1.

Interpretation

1.1.

The definitions and rules of interpretation in this clause apply in this Agreement.

"Appraised Services" or “Services”;

the subscription based services which includes creating and/or downloading Reports by the Customer under this Agreement via https://aprao.com or any other website notified to the Customer by Appraised from time to time.

“Authorised Recipients”;

persons who are expressly authorised by the Customer to use a copy of the Report for their Internal Use, and shall not include any persons who are competitors of Appraised.

"Authorised Users";

those employees of the Customer who are authorised by the Customer to access and use the Appraised Services and the Documentation, as further described in clause 3.2.4.

"Business Day";

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

"Change of Control";

the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

"Confidential Information";

information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.6 or clause 13.7.

“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures”;

as defined in the Data Protection Legislation.

"Customer Data";

the data input by the Customer, Authorised Users, or Appraised on the Customer's behalf for the purpose of using the Appraised Services or facilitating the Customer's use of the Appraised Services.

"Data Protection Legislation";

the General Data Protection Regulation ((EU) 2016/679) (GDPR), the Data Protection Act 2018, regulations and secondary legislation in the UK, as amended or updated from time to time.

"Documentation";

the document made available to the Customer by Appraised online via the Site or such other web address notified by Appraised to the Customer from time to time which sets out a description of the Appraised Services and the user instructions for the Appraised Services.

"Effective Date";

the date of this Agreement.

"Initial Subscription Term";

the initial term of the respective business package purchased by Customer from Appraised’s website.

“Internal Use”;

internal business purposes only of the Customer, its Authorised Users and its Authorised Recipients, and specifically excludes any use, distribution or communication of the Report by or to anyone not authorised under this Agreement.

"Mandatory Policies";

Appraised’s business policies listed in Schedule 1, as amended by notification to the Customer from time to time.

"Normal Business Hours";

8.00 am to 6.00 pm local UK time, each Business Day.

"Renewal Period";

the period described in clause 17.1.

“Report(s)”;

Property development appraisal, feasibility reports and such other reports as may be downloaded as part of the Appraised Services.

"Software";

the online software applications provided by Appraised as part of the Appraised Services.

"Subscription Fees";

the subscription fees payable by the Customer to Appraised for the User Subscriptions, as set out in the respective business package descriptions on Appraised’s website.

"Subscription Term";

has the meaning given in clause 17.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

"Support Services";

support in relation to the Appraised Services as set out in Clause 6.

UK Data Protection Legislation:

all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); 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.

"User Subscriptions";

the user subscriptions purchased by the Customer pursuant to clause 11.1 which entitle Authorised Users to access and use the Appraised Services and the Documentation in accordance with this Agreement.

"Virus";

any thing or device (including any software, code, file or programme) which may: 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; 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 adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2.

Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3.

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.

1.4.

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5.

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

1.6.

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.

1.7.

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.

2.

Order Process

2.1.

These terms and conditions apply to your order and our supply of Appraised Services for the benefit of your Authorised Users and Authorised Recipients. These terms 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.

2.2.

You will create an account for purchasing User Subscriptions by following the on-screen prompts on our Site. We will ask you to provide information about your Authorised Users. Your request to create an account on our Site is an offer by you to purchase the applicable User Subscriptions subject to these terms.

2.3.

Our acceptance of your offer takes place when we send an email to you to confirm your account creation (“Account Creation Confirmation”), at which point and on which date (“Commencement Date”) the Contract between you and us will come into existence. The Contract will relate only to the services as described in the Account Creation Confirmation. If we are unable to accept your request to create an account for any reason, we will inform you of this by email and we will not process your request. If you have already made a payment, we will refund you the full amount.

2.4.

The business package descriptions on our Site sets out the type of User Subscriptions, their pricing, subscription terms and any relevant information related to the services (“Appraised Services”) that will be made available to your Authorised Users under the business package you have purchased. The Appraised Services are subject to the limitations set out in the business package description and purchased on a subscription basis for the number of Authorised Users and term agreed set out in the User Subscription.

3.

User subscriptions

3.1.

Subject to the Customer purchasing the User Subscriptions in accordance with clause 4.3 and clause 11.1, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Appraised hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub licences, (i) to permit the Authorised Users to access, download, store, and make copies of the Report for Internal Use during the Subscription Term and (ii) to provide a copy of the Report to Authorised Recipients for Internal Use during the Subscription Term. The Customer will be responsible and liable to Appraised for its Authorised Users’ and Authorised Recipients’ compliance with all terms of this Agreement and will serve as Appraised’s primary point of contact in all matters.

3.2.

In relation to the Authorised Users, the Customer undertakes that:

3.3.

The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Appraised Services that:

3.3.1.

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

3.3.2.

facilitates illegal activity;

3.3.3.

depicts sexually explicit images;

3.3.4.

promotes unlawful violence;

3.3.5.

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

3.3.6.

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

and Appraised 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.

3.4.

The Customer shall not:

3.4.1.

except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

3.4.2.

access all or any part of the Appraised Services and Documentation in order to build a product or service which competes with the Appraised Services and/or the Documentation; or

3.4.3.

use the Appraised Services and/or Documentation to provide services to third parties; or

3.4.4.

subject to clause 25.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Appraised Services and/or Documentation available to any third party except the Authorised Users, or

3.4.5.

attempt to obtain, or assist third parties in obtaining, access to the Appraised Services and/or Documentation, other than as provided under this clause 3; and

3.5.

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Appraised Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Appraised.

3.6.

The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

4.

Additional user subscriptions

4.1.

Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and Appraised shall grant access to the Appraised Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

4.2.

Until such time as the purchase of additional User Subscriptions can be made through the online account, if the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Appraised in writing. Appraised shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request, such approval not to be unreasonably withheld). Where Appraised approves the request, Appraised shall activate the additional User Subscriptions within 5 business days of its approval of the Customer's request.

4.3.

If Appraised approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Appraised's invoice, pay to Appraised the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Appraised for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

5.

 Services

5.1.

Appraised shall, during the Subscription Term, provide the Appraised Services and make available the Documentation to the Customer on and subject to the terms of this Agreement for Customer’s use and use by Authorised Recipients.

5.2.

Appraised shall use commercially reasonable endeavours to make the Appraised Services available 24 hours a day, seven days a week, except for:

5.2.1.

planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

5.2.2.

unscheduled maintenance performed outside Normal Business Hours, provided that Appraised has used reasonable endeavours to give the Customer reasonable notice in advance.

6.

Support

6.1.

Support is the provision of assistance with general enquires in connection with the Software and, where possible, correction and remedy of faults, defects, errors, bugs and failures to comply with any warranty in this Agreement.

6.2.

The Customer acknowledges and accepts that Appraised personnel are not qualified to provide advice pertaining to the information content of the Software. The Customer acknowledges and accepts that any ancillary assistance which is provided on such matters during the provision of Support is not professional advice and is not intended to amount to advice on which reliance should be placed.

6.3.

If agreed by the Parties in writing, Appraised will provide Support through a telephone help-desk, by email or remote computer connection, subject to the Customer making available the required connections.  In each case, Appraised shall determine the most effective medium for Support.

6.4.

Support will be provided between 9am to 5pm BST.

6.5.

Support may only be initiated by persons agreed between the Parties (“Nominated Support Contacts”) and as may be changed by the Parties from time to time. 

6.6

The Customer Nominated Support Contacts will provide first line support to Authorised Users. The Customer Nominated Support Contacts will consolidate enquiries from Users and take any steps reasonably required to ensure effective communication between Appraised and Authorised Users.

6.7.

Support is provided on a “reasonable use” basis.  In the event that Appraised considers the Customer’s use of Support to be excessive then Appraised may charge additional fees on a time and materials basis at its then-current rates and may require the Customer to undertake relevant training.

7.

 Customer data

7.1.

The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

7.2.

Appraised shall follow its archiving procedures for Customer Data as set out in its back up policy (“Back-Up Policy”) available at https://aprao.com or such other website address as may be notified to the Customer from time to time, as such document may be amended by Appraised in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Appraised shall be for Appraised to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Appraised in accordance with the archiving procedure described in its Back-Up Policy. Appraised shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Appraised to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable). 

7.3.

Appraised shall, in providing the Appraised Services, comply with its Privacy Policy relating to the privacy of the Customer Data available at https://aprao.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Appraised in its sole discretion.

8.

Third party providers

8.1.

The Customer acknowledges that in the event that the Appraised Services enables or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites, that it does so solely at its own risk. Appraised 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, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Appraised. Appraised recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Appraised does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Appraised Services.

8.2.

Payment for the Services shall be made through third party payment providers, on such third party payment provider’s standard terms and conditions currently available at www.gocardless.com/legal/merchants and as amended from time to time by the third party payment provider in its sole discretion.

9.

Supplier's obligations

9.1.

Appraised undertakes that the Appraised Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

9.2.

The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Appraised Services contrary to Appraised's instructions, or modification or alteration of the Appraised Services by any party other than Appraised or Appraised's duly authorised contractors or agents. If the Appraised Services do not conform with the foregoing undertaking, Supplier will, at its expense, 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 9.1.  Notwithstanding the foregoing, Appraised:

9.2.1.

does not warrant that the Customer's use of the Appraised Services will be uninterrupted or error-free; or that the Appraised Services, Documentation and/or the information obtained by the Customer through the Appraised Services will meet the Customer's requirements; and

9.2.2.

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 Appraised Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.3.

This Agreement shall not prevent Appraised from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

9.4.

Appraised warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

10.

Customer's obligations

10.1.

The Customer shall:

10.1.1.

provide Appraised with:

10.1.1.1.

all necessary co-operation in relation to this Agreement; and

10.1.1.2.

all necessary access to such information as may be required by Appraised;

in order to provide the Appraised Services, including but not limited to Customer Data, security access information and configuration services;

10.1.2.

without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

10.1.3.

carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Appraised may adjust any agreed timetable or delivery schedule as reasonably necessary;

10.1.4.

ensure that the Authorised Users and Authorised Recipients use the Appraised Services and the Documentation in accordance with the terms and conditions of this Agreement. The Customer shall be responsible for any Authorised User's and Authorised Recipient’s breach of this Agreement;

10.1.5.

obtain and shall maintain all necessary licences, consents, and permissions necessary for Appraised, its contractors and agents to perform their obligations under this Agreement, including without limitation the Appraised Services;

10.1.6.

ensure that its network and systems comply with the relevant specifications provided by Appraised from time to time; and

10.1.7.

be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Appraised's data centres, 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. The Customer shall also be responsible for securing the device(s) through which its employees access and/or use the Appraised Services.

11.

 Charges and payment

11.1.

The Customer shall pay the Subscription Fees to Appraised for the User Subscriptions in accordance with this clause 11 and the support fees in accordance with clause 6.

11.2.

The Customer shall on the Effective Date provide to Appraised’s authorised third party payment provider valid, up-to-date and complete credit card details acceptable to the third party payment provider and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

11.2.1.

its credit card details to the third party payment provider, the Customer hereby authorises the third party payment provider to bill such credit card:

11.2.1.1.

on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

11.2.1.2.

subject to clause 17.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

11.2.2.

its approved purchase order information to Appraised, Appraised shall invoice the Customer:

11.2.2.1.

on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

11.2.2.2.

subject to clause 17.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 30 days after the date of such invoice.

11.3.

If Appraised has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of Appraised:

11.3.1.

Appraised may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Appraised Services and Appraised shall be under no obligation to provide any or all of the Appraised Services while the invoice(s) concerned remain unpaid; and

11.3.2.

interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

11.4.

All amounts and fees stated or referred to in this Agreement:

11.4.1.

shall be payable in pounds sterling;

11.4.2.

are, subject to clause 16.3.2, non-cancellable and non-refundable;

11.4.3.

are exclusive of value added tax, which shall be added to Appraised's invoice(s) at the appropriate rate.

11.5.

Appraised shall from time to time notify the Customer of allowable storage space applicable to Customer. If, at any time whilst using the Appraised Services, the Customer exceeds the amount of storage space allocated, Appraised reserves the right to charge the Customer, and the Customer shall pay, Appraised's then current excess data storage fees.

11.6.

Appraised shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 4.3, the support fees payable pursuant to clause 6 and/or the excess storage fees payable pursuant to clause 11.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer.

12.

Proprietary rights

12.1.

The Customer acknowledges and agrees that Appraised and/or its licensors own all intellectual property rights in the Appraised Services and the Documentation. 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 Appraised Services or the Documentation.

12.2.

Appraised confirms that it has all the rights in relation to the Appraised Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

13.

 Confidentiality

13.1.

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that: 

13.1.1.

is or becomes publicly known other than through any act or omission of the receiving party;

13.1.2.

was in the other party's lawful possession before the disclosure;

13.1.3.

is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

13.1.4.

is independently developed by the receiving party, which independent development can be shown by written evidence.

13.2.

Subject to clause 13.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

13.3.

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

13.4.

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

13.5.

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

13.6.

The Customer acknowledges that details of the Appraised Services, and the results of any performance tests of the Appraised Services, constitute Appraised's Confidential Information.

13.7.

Appraised acknowledges that the Customer Data is the Confidential Information of the Customer.

13.8.

No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

13.9.

The above provisions of this clause 13 shall survive termination of this Agreement, however arising.

13.10.

In performing its obligations under this Agreement the Customer shall comply with the Mandatory Policies.

14.

Warranties

APPRAISED WARRANTS THAT: (1) IT HAS FULL RIGHTS AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT; AND (2) IT WILL PERFORM THE SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER. EXCEPT FOR THE FOREGOING, THE APPRAISED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, APPRAISED DISCLAIMS ANY AND ALL OTHER WARRANTIES, (EXPRESS, IMPLIED OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE OR COURSE OF PERFORMANCE). APPRAISED DOES NOT GUARANTEE (I) THE ACCURACY OF ANY DATA USED IN THE USE OF THE APPRAISED SERVICES AND CREATION OF THE REPORTS OR (II) THE AVAILABILITY OF ANY DATA BASED ON EXTERNAL SOURCES.   

15.

Indemnity

15.1

The Customer shall defend, indemnify and hold harmless Appraised against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use, its Authorised User’s use and its Authorised Recipients use of the Appraised Services and/or Documentation, provided that:

15.1.1.

the Customer is given prompt notice of any such claim;

15.1.2.

Appraised provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

15.1.3.

the Customer is given sole authority to defend or settle the claim.

16.

 Limitation of liability

16.1.

Except as expressly and specifically provided in this Agreement:

16.1.1.

the Customer assumes sole responsibility for results obtained from the use of or decisions made in reliance of the Appraised Services and the Documentation by the Customer, its Authorised Users and Authorised recipients and for conclusions drawn from such use. Appraised shall have no liability to the Customer, its Authorised Users and Authorised Recipients for any damage or loss caused as a result of such use, decision or conclusion.

16.1.2.

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

16.1.3.

the Appraised Services and the Documentation are provided to the Customer on an "as is" basis.

16.2.

Nothing in this Agreement excludes the liability of Appraised:

16.2.1.

for death or personal injury caused by Appraised's negligence; or

16.2.2.

for fraud or fraudulent misrepresentation.

16.2.3.

Subject to clause 16.1 and clause 16.2:

16.2.3.1.

Appraised shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss 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; and

16.2.3.2.

Appraised's total aggregate liability in contract, 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 Subscription Fees paid for the User Subscriptions during the then current Initial Subscription Term or Renewal Term.

17.

 Term and termination

17.1.

This Agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for the same duration as the Initial Subscription Term (each a "Renewal Period"), unless:

17.1.1.

either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

17.1.2.

otherwise terminated in accordance with the provisions of this Agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the "Subscription Term".

17.2.

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:

17.2.1.

the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;

17.2.2.

the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;

17.2.3.

the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

17.2.4.

the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

17.2.5.

the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

17.2.6.

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

17.2.7.

an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

17.2.8.

the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

17.2.9.

a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

17.2.10.

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

17.2.11.

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.2.4 to clause 17.2.10 (inclusive); or

17.2.12.

there is a change of control of the other party

17.3.

On termination of this Agreement for any reason:

17.3.1.

all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Appraised Services and/or the Documentation;

17.3.2.

each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

17.3.3.

Appraised may destroy or otherwise dispose of any of the Customer Data in its possession, unless Appraised receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Appraised shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Appraised in returning or disposing of Customer Data; and

17.3.4.

any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

18.

 Force majeure

Appraised shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Appraised or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

19.

Conflict

If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

20.

Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21.

Waiver

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.

22.

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.

23.

 Severance

23.1.

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.

23.2.

If any provision or part-provision of this Agreement is deemed deleted under clause 23.1 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.

24.

 Entire agreement

24.1.

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. 

24.2.

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.

24.3.

Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

24.4.

Nothing in this clause shall limit or exclude any liability for fraud.

25.

 Assignment

25.1.

The Customer shall not, without the prior written consent of Appraised, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

25.2.

Appraised 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.

26.

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).

27.

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.

28.

 Notices

28.1.

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.

28.2.

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.

28.

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.

1.

Jurisdiction

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).