means any third-party payment collection service provider appointed by the Provider and used by the Client via the Platform from time to time;

"Technical Services" means the Yourkeys Platform technical services, if any, as set out in the Order Form as professional services;

"Training Services" means the Yourkeys Platform training services, if any, as set out in the Order Form;

"Trial Period" means the period of time set out in the Order Form during which time the Yourkeys Services are provided on a free-of-charge, as-is, basis to allow the Client to evaluate the Yourkeys Services;

"Update" means a release of the Platform that corrects faults, adds functionality or otherwise amends or upgrades the Platform, but which does not constitute a New Release (and "Updated" shall be construed accordingly);

"VAT" means value added tax or any equivalent tax chargeable in the UK or elsewhere;

"Virus" means anything or device (including any software, code, file or programme) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

"Website" means the website located at www.yourkeys.com and any other website whose domain name is owned or controlled or powered by the Provider or its Affiliates in relation to the same or similar services contemplated by this Agreement;

"Yourkeys Platform Services" means the Yourkeys Platform Services as set out in the Order Form;

"Yourkeys Services" means the services which the Provider agrees to provide in respect of the Platform as specified in the Order Form, which may include the Yourkeys Platform Services, the Support Services, the Technical Services and the Training Services; and

"Zoopla Member Terms and Conditions" means the terms and conditions entered into between the Provider and the Client as updated from time to time and which can be found at www.zoopla.co.uk/members/terms.

1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.3 Any words following the terms "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 A reference to "writing" or "written" includes email but not fax.

2. Basis of Agreement

2.1 This Agreement shall, unless otherwise terminated in accordance with Clause 12 commence on the Effective Date and continue for the Onboarding Period (if applicable), the Initial Term and, thereafter, the Agreement shall be automatically renewed on each anniversary of the commencement of the Initial Term for successive 12-month periods (each a "Renewal Term"). During the Initial Term or the Renewal Term (as applicable) the Provider or the Client shall only be entitled to terminate the Agreement for convenience by providing at least one month’s written notice, such notice of termination to take effect on expiry of the Initial Term or the relevant Renewal Term (as applicable).

2.2 "The Agreement" shall comprise:

(a) the Order Form;

(b) these Product Specific Terms and Conditions;

(c) the Zoopla Member Terms and Conditions; and

(d) the Third-Party Licences,

in each case as updated and amended from time to time. For the avoidance of doubt, this Agreement shall constitute the entire agreement between the parties to the exclusion of any other terms and conditions which the Client purports to incorporate by any means, including by reference in the Order Form.

2.3 The Order Form constitutes an offer to purchase the Yourkeys Services in accordance with the terms and conditions of this Agreement. If the Client's offer to purchase the Yourkeys Services is accepted by the Provider then the Provider will send the Client Information Request to the email address registered to the Client's account, at which point this Agreement will come into force ("the Effective Date").

2.4 If there is a conflict between the Order Form, these Product Specific Terms and Conditions, the Zoopla Member Terms and Conditions and Third-Party Licences, the following order of priority shall apply:

(a) the Order Form;

(b) these Product Specific Terms and Conditions;

(c) the Zoopla Member Terms and Conditions; and

(d) the Third-Party Licences.

3. Subscription

3.1 The Provider hereby grants to the Client a personal, non-exclusive, non-transferable right, without the right to grant sub-licences, to access and use the Yourkeys Services and the Documentation during the Term solely for the Purpose and subject to:

(a) the terms and conditions of this Agreement;

(b) the maximum number of Client Units Exchanged as set out in the Order Form (if relevant);

(c) payment of the Fees.

3.2 In relation to the Yourkeys Services, the Client undertakes not to access, store, or distribute any material during its use of the Yourkeys Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property; or

(g) transmits, introduces, or otherwise permits the introduction of any Virus into the Platform;

3.3 The Client shall not except as permitted by law or in accordance with the terms of this Agreement:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform or Documentation (as applicable) in any form or media or by any means;

(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;

(c) access all or any part of the Yourkeys Services and Documentation to build a product or service which competes with the Yourkeys Services or the Documentation; or

(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Yourkeys Services or Documentation available to any third party;

(e) attempt to obtain, or assist third parties in obtaining, access to the Yourkeys Services and/or Documentation, other than as provided under this Clause 3; or

(f) modify any databases within the Platform,

and such breach of this Clause 3.3 shall constitute an irredeemable material breach, entitling the Provider to terminate this Agreement immediately on notice to the Client.

3.4 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Yourkeys Services and the Documentation and, in the event of any unauthorised access or use, promptly notify the Provider.

3.5 In the event the Client fails to comply with any of the conditions set out in Clause 3, the Provider reserves the right, in its sole discretion and without liability to the Client or prejudice to any of its other rights or remedies available under this Agreement or applicable law:

(a) to disable, terminate or suspend the Client's access to the Yourkeys Services;

(b) and to remove, cause to be removed or decline to host or make available any Client Data on the Platform and/or the Website; and/or

(c) with respect to breach of Clause 3.1(b), to charge the Client additional Fees if the number of Client Units Exchanged exceeds the number set out on the Order Form (if relevant).

4. Supply of Yourkeys Services

4.1 On the Effective Date, the Client shall provide all Client Information requested by the Provider without undue delay to enable the Provider to upload details of the Client Units to the Platform. Following receipt of such Client Information, the Provider shall use commercially reasonable endeavours to display the Client Units on the Platform within 28 Business Days of receiving such Client Information. Time of performance of the Services shall not be of the essence of this Agreement.

4.2 The Client will review and verify all Client Units, once displayed on the Platform in accordance with Clause 4.1 and shall notify the Provider of any errors in the display within 48 hours ("Review Period"). If no such notification is received, the Provider shall activate the listing of the Client Units. If the Client does notify the Provider of any errors in the Unit Listings within the Review Period, the Provider shall use commercially reasonable endeavours to correct the errors before the listing of the Client Units are activated. Once activated the Provider will be under no obligation to correct any errors in the listings. The Client warrants that the Client Information is true, complete, up-to-date and accurate and accepts that the Provider shall have no liability for inaccurate Client Unit listings based on Client Information provided to it by the Client.

4.3 During the Term, the Provider shall use commercially reasonable endeavours to make the Yourkeys Services and Documentation available 24 hours a day, seven days a week, but the Client acknowledges that there may be Downtime for:

(a) planned maintenance;

(b) unscheduled maintenance; or

(c) a Force Majeure Event or other circumstances outside of the Provider's reasonable control pursuant to Clause 8 of the Zoopla Member Terms and Conditions,

provided in each case that the Provider shall use commercially reasonable endeavours to give the Client notice of any Downtime in advance and to remedy any Downtime as soon as reasonably practicable. For the avoidance of doubt, the Support Services do not include any New Releases or Custom Developments.

5. Data Protection

5.1 Each party shall comply with its respective rights and obligations in accordance with the Data Protection Legislation.

5.2 In this Clause 5, the terms "data subject(s)", "personal data", "process" and "processor" shall have the meanings given in the UK GDPR (and shall include any other terms with equivalent meaning that may exist under the Data Protection Legislation).

5.3 Subject to Clause 5.7 below, the parties acknowledge that the Client is the controller of any Client Personal Data processed pursuant to this agreement and the Provider is the processor as set out in Schedule 1.

5.4 The Client shall ensure that its processing of Client Personal Data is permitted under applicable Data Protection Legislation and that any processing instructions it issues to the Provider are in accordance with Data Protection Legislation.

5.5 In relation to all Client Personal Data provided or made available to the Provider by the Client, the Provider shall:

(a) only process such Client Personal Data to the extent necessary to comply with its obligations under this Agreement;

(b) comply with the Client's written instructions in relation to any processing activities it carries out on behalf of the Client (including any instruction to rectify, delete, block, destroy or return any Client Data);

(c) inform the Client if, in the Provider's opinion, any instructions given to it by the Client in relation to the processing of such Client Personal Data under this Agreement infringes any Data Protection Legislation;

(d) implement and operate, and shall procure that any sub-processor implements and operates, appropriate technical and organisational measures to ensure:

(i) the protection of the rights of the data subjects; and

(ii) a level of security appropriate to mitigate the risks that are presented by any processing of such Client Personal Data, in particular protection from accidental loss or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Client Personal Data transmitted, stored or otherwise processed by the Provider pursuant to this Agreement;

(e) will not, without the prior written consent of the Client, transfer any such Client Personal Data to any country unless such country is recognised under the Data Protection Legislation from time to time as providing adequate protection for personal data, or adequate safeguards have first been put in place such as will enable each party to comply with the data transfer requirements of the Data Protection Legislation.

(f) will take reasonable steps to ensure that only authorised personnel have access to any such Client Data and that any persons whom it authorises to have access to the Client Data are under obligations of confidentiality;

(g) will notify the Client without undue delay of any (i) loss, damage or destruction of Client Personal Data, and (ii) any access, use, disclosure or other processing of Client Personal Data other than as expressly permitted under this Agreement or applicable law, and (iii) provide reasonable assistance to the Client in respect of any such breach identified in this Clause 5.5(g);

(h) will provide such assistance as the Client reasonably requests, at Client’s sole cost, (taking into account the nature of processing and the information available to Provider) to the Client in relation to the Client's obligations under the Data Protection Legislation. Any costs incurred by the Provider in complying with this provision shall be charged at Provider’s standard rates in place from time to time and shall be invoiced monthly in arrears.

(i) will make available on request information reasonably required by the Client to demonstrate the Provider's compliance with its obligations in this Clause 5.5; and

(j) as soon as reasonably practicable following termination of this Agreement and subject to Clause 5.7 below, the Provider will delete or return to the Client (at the Client's direction) the Client Personal Data.

5.6 The Client hereby grants the Provider a general authorization to appoint sub-processors. The Provider will ensure that any sub-processor it engages to provide any element of the Yourkeys Services on its behalf will enter into a written contract which imposes on any such sub-processor terms no less protective of the Client Personal Data than those contained in this Clause 5.

5.7 The Client acknowledges that Provider may have access to other copies of the information comprised in the Customer Personal Data and that Provider is the controller with respect to such other copies.

6. Intellectual Property Rights

6.1 The Client shall own all Intellectual Property Rights in the Client Data and is solely responsible for the legality, reliability, integrity, accuracy and quality of the Client Data.

6.2 All Intellectual Property Rights in or arising out of or in connection with the Yourkeys Services (other than Intellectual Property Rights in the Client Data), including the Platform, the Documentation, and the Yourkeys Services, shall be owned by the Provider, its Affiliates or their licensors (as applicable).

6.3 Subject to the Client's payment of the Fees, the Provider grants to the Client a worldwide, non-exclusive, royalty free, non-transferable, non-sublicensable licence during the Term to use the Intellectual Property Rights owned by the Provider solely to the extent necessary to receive and use the Yourkeys Services for the Purpose.

6.4 The Client grants to the Provider a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, sub-licensable licence to use, copy, store, archive, modify, extract, display, distribute, transmit, transfer, make available, reutilise, download and create derivative works and data from any Client Information (which for the avoidance of doubt includes Client Data) during the Term and at any time thereafter for the purposes of providing the Yourkeys Services to the Client and optimising, adjusting, aggregating, evaluating, analysing, reporting on and deriving insight from the Client Information to improve and develop the Yourkeys Services and Platform, and any other services, products or technology operated by or which may be developed and operated by the Provider or an Affiliate of the Provider.

7. Intellectual Property Indemnities

7.1 The Client indemnifies the Provider, its Affiliates, and their respective directors, officers, employees, agents and sub-contractors against all losses and expenses incurred by them arising out of or in connection with:

(a) the Client's use of the Yourkeys Services other than in accordance with the terms and conditions of this Agreement;

(b) the Client's failure to use an Updated version of the Yourkeys Services;

(c) any breach by the Client of applicable law or regulation (including any breach of the Data Protection Legislation); and

(d) any allegation or claim brought by a third party alleging that the Provider's use of any materials provided by the Client to the Provider (including the Client Data) infringes that third party's Intellectual Property Rights.

7.2 If any third party makes a claim, or notifies an intention to make a claim, against the Provider which may reasonably be considered likely to give rise to a liability under the indemnities in Clause 7.1, the Client shall give the Provider full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and, at the Provider's option, sole authority to manage, defend and/or settle it.

8. Provider obligations

8.1 The Provider shall perform or procure that its relevant Affiliate will perform the Yourkeys Services with reasonable skill and care.

8.2 The Provider does not warrant that:

(a) The Client's use of the Yourkeys Services will be uninterrupted, error-free, or free from any Virus, Downtime, or outage; or

(b) the Yourkeys Services, Documentation or any information obtained by the Client through use of the Yourkeys Services will meet the Client's requirements.

8.3 The Provider is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Yourkeys Services and Documentation may be subject to limitations, delays, and other problems inherent in the use of such communications networks and facility.

8.4 The Yourkeys Services are provided on an as-is basis and accordingly except as expressly set out in this Agreement all warranties and representations (whether express or implied), including as to the quality, accuracy, completeness, fitness for purpose, merchantability and non-infringement are, to the fullest extent permitted by law, excluded.

9. Client obligations

9.1 The Client shall:

(a) provide the Provider with all necessary cooperation in relation to the Agreement including all necessary access to such information as may be required by the Provider to provide the Yourkeys Services, including to Client Data, security access information and configuration services;

(b) comply with applicable laws and regulations with respect to its rights and obligations under the Agreement (including the Data Protection Legislation) and immediately inform the Provider if any change in applicable laws and regulations renders its performance of its obligations under this Agreement unlawful;

(c) comply with the terms of the Third Party Licences as updated and amended from time to time;

(d) carry out its obligations under the Agreement in a timely and efficient manner;

(e) ensure that its network and systems comply with the relevant specifications provided to it by the Provider from time to time; and

(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Provider's data centres, and all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.

9.2 If the Provider's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (each a "Client Default") then:

(a) without limiting or affecting any other right or remedy available to it, the Provider may suspend performance of the Yourkeys Services until the Client remedies the Client Default, and rely on the Client Default to relieve it from the performance of any of its obligations, in each case to the extent the Client Default prevents or delays the Provider's performance of any of its obligations;

(b) the Provider shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client's failure or delay in performing any of its obligations as set out in Clause 9.1; and

(c) the Client indemnifies the Provider against any costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Provider arising out of or in connection in connection with the Client Default.

10. Fees

10.1 Subject to any express terms set out in the Order Form and Schedule 4, the Client shall pay the Fees (plus VAT and any other taxes or duties thereon) together with any other charges due under this Agreement in accordance with the provisions of Clause 4 of the Zoopla Member Terms and Conditions.

10.2 Where applicable, if during the Term of this Agreement the number of Client Units Exchanged exceeds the threshold number set out in the Order Form then the Provider may proportionally increase the Fees to reflect the actual number of Client Units Exchanged by providing 30 days' prior written notice to the Client by email to the email address registered to the Client's account. The Client's ongoing use of the Yourkeys Services shall be deemed as acceptance of the increased Fees which will take effect 30 days after the Client was notified of the change in accordance with this Clause 10.2.

10.3 In addition to the Fees, any applicable Third-Party Payment Processor Fees may be charged in accordance with the arrangements notified to the Client by the Provider from time to time.

11. Limitation of Liability

11.1 Subject to Clauses 11.3, 8.3 and 8.4 the Provider's total liability to the Client (whether in contract, tort, breach of statutory duty or otherwise) arising out of or in connection with this Agreement is set out in Clause 5 of the Zoopla Member Terms and Conditions and the Client's attention is particularly drawn to this Clause and Schedule 3 in respect of liability for Third Party Licences.

11.2 Subject to Clauses 11.3, 8.3 and 8.4 the Client acknowledges that in relation to any Yourkeys Services provided during a Trial Period on a free of charge basis the Provider shall have no liability to the Client of any kind (whether in contract, tort, breach of statutory duty or otherwise).

11.3 Nothing in the Agreement excludes or limits the liability of either party for:

(a) death or personal injury caused by that party's negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which cannot be excluded or limited by law.

12. Termination

12.1 Without affecting any other right or remedy available to it, either party may exercise its respective termination rights set out in Clause 7 of the Zoopla Member Terms and Condition.

12.2 On termination of this Agreement for any reason, the provisions of Clause 7.7 of the Zoopla Member Terms and Conditions shall apply.

13. Confidentiality

Each party may be given access to confidential information from the other party in order to perform its obligations under this Agreement. Each party shall hold such information in confidence and not make the other's confidential information available to any third party, or use the other's confidential information unless the conditions set out in Clause 6.1 of Zoopla Member Terms and Conditions are satisfied.

14. Variation

Subject to Clause 10.2, the Provider may from time to time amend these Product Specific Terms and Conditions and reserves the right to do so in its absolute discretion. Any changes will be posted on the Website and become effective at the time of posting. The Client's ongoing use of the Yourkeys Services shall be deemed as acceptance of any such change.

15. Governing Law and Jurisdiction

These Product Specific Terms and Conditions shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England shall have jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Product Specific Terms and Conditions,

SCHEDULE 1

Personal Data

For the purposes of Clause 5, the parties set out below a description of the Client Personal Data being processed under this agreement.

1. Types of personal data

Full name, address, email address, contact number(s), address, photographic identification, proofs of address and such other personal data as may be required to provide the Yourkeys Services.

2. Duration of processing

Until the earliest of termination of this Agreement in accordance with its terms or the date upon which processing is no longer necessary for the purposes of either party performing its respective obligations under this agreement (to the extent applicable).

3. Nature of processing

Collection, storage, distribution, communication, compliance with legal obligations, duplication, reproducing, electronic viewing, verification, account management, deletion and destruction.

4. Purpose of processing

Performance of the Yourkeys Services, including administration, support and management of business operations and improvements.

5. Categories of data subject

The Client Personal Data and any data subject who becomes the subject matter of Platform via the Client Data including individual home buyers, mortgage brokers, estate agents, and conveyancers.

SCHEDULE 2

Support Services

Customer service support

Yourkeys Customer Success Team is available from 9am - 5pm (GMT) Monday to Saturday and from 11am - 3pm (GMT) on Sunday. They can be contacted in the following ways:

Support Portal: https://support.yourkeys.com/hc/en-gb/requests/new

Live Chat: https://www.vourkevs.com

Email: [email protected]

Phone : +44 (0)208 088 2311

Any calls made by the Client to the Provider may be recorded for training and monitoring purposes. The Provider monitors and records calls to ensure high standards of service. The Provider shall respond to any telephone calls or emails by the method it deems most appropriate.

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

On-site support is available upon request and will be charged additionally at the Provider's then-current daily rate for this service.

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

The Client shall take all reasonable steps to ensure that the Yourkeys Services are operated in a proper manner and only by employees of the Client who are adequately trained on use of the Yourkeys Services.

The Client shall:

a) co-operate with the Provider and provide any assistance or information as may reasonably be required by the Provider, including in relation to the diagnosis of any faults;

b) report faults promptly and in sufficient detail to the Provider; and

c) carry out regular visits to the Platform.

Excluded Services

The Support Services do not include:

a) site visits;

b) recovery of data;

c) training requirements beyond business-as-usual support and onboarding;

d) data migration and merges;

e) data extraction;

f) customisation services;

g) support in respect of third-party software, irrespective of whether or not supplied by the Provider to the Client; support in respect of the Client's systems, network, hardware and/or any other equipment or associated components;

h) updates to letters and agreements provided by third parties;

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

j) support in respect of any default or error in any of the Yourkeys Services which arises as a result of a defect or deficiency in, or a failure of, the equipment upon which the Platform is operated; a defect or deficiencies in or a failure of an internet link; incorrect use of or damage to the Platform from whatever cause (other than any act or omission by the Provider) including failure or fluctuation of electrical power; and

k) use of the Platform in combination with any equipment or software not provided by the Provider or not designated by the Provider as being compatible, any unauthorised amendment or alteration to the Platform made by the Client and/or a third party not expressly authorised by the Provider; and/or operating error and/or recovering or correcting lost or corrupted by computer viruses.

These "Excluded Services" may be provided by the Provider at its sole discretion, for an additional charge (rates available on request).

SCHEDULE 3

THIRD PARTY LICENCES

The Client acknowledges that the Yourkeys Services may enable or assist it to access the website content of, correspond with, access products and services from, third parties via third-party websites (“Third Party Services”) which facilitate the Yourkeys Services under or pursuant to the Third Party Licences. The Provider makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, products or services and shall not be liable for any loss or damage suffered by the Client in connection with any Third Party Licences or use of the Third Party Service. Accordingly, any contract entered into and any transaction completed via any third-party website via the Platform is between the Client and the relevant third party, and not the Provider who shall have no liability whatsoever in respect of third-party services. The Provider reserves the right to suspend or terminate the Client’s access to the Third Party Licences and Third Party Services if: (i) directed to by the relevant third party or (ii) provision of the Third Party Services or Third Party Licence is in breach of any applicable law, regulation, guidance or contractual provision.

The Client agrees to be bound by the terms and conditions of the Provider's Third-Party Licences, namely (if applicable):

a) The Stripe Payment Gateway Terms and Conditions as updated and amended from time to time, available at: https://stripe.com/gb/legal

b) Together with the terms set out in Annexes 1 and 2 to this Schedule 3, the Onfido Identification Verification Terms and Conditions as updated and amended from time to time, available at: https://onfido.com/termsofuse/

c) Amazon Web Services to host the Website as updated and amended from time to time, available at: https://aws.amazon.com/service-terms/

d) Docusign e-Signature Services for the execution of legal documents as updated and amended from time to time available at: https://www.docusign.com/company/agreements

e) SalesSeek services (for use of YourKeys CRM) https://www.salesseek.com/terms/

Together, the ("Third Party Licences").

The Client acknowledges and accepts that the Third-Party Licences are subject to change from time to time at the Provider's sole discretion and without notice to the Client. Accordingly, details of the Provider's Third-Party Licenses are available on the Website and any change to the Third-Party Licence terms, or the appointment of a new Third-Party Licensor shall automatically be incorporated into this Schedule.

ANNEX 1

ONFIDO END USER TERMS

1. DEFINITIONS

"Brand Features" means the trade names, trademarks, logos and other distinctive brand features of the applicable party.

"Content" means any information, text, graphics, or other materials uploaded, downloaded or appearing as part of the Services.

"Developments" means the improvements to and development of Onfido’s Identity Verification Services, as described in the Onfido Privacy Policy.

"End Client" means the Client.

"Information Security Policy" has the meaning attributed to it in paragraph 4.2.1.

"Partner" means the Provider. 

"Personal Data" means any information relating to an identified or identifiable User.

"Privacy Laws" means any applicable rules, laws, regulations, directives and governmental requirements currently in effect and as they become effective relating to privacy or data protection.

"Processing" means any operation or set of operations which is performed on personal data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

"Reports" means a summary at a User level containing one or more of the checks provided as part of the Services.

"Security Breach" has the meaning attributed to it in paragraph 4.4.

"Services" means the identity verification services, including the Developments, offered by Onfido from time to time, as described in the Onfido Privacy Policy.

"Software" means any software provided by Onfido, including the software development kit (or “SDK”) and any maintenance release which is being made available as part of the Services.

"Site" means www.onfido.com and its subdomains.

"User" means any person whose identity is being verified by the Partner using the Services.

2. DESCRIPTION OF PROCESSING

 3. END CLIENT OBLIGATIONS

3.1. End Client agrees to provide or make available to Partner or assist Partner with the collection of Personal Data. Such information includes but is not limited to the information described in paragraph 2. End Client consents to Partner’s Processing to provide the Services, and End Client represents and warrants that it has taken all required steps to ensure that Partner may lawfully obtain the Personal Data for the purpose of providing the Services in accordance with Privacy Laws (including by having obtained all necessary consents and provided all necessary notices, where required).

3.2. End Client is solely and fully responsible for ensuring that all User’s data is accurate, complete and captured in a form that the Partner can process to maximise the quality of Service.

3.3. Subject to the Partner’s obligations to provide the Services with reasonable care and skill, the End Client assumes sole responsibility for conclusions drawn from use of the Services (including the Reports, the Content and the Site).

3.4. The End Client will comply with all applicable laws and regulations (including any obligation to seek prior regulatory review, approval, or similar) with respect to its use of the Services and will not:

(a) use the Services to discriminate against the User or in a manner that causes damage or injury to any person or property;

(b) use the Services in a manner that could be reasonably expected to bring Onfido into disrepute or otherwise harm its reputation;

(c) act or omit to act in a way which interferes with or compromises the integrity or security of the Services;

(d) access all or any part of the Services in order to build a product or service which competes with the Services;

(e) amend or remove Onfido Brand Features or “powered by Onfido” language from the Services, Site, or Software;

(f) make use of the Onfido API without prominently displaying “powered by Onfido” language in a place that is clearly visible to Users;

(g) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means to any individual or entity, including without limitation, Users; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or (h) attempt to access the Services other than through the means made available to the End Client by Onfido. Any breach of this paragraph will be deemed to be a material breach.

3.5. End Client acknowledges and agrees the services are based on information that was not collected, in whole or in part, for the purpose of serving as a factor in establishing a consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, employment, or any other similar purpose. Accordingly, End Client shall not use any services as part of its decision-making process for determining a consumer’s eligibility for credit, insurance or any other similar purpose. For the avoidance of doubt, this paragraph is not intended to prohibit the End Client from using the Services for the purpose of verifying a User’s identity.

3.6. End Client is responsible for maintaining the confidentiality of any password(s) or security routines it is given or sets to access and use the Services, and is fully responsible for all activities that occur under the End Client’s password(s) or security routines. The End Client agrees to notify the Partner immediately of any accidental or unauthorised access to or use of the Services, whether suspected or confirmed. In the event of a suspected or confirmed security incident impacting End Client’s use of the Services or other exigent circumstances, Partner reserves the right to immediately withdraw or suspend access to the Services and to alter the End Client’s password(s).

3.7. End Client will comply with the Onfido SDK License contained within Annex 2.

3.8. The End Client represents and warrants that it will not make the Services available to Users who are residents of any state of the United States at the time of using the Services (“US Users”). The End Client will promptly notify the Partner if, during the term of this Agreement, the End Client: (i) intends to permit access to the Services by US Users; or (ii) becomes aware of US Users accessing the Services in breach of the aforementioned representation and warranty. In the event that the Services are made available to US Users, Onfido shall have the right to immediately suspend the Partner and/or End Client’s and/or any User’s use of the Services without prior notice, and/or to terminate this Agreement immediately on written notice to the Partner.

4. PARTNER OBLIGATIONS

4.1. Data Processing. Partner will:

4.1.1. Process Personal Data only in accordance with this Agreement;

4.1.2. inform the End Client if, in its opinion, an instruction from the End Client infringes any Privacy Laws;

4.1.3. not disclose or otherwise make available any Personal Data to any third party service provider acting on Partner’s behalf without first (i) imposing contractual obligations on the third party recipient that are substantially similar to those imposed on Partner under this Agreement; and (ii) including the third party service provider in Partner’s list of third party service providers before sharing any Personal Data with that third party service provider. Partner shall make the list of third party service providers available to End Client, and if End Client objects to any third party service provider, End Client may terminate this Agreement. Partner agrees to remain liable to the End Client for the aforementioned third party service provider’s Processing of Personal Data;

4.1.4. cooperate and assist the End Client in responding to any User’s request to exercise their rights of access, rectification, erasure, restriction of Processing, data portability, objection to Processing, or any other rights available to the User under Privacy Laws;

4.1.5. enable the End Client to amend, correct, or delete Personal Data within the Services (unless storage of any Personal Data is required by applicable law, including Privacy Law);

4.1.6. where requested by the End Client and required under Privacy Laws, provide such assistance as the End Client reasonably requires (taking into account the nature of the Processing and the information available to Onfido) for the End Client to (i) conduct data protection impact assessments; and (ii) consult with data protection supervisory authorities;

4.1.7. take measures designed to ensure the reliability of all personnel who Process Personal Data by (i) performing background checks upon such personnel (where permissible under applicable law); (ii) assigning specific and necessity-based access privileges to such personnel; (iii) ensuring that such personnel have undergone training in data protection and privacy; and (iv) ensuring that such personnel are bound by obligations of confidentiality;

4.1.8. ensure that all Personal Data residing in the United Kingdom or European Economic Area is not transferred out of the United Kingdom or European Economic Area to data recipients in third countries which do not ensure an adequate level of data protection as determined by the European Commission or the Information Commissioner’s Office, unless the parties have entered into Information Commissioner and/or European Commission approved Standard Contractual Clauses or other data protection safeguards in compliance with Privacy Laws; and

4.1.9. provide other reasonably necessary assistance for the End Client to meet its compliance obligations under Privacy Laws with respect to the Service.

4.2. Security Safeguards.

4.2.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons and in accordance with a comprehensive information security policy (“Information Security Policy”), Partner will establish, maintain and comply with administrative, physical, technical and organizational safeguards designed to ensure the security and confidentiality of Personal Data and to prevent the unauthorised disclosure of, or access to, Personal Data.

4.2.2. Partner’s Information Security Policy will: (i) implement back-up and disaster recovery systems; (ii) continuously assess risks to the security of Personal Data by (1) assessing the likelihood and potential damage of such risks, taking into account the sensitivity and risk of the Personal Data, (2) identifying internal and external threats that could result in a Security Breach, and (3) conducting penetration testing; and (iii) take appropriate steps to protect against such risks.

4.3. Audits

4.3.1. Partner will keep at its normal place of business detailed, accurate and up-to-date records relating to the Processing of Personal Data by the End Client.

4.3.2. Partner shall, subject to confidentiality obligations, make available to the End Client all information (including by allowing for and contributing to audits andl inspections by the Partner) required and reasonably necessary to demonstrate Onfido’s compliance with its obligations under Privacy Laws.

4.3.3. Partner shall promptly resolve all data protection and security issues discovered by the End Client and reported to End Client that reveal a breach or potential breach by Partner of any of its obligations under this Agreement or Privacy Laws.

4.4. Security Breach. In the event Partner confirms any breach of security involving its facilities, networks or systems and any unauthorised disclosure of, or access to, Personal Data (each, a “Security Breach”), Partner will (i) without undue delay notify the End Client of the Security Breach; and (ii) provide all reasonable help for the End Client to investigate and remedy the Security Breach.

4.5. Return or Destruction of Personal Data. When Partner no longer needs to Process Personal Data to fulfill the purposes for processing identified in this Agreement, Partner will (a) cease all use of Personal Data; and (b) destroy all Personal Data (unless storage of any Personal Data is required by applicable law, including Privacy Laws).

ANNEX 2

ONFIDO STANDARD SDK LICENCE

INTERPRETATION

1.1 The definitions and rules of interpretation in this paragraph apply in this licence. For the purposes of this Annex, “Software” shall mean the SDK.

App: the application owned and developed by the Partner into which the Partner will integrate the Software.

Maintenance Release: a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software. 

Source Code Materials: the source code of the Software, and all technical information and documentation required from Onfido to enable the Partner to integrate the Software into the App.

Unless expressly specified otherwise, this licence will be governed by the terms of the Order and the Agreement.

2. LICENCE

2.1 In consideration of the Fees paid by the End Client to Partner, Onfido grants to the End Client a limited scope, non-exclusive, non-transferable (with the exception of as set out in paragraph 2.3 of this Annex) licence for the Term to use the Software in the App for the Purpose, provided that:

2.1.1 use of the Software will be restricted to use of the Software in object code form for the purpose of running document and facial recognition checks as part of the App;

2.1.2 the End Client may not use the Software other than as specified in paragraph 2.1.1 and this 2.1.2 without the prior written consent of Onfido;

2.1.3 the End Client will not, make backup copies of the Software;

2.1.4 the End Client has no right (and will not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part; and

2.1.5 to the extent the Software includes components covered by open source software (“OSS”) licenses (a) the terms of such OSS license(s) are available in GitHub or such other location notified by Onfido from time to time and will, in the event of any conflict with the terms and conditions set out herein, prevail in respect of the End Client’s use of such OSS; and (b) any restrictions prohibited by such OSS license that are contained within this Agreement will not apply to the applicable OSS.

2.2 The End Client will not use any information in relation to the integration or use of the Software to create any software whose expression is the same as or substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it. 

2.3 The End Client will not: (1), assign or novate the benefit or burden of this licence in whole or in part; (2) allow the Software to become the subject of any charge, lien or encumbrance; or (3) deal in any other manner with any or all of its rights and obligations under this Agreement, without the prior written consent of Onfido.

2.4 The End Client will notify Partner in writing as soon as it becomes aware of any, or suspects any unauthorized use of the Software by any person.

2.5 The End Client will permit Partner to inspect and have access to any records kept in connection with this licence, for the purposes of ensuring that the End Clientis complying with the terms of this licence, provided that Partner provides reasonable advance notice to the End Client of such inspections, which will take place at reasonable times.

3. EXPORT

Neither party will export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

4. USE OF THE SOFTWARE

4.1 The End Client accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the End Client or any particular App.

4.2 Onfido does not (1) provide any warranties in relation to the performance of any third party software (including the App) and will not be liable in the case of a fault caused in relation to the Software that arises from the App, any other third party software, or any actions of the End Client or a third party (2) warrant that the use of the Software will be uninterrupted or error-free.

4.3 In the event of a fault or defect, the End Client will provide all the information that may be necessary to assist Partner in resolving such defect or fault, including a documented example of any defect or fault, or sufficient information to enable Onfido to re-create the defect or fault.

4.4 Subject to clause 4.3, if, within the terms of this license and through no fault of its own (or any of it’s third parties or subcontractors) the End Client notifies Partner of any material defect or fault in the Software Onfido will repair or replace the Software.

4.5 The End Client will only use the SDK for the purpose of receiving the Onfido Services and not for any other purpose, or in connection with any other third party provider without Onfido’s prior written consent. The End Client further acknowledges that all Onfido Services will be provided by Onfido in connection with the SDK, and no other party (including the End Client) will use the SDK in connection with the provision of services similar to the Onfido Services during the Term, or at any time thereafter. In the event of a breach of this provision, End Client will indemnify Partner for all associated losses.

5. INTELLECTUAL PROPERTY RIGHTS

The End Client acknowledges that all Intellectual Property Rights in the Source Code Materials, the Software and any Maintenance Releases belong and will belong to Onfido, and the End Client will have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.

6. DURATION AND TERMINATION

This Licence will terminate on termination of the Order Form or in accordance with the terms of the Agreement, upon which (1) all rights granted to the End Client under this licence will cease; and (2) the End Client will promptly destroy or return to Partner (at Partner’s option) all copies of the Software and related documents then in its possession, custody or control and, in the case of destruction, certify to Partner that it has done so.

SCHEDULE 4

SERVICES SOLD BY MODULES

All new Clients from 8 July 2022 shall be entitled to purchase Services by Modules. Clients may purchase one or more Module(s) and the following additional terms shall apply:

1. The Client shall pay a one-off set-up fee, which shall be specified on the Order Form and invoiced on the Client’s execution of the Order Form.

2. The Client shall pay a per development fee (which shall be specified on the Order Form) for each Module purchased, which shall be invoiced monthly in advance.

3. Clause 10.2 of this Agreement shall not apply in respect of the purchase of Services by Modules.

 

Last updated: December 2021