Posted 20 July 2022
These are the standard terms which set out the basis upon which we “Acaboom” will provide presentation based “Services” for you “The Customer”, unless they are specifically amended in writing by you, and accepted by us, and any subsequent correspondence between us and you.
Any service received by you from Acaboom are subject to these terms of business.
- Acaboom undertakes that the Services will be performed with reasonable skill and care.
- In the event that the Services do not comply with the description and documentation provided by Acaboom, Acaboom will, at its expense, use all reasonable commercial endeavours to correct any 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 this clause.
Notwithstanding the foregoing, Acaboom:
- 1. does not warrant that the any of the Services will be uninterrupted or error-free; nor that the Services and/or the information obtained by The Customer through the Services will meet The Customer requirements; and
- 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 Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- Acaboom warrants that it will use all reasonable endeavours to maintain all necessary and available licences, consents, and permissions necessary for the performance of its obligations
The Customer rights & responsibilities
- In consideration of the Fee Acaboom grants to The Customer a non-exclusive right to use the Services and advertise the fact that the Services are used under the Acaboom brand.
- The Customer shall be permitted to allow such employees, agents or sub-contractors access to the Services as are reasonably necessary in order for The Customer to properly use the Services.
- The Customer shall use at least one account per office or other location of business requiring Acaboom presentations and to not disclose login details to any other party.
The Customer shall:
- Provide Acaboom with all necessary co-operation in relation to these terms; and all necessary access to such information as may be required by Acaboom in order to render the Services, including but not limited to Customer Data:
- Comply with all applicable laws and regulations with respect to its activities under these terms;
- Carry out all other Customer responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in The Customer provision of such assistance as agreed by the parties, Acaboom may adjust any agreed timetable or delivery schedule as reasonably necessary.
- Accept that works carried out may show the source of such works including references such as but not limited to the term Powered By.
- Obtain and shall maintain all necessary license, consent and the authority to use any and all images, contracts, and any other material provided and then used to deliver the service.
- Permit Acaboom to showcase publicly any works completed for The Customer.
- Keep any passwords provided by Acaboom in connection with the Services secure and confidential and The Customer hereby acknowledges and agrees that it shall be responsible for anything done under its password irrespective of whether such things were done by The Customer, its authorised employees or agents or another third party;
- Use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Acaboom;
- Not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services.
- Not use any third party software to add functionality to the Services
- Not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or any part of them available to any third party except the authorised Users, or attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause.
Not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- 1. Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- 2. Facilitates illegal activity;
- 3. Depicts sexually explicit images;
- 4. Promotes unlawful violence;
- 5. Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
- 6. Causes damage or injury to any person or property;
- Acaboom reserves the right, without liability to The Customer, to disable The Customer access to any material that breaches the provisions of this clause.
- Use commercially reasonable endeavours to make the Services available to The Customer as soon as reasonably practicable and avoid any planned maintenance unless already notified to The Customer.
- Notify The Customer of any planned maintenance and wherever possible avoid carrying out planned maintenance during The Customers usual working hours or on any day on which The Customer has already notified Acaboom.
- Notify The Customer as soon as reasonably practicable and shall use reasonable endeavours to avoid disrupting the Services during the Customers usual working hours.
- The Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
- Acaboom will have the right to use the Customers data to deliver the Service and also to provide statistical information on the performance of the Service but will not have the right to contact any individual client of the Customer unless agreed by the Customer in writing.
- Acaboom 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 Acaboom to perform services related to Customer Data maintenance and back-up).
- Acaboom will on certain occasions record customer service based calls solely to monitor the performance of the service. Call recording will be operated in accordance with current legislation and The Customer will ensure that any call recording operated by them also complies with current legislation.
- If Acaboom processes any personal data on The Customer’s behalf when performing its obligations under these terms, the parties record their intention that The Customer shall be the data controller and Acaboom shall be a data processor and in any such case.
- The Customer shall ensure that it is entitled to transfer the relevant personal data to Acaboom so that Acaboom may lawfully use, process and transfer the personal data in accordance with these terms on The Customer behalf.
- The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
- Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
- Where the Customer gives unlawful instructions it shall indemnify Acaboom and hold it harmless to the full extent of any liability, loss, damages, costs or expenses incurred as a result of Acaboom following such unlawful instructions
- The Customer shall process the personal data only in accordance with the terms of these terms and any lawful instructions reasonably given by The Customer from time to time.
Fees & Payment
- The Customer shall pay the Fees as confirmed to the Customer prior to commencement of the Service, or as might be updated in writing thereafter, to Acaboom which for the avoidance of doubt may relate to design based services and/or a monthly subscription to use the Service.
- An agreed minimum contract term relates to the number of monthly subscriptions falling due within the agreed term.
- The Customer shall use the Service ongoing, accepting it can be terminated on 3 months notice whilst accepting the agreed contract term is always the minimum term applicable unless otherwise agreed and confirmed in writing by Acaboom to the Customer. The Customer accepts that post-termination there will be no further access to the service, nor will there be any associated notifications/system communications delivered.
- Payments due are collected by direct debit and it is therefore a requirement a direct debit mandate be completed. Where payments cannot be taken by direct debit a service charge of 10% is added to all amounts falling due.
- Accounts may have up to 3 valuers (with Pre-Appointment templates). Additional valuers can be added for a fee.
- Payment for the Service is required in advance of using the Service for the next subscription period, unless agreed in writing by Acaboom whereupon all invoices submitted and due shall be payable within 21 days of the invoice date.
- Template set-up fees include the creation of up to 10 bespoke content slides per template; in addition, templates for property professionals shall have standard slides which include but are not limited to various local and national market overviews, a valuation letter, documents library, and a personalised valuer video slide.
If Acaboom has not received payment within 21 days after the due date then, without prejudice to any other rights and remedies of Acaboom:
- 1. It may, without liability to The Customer, disable The Customer passwords, accounts and access to all or part of the Services and Acaboom shall be under no obligation to provide any or all of the Services to The Customer while any invoices remain unpaid;
- 2. Interest and other compensation shall accrue and shall be payable on such due amounts in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. The accrual of such interest shall commence on the due date and shall continue until fully paid, whether before or after judgment; and
- 3. Where Acaboom considers it necessary to engage the services of any debt collection agency in respect of any unpaid invoices, Acaboom shall be entitled recover the costs of such services, and any other relevant expenses involved in recovering its debt, from The Customer.
- 4. All amounts and fees stated or referred to in these terms shall be payable in pounds sterling and are non-refundable.
- The Customer acknowledges and agrees that Acaboom and/or its licensors own all intellectual property rights in the Services and each element of the Services including any statistical information derived from the Customers data. Except as expressly stated these terms do not grant The Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or any part of them.
- Acaboom confirms that it has all the rights in relation to the Services that are available to grant all the rights it purports to grant under, and in accordance with, these terms.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. A party’s Confidential Information shall not be deemed to include information that:
- 1. Is or becomes publicly known other than through any act or omission of the receiving party;
- 2. Was in the other party’s lawful possession before the disclosure;
- 3. Is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- 4. Is independently developed by the receiving party, which independent development can be shown by written evidence; or
- 5. Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- Each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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 these terms.
- 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 these terms.
- The Customer shall defend, indemnify and hold harmless Acaboom 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 use of the Services.
Acaboom shall defend The Customer, its officers, directors and employees against any claim that the Services or any of the Services’ constituent parts infringes any United Kingdom patent (effective as of the date of these terms), copyright, trade mark or database right, and shall indemnify The Customer for any amounts awarded against The Customer in judgment or settlement of such claims, provided that:
- 1. Acaboom is given prompt notice of any such claim;
- 2. The Customer provides reasonable co-operation to Acaboom in the defence and settlement of such claim, at Acaboom’s expense; and
- 3. Acaboom is given sole authority to defend or settle the claim.
Limitation of liability
- The Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. Acaboom shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Acaboom by The Customer in connection with the Services, or any actions taken by Acaboom at The Customer direction;
- Acaboom excludes liability for loss of profit, loss of reputation and loss of anticipated savings (whether direct or indirect) and costs, expenses, damages and losses of an indirect and consequential nature, suffered or incurred by The Customer arising out of or in connection with Acaboom’s breach or negligent performance or non-performance.
- The maximum liability of Acaboom to The Customer during service delivery shall be a sum no greater than 100% of the Fee due to Acaboom in the calendar month in which the liability arises, and post termination of service delivery the liability is excluded in full.
- The Customer shall indemnify Acaboom for all direct costs, expenses, damages and losses suffered or incurred by Acaboom, and indemnify and hold harmless Acaboom from any claim from a third party in each case, arising out of or in connection with The Customer breach or negligent performance or non-performance to the full extent of such liability.
Nothing in these terms shall exclude liability for:
- 1. death or personal injury caused by negligence of either party or its officers, employees, contractors or agents;
- 2. fraud or fraudulent misrepresentation; or
- 3. any other liability which may not be excluded by law.
- Acaboom shall have no liability to The Customer under these terms if it is prevented from or delayed in performing its obligations under these terms, 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 Acaboom or any other party), 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, extreme adverse weather conditions or default of suppliers or sub-contractors, provided that The Customer is notified of such an event and its expected duration.
- A waiver of any right under these terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
- Unless specifically provided otherwise, rights arising under these terms are cumulative and do not exclude rights provided by law.
- If any provision (or part of a provision) of these terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, that provision or part provision shall be deemed deleted and the remaining provision shall continue in full force and effect.
- These terms and conditions and any documents referred to, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- The Customer shall not, without the prior written consent of Acaboom, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
- Acaboom 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 these terms.
- Each of the parties acknowledges and agrees that in agreeing these terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms or not) relating to the subject matter of these terms, other than as expressly set out in these terms.
- Nothing in these terms 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).
- These terms of business are subject to review from time to time. A copy of any revised terms of business will be sent to you and/or made available at www.acaboom.co.uk and any revised terms of business will supersede previous versions.
- These terms do not confer any rights on any person or party (other than the parties to these terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- These terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales and the parties submit to the non exclusive jurisdiction of the courts of England.
- Acaboom is a trading name of Acaboom Limited, a limited liability company incorporated in England and Wales with registered number 08429337 whose registered office is at 336 Fifth Avenue, Havant, Hampshire, PO9 2PL