Conveyancing Data Services Limited, as part of its core business activities, supplies a range of conveyancing and company search reports for its clients on the terms and conditions ("Conditions") set out below. These Conditions cannot be varied unless agreed in writing by a director of Conveyancing Data Services Limited.
Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words shall have the meanings set opposite them:
"Conveyancing Data Services Report" means any Report that we produce on your behalf that is not a Third Party Report.
"Charges" means our charges for providing the Services, which will be notified to you on the Order Form.
"Confirmation of Order" means the earlier of our acceptance of your Order (whether by telephone, facsimile or electronic means) or our delivery of the Report.
"Intellectual Property Rights" means any enforceable intellectual property right including without limitation copyright, database right, trademark, patent, trade secret or design right.
"Order" means your request for us to provide the Services, which you place Online or by completing an Order Form and sending it to us by facsimile, post or by electronic means or orally confirming the details of the Order by telephone.
"Order Form" means our Order Form from time to time.
"Property" means the property address or location for which you require a Report.
"Report" means any report(s) that you have asked us to deliver to you as detailed in the Order Form whether a Conveyancing Data Services Report or a Third Party Report.
"Services" means our delivery of Reports to you.
"Third Party Report" means any Report that we procure from a third party [by acting as agent] on your behalf.
"us", "we" or "our" means Conveyancing Data Services Limited with company registration number 07159470 whose registered office is at 4 The Pavilions, Ruscombe Business Park, Ruscombe, RG10 9NN.
"Working Day" means Mondays to Fridays except bank and public holidays.
"you" or "your" means the person firm or company who instructs us to provide them with a Report either on their own behalf or as agent of their client.
1.2 Headings used in these Conditions are for convenience only and shall not affect their interpretation.
1.3 If there is a conflict between an Order and these Conditions, these Conditions will prevail.
2. THE SERVICES
2.1 We will not be obliged to accept any Order and we may refuse to provide the Services at any time without giving any reason. No contract for Services will come into force until the Confirmation of Order.
2.2 Each Order if accepted by us will constitute a separate and severable contract.
2.3 We will use reasonable endeavours to ensure that the information contact within any Report is accurate at the date of its publication. You accept, however, that information on which any Report is based may be subject to change from the date of its publication and we cannot be held liable for failing to include or omit any information in the Report, which becomes publicly available after the date of publication.
2.4 Any indication that we may give as to the time in which we will deliver the Reports will be a good faith estimate only. We will use reasonable endeavours to deliver the Reports within the time-scale that we have estimated. However, time of delivery of Reports is not of the essence.
2.5 These Conditions apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 In providing search reports and services we will comply with the Code of Practice for Search Compilers and Retailers.
2.7 [Where any part of the Services are to be provided by a third party we will notify you in [the Confirmation of Order]].
3.1 Unless expressed otherwise, the Charges will include VAT at the applicable rate.
3.2 You will be primarily liable to pay us the Charges including any applicable VAT. You will pay us the Charges within 14 days (unless shown otherwise) of the date of our invoice without deduction or set off. If you fail to pay us the Charges in accordance with the payment terms set out in our invoice, we reserve the right to do one or more of the following:
3.2.1 charge interest on the amount outstanding in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) from the date of the invoice until we receive full payment in cleared funds both before as well as after any judgement;
3.2.2 suspend or terminate any Services that we have agreed to provide to you provided that any such suspension or termination shall not affect your liability to pay us such Charges as have accrued to us at the end of such suspension or termination.
3.3 If we are required to incur additional expenses to third parties for search fees or other disbursements to enable us to provide the Services then we are authorised by you to pay such third parties and in doing so we will act as your agent. However the responsibility for payment of any additional expenses remains with you and will be added to our invoice.
4. YOUR OBLIGATIONS
4.1 You agree to ensure that the information that you supply to us in the Order including without limitation details of the Property is complete, accurate and up to date. You will notify us immediately upon becoming aware of any inaccuracy contained within the Order.
4.2 You agree that any Report that we may deliver to you is delivered on the understanding that it is only for your use and for the purpose that you have disclosed to us.
4.3 You will procure that any client of yours for whom you place an Order accepts and agrees to be bound by these Conditions and any provisions contained within the Reports. You will on demand provide us with written confirmation of your compliance with this clause 4.3.
4.4 If there is any conflict between a provision of any Third Party Reports relating to your permitted use of the Reports and the corresponding provisions in these Conditions, the provisions of the Reports will prevail.
4.5 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligations listed in this clause 4 ("Your Default"):
4.5.1 we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services;
4.5.2 we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform Services; and
4.5.3 it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
5.1 Should you wish to cancel or re-schedule an Order, you agree to give us as much notice (in writing) as is reasonably practicable. However, you will not be entitled to obtain a refund of the Charges if you cancel on or after the date of Confirmation of Order.
5.2 Cancellation of an Order will only be refunded if we have not incurred any costs for the Order.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Any and all Intellectual Property Rights in the Conveyancing Data Services Reports shall vest in us and remain our property. [We disclaim all proprietary rights including, without limitation, Intellectual Property Rights in Third Party Reports.]
6.2 You will not acquire nor will you attempt to register any Intellectual Property Rights in any Reports whether on your own behalf or on behalf of any Client. You further agree not to use the Report in whole or part other than is expressly permitted by these Conditions.
7. LIMITATION OF LIABILITY
7.1 We cannot accept any liability for any error in a Report, which is based on any error or inaccuracy in a public register. Nor will be liable for any information contained within a Report, which is based on information that we have obtained from a third party (not being information derived from the public register).
7.2 We cannot accept any responsibility for any inaccuracy or error in the Report that is based on incomplete or inaccurate information supplied by you.
7.3 Subject to any other provisions in these Conditions, we will not be liable to you for any loss, damages, costs or expenses caused directly or indirectly by a delay in Delivery.
7.4 We will not be liable for any loss of actual or anticipated profits or savings, loss of business, loss of opportunity or for any special, indirect or consequential loss whether arising from a breach of the Conditions or negligence in performing the Services even if we were advised of or knew of likelihood of such loss occurring.
7.5 Subject to the foregoing, our entire aggregate liability to you for direct loss arising from our being in breach of these Conditions or negligent in the course of performing the Services will not exceed £10,000,000 per claim.
7.6 Nothing in these Conditions limits or excludes our liability for:
7.6.1 death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
7.6.2 fraud or fraudulent misrepresentation; or
7.6.3 breach of the terms implied by section 2 of the Supply of Goods are Services Act 1982 or any other liability which cannot be limited or excluded by law.
8. FORCE MAJEURE
8.1 We will not be liable for any failure to perform the Services due to an event beyond our reasonable control. If our performance of the Services is delayed due to an event beyond our reasonable control, we will notify you promptly of the reason for such a delay and you agree to give us such an extension to perform the Services as is reasonable in the circumstances.
9.1 You may not assign, charge or transfer any of your obligations under the Conditions without our prior written consent.
9.2 We may assign and/or sub-contract any contract for Services at any time on notice to you.
10.1 These Conditions constitute the entire agreement between you and us in respect of the Services and supersede any earlier arrangements, understandings, promises, or agreements made between the parties in respect of the Services.
10.2 You acknowledge that in instructing us to provide the Services, you do not do so on the basis of any representation, warranty or provision not expressly contained within these Conditions.
10.3 If at any time, any one or more of these Conditions are held to be unenforceable, illegal or otherwise invalid in any respect, such enforceability, illegality or invalidity shall not affect the remaining Conditions, which shall remain in full force and effect.
10.4 Any failure by us to enforce a breach of the Conditions by you will not be deemed to be a waiver of any subsequent breach of these Conditions that you may make.
10.5 Nothing in these Conditions shall be deemed to create or be deemed to create a partnership or joint venture between us and you or, unless otherwise expressly stated, the relationship of principal and agent or employer and employee.
10.6 These Conditions will be governed exclusively by English law. You and we agree to submit exclusively to the jurisdiction of the English courts.
10.7 You and we agree that no third party will be afforded any rights under these Conditions.
10.8 The material on our website relating to insurance products is intended to provide general information only. For specific coverage and exclusions, please refer to the appropriate policy wording.
10.9 If you make a complaint and we are unable to resolve it to your satisfaction you may refer the complaint to The Property Ombudsman scheme (website www.tpos.co.uk, email: firstname.lastname@example.org). We will co-operate fully with the Ombudsman during an investigation and comply with their final decision.
11. DATA PROTECTION
11.1 In this clause 11 the following words shall have the meanings set out opposite them:
“Controller”, “Data Subject”, “Personal Data”, “Processor” and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR.
“Data Protection Laws“ means, as binding on Us and You or the Services (i) the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR; (ii) any laws which implement any such laws; and (iii) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
“GDPR“ means the General Data Protection Regulation (EU) 2016/679.
“Protected Data“ means Personal Data received from or on behalf of You in connection with the performance of Our obligations under these Conditions.
"Sub-Processor" means any agent, subcontractor or other third party (excluding its employees) engaged by us for carrying out any processing activities on behalf of you in respect of the Protected Data.
Compliance with Data Protection Laws
11.2 The parties agree that You are a Controller and that We are a Processor for the purposes of processing Protected Data pursuant to these Conditions. You shall at all times comply with these Conditions and all Data Protection Laws in connection with the processing of Protected Data including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws. You shall ensure all instructions given by You to Us in respect of Protected Data (including these Conditions) shall at all times be in accordance with Data Protection Laws.
11.3 We shall process Protected Data in compliance with the obligations placed on Us as Processors under Data Protection Laws and these Conditions.
11.4 You shall not unreasonably withhold, delay or condition Your agreement to any change requested by Us in order to ensure that the Services and We (and each Sub-Processor) can comply with Data Protection Laws.
11.5 You warrant, represent and undertake that:
11.5.1 all data sourced by You for use in connection with the Services shall comply in all respects, including in terms of its collection, storage and processing (which shall include You providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects), with Data Protection Laws; and
11.5.2 You are satisfied that Our processing operations are suitable for the purposes for which You propose to use the Services and engage Us to process the Protected Data; and We have sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of Data Protection Laws.
11.6 Clauses 11.7.2, 11.13, 11.15, 11.16, 11.17 and 11.18 shall apply from when the GDPR applies on 25 May 2018, but not earlier.
11.7 We shall:
11.7.2 without prejudice to clause 5.1, if We believe that any instruction received by Us from You is likely to infringe the Data Protection Laws We shall promptly inform You and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing provided that to the maximum extent permitted by mandatory law, We shall have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities arising from or in connection with any processing in accordance with Your instructions following Your receipt of that information.
11.8 Taking into account the state of technical development and the nature of processing, We shall implement and maintain the technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access in accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with these Conditions, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, We shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(a) to 32(d) (inclusive) of the GDPR (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of Our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by Us).
11.9 We reserve the right to update our technical and organisational measures and will not materially decrease the overall security of the Services under these Conditions.
11.10 Any additional technical and organisational measures requested by You shall be at Your cost and expense.
Sub-processing and personnel
11.11 We shall:
11.11.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except Our or Our Sub-Processor’s own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without Your written authorisation;
11.11.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Third Party Data Provider under a written contract containing materially the same obligations as under this clause 5 that is enforceable by Us and ensure each such Sub-Processor complies with all such obligations;
11.11.3 remain fully liable to You under this clause 11 for all the acts and omissions of each Sub-Processor as if they were Our own; and
11.11.4 ensure that all persons authorised by Us or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
11.12 You authorise the appointment of Sub-Processors to enable Us to deliver the Services to You. If You notify Us in writing of any objections (on reasonable grounds) to our use of a Sub-Processor:
11.12.1 We shall work with you in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that Sub-Processor; and
11.12.2 where such a change cannot be made and We choose to retain the Sub-Processor, We shall notify You at least 14 days prior to the authorisation of the Sub-Processor to process Personal Data and You may discontinue using the relevant services and terminate the relevant portion of the Services which require the use of the proposed Sub-Processor immediately upon written notice to Us, such notice to be given by You within 30 days of having been so notified by Us.
11.13 We shall (at Your cost):
11.13.1 assist You in ensuring compliance with Your obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Us; and
11.13.2 taking into account the nature of the processing, assist You (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of Your obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
11.14 You agree that We may transfer Protected Data, for the purpose of providing the Services, to countries outside the European Economic Area (EEA), provided all transfers by Us of Protected Data in accordance with this clause 11.14 shall (to the extent required under Data Protection Laws) be effected by way of appropriate safeguards and in accordance with Data Protection Laws.
Audits and processing
11.15 We shall maintain, in accordance with Data Protection Laws binding on Us, written records of all categories of processing activities carried out on Your behalf.
11.16 We shall, in accordance with Data Protection Laws, make available to You such information that is in Our possession or control as is necessary to demonstrate Our compliance with the obligations placed on Us under this clause 5 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by You (or another auditor mandated by You) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 11.16).
11.17 Our compliance with the obligations in clause 11.16 is subject to You:
11.17.1 giving Us reasonable prior notice of such information request, audit and/or inspection being required by You;
11.17.2 ensuring that all information obtained or generated by You or Your auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure to any supervisory authority or as otherwise required by law);
11.17.3 ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to Our business, a Sub-Processor’s business and the business of Our customers; and
11.17.4 paying Us reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.
11.18 If required by Data Protections Laws, We shall notify You without undue delay and in writing (providing the relevant details) on becoming aware of any Personal Data Breach in respect of any Protected Data.
11.19 On the end of the provision of the Services relating to the processing of Protected Data, at Your cost and Your option, We shall either return all of the Protected Data to You or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Us to store such Protected Data. This clause 11.19 shall survive termination or expiry of our agreement.