YOUR ATTENTION IS DRAWN IN PARTICULAR TO CLAUSE 12 (LIMITATION OF LIABILITY)
1. RIGHTS OF USE AND SERVICES
1.1 Subject to the Customer purchasing the Services and these Terms, Brightchecker hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services during the Term solely for the Customer’s internal business operations.
1.2 The Customer shall ensure that only Authorised Users use the Services and that such use is at all times in accordance with these Terms. The Customer shall ensure that Authorised Users are at all times while they have access to the Services the employees or contractors of the Customer. The Customer shall:
(a) be liable for the acts and ommissions of the Authorised Users as if they were its own;
(b) not provide access to (or permit access by) anyone other than an Authorised User; and
(c) procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Customer under our agreement, including all obligations and restrictions relating to the Supplier’s Confidential Information.
1.3 The Customer acknowledges that:
(a) use of the Services is at all times subject to the Customer’s compliance with these Terms; and
(b) the Services do not include any services, systems, costs, or equipment required to access the internet or transmit or receive data, or dedicated data back up or disaster recovery facilities.
2.1 Brightchecker shall use commercially reasonable endeavours to make the Services 99.5% available except for the following:
(a) downtime or unavailability outside Normal Business Hours;
(b) planned maintenance at any time; and
(c) unscheduled maintenance, provided that Brightchecker has used reasonable endeavours to give the Customer at least 6 hours’ notice in advance.
2.2 Brightchecker will, as part of the Services and at no additional cost to the Customer, provide the Customer with Brightchecker’s standard customer support services during Normal Business Hours.
3. SECURITY OF CUSTOMER DATA
3.1 Customer Data shall at all times remain the property of the Customer, subject to clause 9.3. The Customer acknowledges that Brightchecker has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Services) complies with all applicable laws and Intellectual Property Rights.
3.2 The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of its businesses. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly and extracts it from the Services prior to the termination or expiry of the Term or the cessation or suspension of any of the Services. To the maximum extent permitted by applicable law, Brightchecker shall not be responsible (under any legal theory, including in negligence) for any loss of availability of or corruption to any Customer Data.
4. PROCESSING OF CUSTOMER DATA
4.1 Both parties will comply with all applicable requirements of the Data Protection Laws and Brightchecker’s DPA. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Laws or clause 3.
5. THIRD PARTY PROVIDERS
The Platform may enable or assist the Customer to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and it does so solely at its own risk. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Brightchecker. Brightchecker does not endorse or approve any third party sites, and the Customer visits them at its own risk and with no liability on Brightchecker’s part.
6. BRIGHTCHECKER’S OBLIGATIONS
6.1 Brightchecker undertakes that the Services will be supplied with reasonable skill and care and will conform in all material respects with their description.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance caused by use of the Services contrary to Brigthchecker’s instructions, or modification or alteration of the Services.
6.3 If the Services do not conform with the foregoing undertaking, Brightchecker will use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Brightchecker:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7. CUSTOMER’S OBLIGATIONS
7.1 The Customer shall not access, store, distribute, upload, or transmit any any thing or device (including any content, software, code, file or programme) which:
(a) may adversely affect the operation of the Services, any hardware or infrastructure used by Brightchecker, or the user experience of the Customer other customers; or
(b) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property, and
Brightchecker reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
7.2 The Customer shall not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Services in order to build a product or service which competes with the Services.
7.3 The Customer shall:
(a) comply with all applicable laws and regulations with respect to its activities under this agreement;
(b) ensure that its employees, agents, and contractors use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any breach by them of this agreement;
(c) obtain and shall maintain all necessary licences, consents, and permissions necessary;
(d) ensure that its network and systems are suitable and capable of making use of the Services; and
(e) be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Brightchecker’s, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. CHARGES,PAYMENT AND CREDITS
8.1 The Customer shall pay the Fees to Brightchecker in accordance with Brightchecker’s standard payment process. We use Stripe to collect and process payments and deal with any refunds, which means that we never see your personal financial details.
8.2 All amounts and fees stated or referred to in this agreement shall be payable in pounds sterling, are non-cancellable and non-refundable, and are exclusive of value added tax. Brightchecker shall be entitled to increase the Fees upon 90 days’ prior notice to the Customer. Increases shall be advertised on the Platform.
8.3 Conditions of credits:
(a) The Fees are exchanged for credits. Credits are used to pay for components of the Services and are not refundable or re-exchangable for cash.
(b) Credits expire after 6 months and any credit balance left over is not redeemable for cash or refundable.
(c) The Customer must have active credits to its account otherwise it will lose access to the customised components of the Services such as its custom templates and revert to the basic free version of the Platform.
8.4 Any additional services shall be charged at Brightchecker’s standard day rates in force from time to time.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that Brightchecker and/or its licensors own all intellectual property rights in the Platform, Software and Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform, Software or Services.
9.2 Brightchecker confirms that it has all the rights in relation to the Platform, Software or Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.3 The Customer grants Brightchecker an irrevocable, royalty-free, worldwide, perpetual, sub-licenceable licence to use templates generated by the Customer for any purpose, including (but not limited to) to make available to other customers to freely use.
10.1 Each party shall maintain the confidentiality of the other’s Confidential Information and shall not without the prior written consent of the other, disclose, copy or modify the other’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under our Agreement.
10.2 The provisions of this clause 10 shall not apply to information which:
(a) is or comes into the public domain through no fault of a party, its officers, employees, agents or contractors;
(b) is lawfully received by a party from a third party free of any obligation of confidence at the time of its disclosure;
(c) is independently developed by a party (or any person acting on its or their behalf), without access to or use of such information; or
(d) is required by law, by court or governmental or regulatory order to be disclosed.
10.3 The above provisions of this 10 shall survive termination of this agreement, however arising.
11. IP INDEMNITY
11.1 Brightchecker shall defend the Customer against any claim that the Services infringes any third party’s Intellectual Property Rights, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Brightchecker is given prompt notice of any such claim;
(b) the Brightchecker provides reasonable co-operation to Brightchecker in the defence and settlement of such claim, at Brightchecker’s expense; and
(c) Brightchecker is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, Brightchecker may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall Brightchecker, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Brightchecker; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by Brightchecker; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from Brightchecker or any appropriate authority.
11.4 This clause 11 sets out the Customer’s sole and exclusive rights and remedies, and Brightchecker’s entire obligations and liability, for infringement of any Intellectual Property Right.
12. LIMITATION OF LIABILITY
12.1 Except as expressly and specifically provided in this agreement:
(a) Brightchecker shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Brightchecker by the Customer in connection with the Services, or any actions taken by Brightchecker at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services are provided to the Customer on an “as is” basis.
12.2 Brightchecker shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement.
12.3 Brightchecker’s total aggregate liability in contract (including in respect of the indemnities granted to the Customer), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid under this agreement.
13. TERM AND TERMINATION
13.1 This agreement shall start on the Effective Date and shall continue for the period covered by the Fees or, if later, for as long as the Customer has active credits to its account (see clause 8.3). At the end of the relevant period this agreement shall automatically roll over and continue for a further period of the same duration as the previous one, provided that the Customer continues to pay all Fees in accordance with the purchased package. Either party may terminate the agreement at any time by providing one month’s written notice in advance.
13.2 In the event of termination for any reason or cancellation of the Customer’s subscription:
(a) Fees paid in advance or converted into credits are not refundable;
(b) if the Customer has no credits its account will be disabled;
(c) if the Customer has left over credits it can still access the Platform and the free, basic surveys but will lose access to any customised surveys and once it has used its last credit its account will be disabled.
13.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the agreement (including failure to pay any amount due under the agreement) and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
13.4 Termination of the agreement shall not affect any of the parties' rights, remedies, obligations or liabilities that have accrued as at termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination. Any provision of the agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13.5 On termination of this agreement for any reason:
(a) all licences granted under this agreement to the Customer shall immediately terminate and the Customer shall immediately cease all use of the Services; and
(b) Brightchecker may destroy or otherwise dispose of any of the Customer Data in its possession.
To the maximum extent permitted by law, Brightchecker shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of the agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by Force Majeure or any breach of this Agreement by the Customer.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
18.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. ENTIRE AGREEMENT
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
20.1 The Customer shall not, without the prior written consent of Brightchecker, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.2 Brightchecker may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
24. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
26.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised User: means a user authorised by the Customer to use the Platform in accordance with these Conditions.
Brightchecker: Housecheckr Services Limited (company number 11554446) trading as Brightchecker.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: means all information of a confidential nature disclosed in whatever form by a party directly or indirectly to the other party and includes all know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind.
Controller, processor, data subject, personal data, personal data breach, processing, sub-processor and appropriate technical and organisational measures: as defined in the Data Protection Laws.
Customer: the party registered to buy the Services through the Platform.
Customer Data: the data inputted by the Customer, its end users, or Brightchecker on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including the UKGDPR; the GDPR; the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Effective Date: the date the Customer creates their account and the agreement comes into force.
Fees: the fees payable by the Customer to Brightchecker set out on the Platform.
Force Majeure: means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under our Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet.
GDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679.
Intellectual Property Rights: means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing;
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Platform: the platform known as Brightchecker incorporating the Software.
Protected Data: means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under this Agreement.
Service Level Commitment: the service levels set out in Schedule 1.
Software: the online property surverying and reporting software applications provided by Brightchecker on the Platform as part of the Services.
Services: means the priovision of the Software via the Platform;).
Term: the term of this agreement.
UKGDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time).
26.2 in the event of any conflict in respect of the provisions of our agreement and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
(a) these Terms; and
(b) any policies or addendums published by Brightchecker.
26.3 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
26.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
26.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
26.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
26.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
26.8 A reference to writing or written includes e-mail.
26.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.