1.1 This Agreement applies to all dealings in respect of the Services between UNITED UTILITIES WATER LIMITED (registered no. 02366678 ) whose registered office is at Haweswater House, Lingley Mere Business Park, Great Sankey, Warrington, Cheshire WA5 3LP (“the Company”); and
You the individual accessing the ordering service (“the Customer”),
each a “Party” and together the “Parties”
1.2 By electronically accepting this Agreement you agree to be bound by its provisions in relation to the Services.
1.3 The Company reserves the right to decline the provision of the Services to any Customer and will endeavour to notify the Customer of such decision in writing or electronically within seven (7) days of the Company's receipt of a signed Agreement or of the Customers electronic acceptance of it, following which neither Party shall be under any further obligation to the other.
1.4 The Company reserves the right to amend this Agreement from time to time by posting the amended version on the Website and by sending an amended copy to be signed and returned by Customers using electronic ordering channels. The amended version shall have effect from such later time stipulated on the Website in respect of Search Requests not yet submitted by the Customer.
In this Agreement, the following definitions shall apply:
“Charges” means the charges for the Services and the Data Provider's charges set out in the Company Price List from time to time in force.
“Data Provider” means a third party source to whom the Company submits a Search Request or from whom the Company obtains data.
“Map Data” means any Ordnance Survey map data provided as part of the Services.
“Company Price List” means the list of the charges from time to time applicable for the Services (current versions of the Company Price List are available upon request and published in paper and electronic format).
“Search Request” means a request from the Customer in the required form to the Company for information in respect of specified property.
“Search Results” means any information, data or other materials provided by the Company or the Data Provider in response to a Search Request from the Customer.
(i) the provision of assistance to the Customer in identifying applicable property and/or identifying and processing searches in relation to particular property; and/or (ii) delivering Search Requests received to selected Data Providers and returning Search Results to the Customer.
“Website” means the website of the Company from which the Customer can make Search
Requests and view their progress.
3 Rights Granted and Services Provided
In consideration of the mutual rights and obligations of the Parties:
3.1 the Company shall:
3.1.1 provide the Services to the Customer;
3.1.2 Search Results will be available for the Customer to retrieve via the Internet for a period of 90 days. After this period the Search Results will be deleted. Any requests for copies of deleted searches will result in the Customer being charged the Charges again for a new search to be undertaken.
3.2 the Customer shall be permitted to:
3.2.1 make and store electronic or hard copies of the Search Results (other than Map Data) for its own internal purposes;
3.2.2 incorporate the Search Results (other than Map Data) into written advice prepared by the Customer in the normal course of its business; and
3.2.3 disclose the Search Results (subject in the case of Map Data to Clause 3.3) in the normal course of the Customer’s business to:
126.96.36.199 the client of the Customer for whom the Search Request was made;
188.8.131.52 a person (or persons) who is/are acquiring (or is/are considering acquiring) an interest in or charge over the property to which the Search Results relate; or
184.108.40.206 any person who acts in a professional or advisory capacity for any person in Clause 220.127.116.11.
3.3 In respect of the Map Data the Customer shall be entitled to print out a single hard copy. Should the Customer wish to make multiple hard copies of the Map Data or pass the hard copy on to another party then the Customer must have in place and have paid for a current Ordnance Survey copyright license which may be obtained direct from Ordnance Survey. The Company accepts not liability howsoever and whensoever arising out of the Customer’s failure to hold the requisite licenses in relation to Ordnance Survey maps or otherwise.
4.1 The Charges will be those included in the Company Price List applicable on the date of the relevant Search Request and will appear on the Customer's screen prior to a request for Website Services being made.
4.2 Unless otherwise indicated, all Charges included in the Company Price List are inclusive of any Value Added Tax.
4.3 The Company may revise the Company Price List from time to time by publishing the same electronically on the Website. Any alterations shall not have effect retrospectively.
4.4 The Customer will be charged for the provision of the Services when the relevant key to confirm the request for the Services is pressed or (in any other case) when the Customer agrees to proceed with the request for Services after being informed of the Charges.
4.5 The risk of input or submission of information is with the Customer. The Customer entering an incorrect address or requesting searches in error will not remove or limit the Customer's obligation to pay the Charges in respect of any Search Request.
4.6 The Company will either manually or electronically (at its discretion) invoice the Customer at the address provided by the Customer on the Account Request Form in line with the Company’s standard account facility terms and conditions or such other applicable payment terms as agreed in writing between the parties.
4.7 The Company shall be entitled to charge the Customer interest at 4% over the base rate of Lloyds TSB Bank plc from time to time in force in respect of any invoices not so discharged and reserves the right to suspend or discontinue the Services without notice to the Customer until such invoices have been paid in full.
5.1 Nothing in this Agreement excludes or limits or purports to exclude or limit the liability of either Party for personal injury or death caused by negligence, for fraud or fraudulent misrepresentation or for any other liability the exclusion or restriction of which is expressly prohibited by law.
5.2 The Customer acknowledges and accepts that the Company only provides the Services to it on the express condition that the Company will not be responsible for nor shall it have any liability to the Customer, the Customer’s clients or any other third party directly or indirectly whether in contract tort or otherwise for:
5.2.1 inaccuracies or errors in or omissions from any Search Results provided by a Data Provider;
5.2.2 inaccuracies or errors in or omissions from any register or other information source maintained or used by a Data Provider; or
5.2.3 any act or omission of a Data Provider.
5.3 Without prejudice to Clause 5.2 and subject to the foregoing provisions, the Company shall not be liable for any loss or damage sustained by the Customer, the Customer’s clients or any other third party directly or indirectly whether in contract tort (including negligence) or otherwise making use of or relying on the Search Results including but not limited to any loss or damage resulting as a consequence of:
5.3.1 any failure by the Customer to have in place all necessary means of receiving the Search Results, the maintenance of Internet access, appropriate email facilities and security measures; or
5.3.2 inaccuracies or errors in or omissions from any Search Results; or
5.3.3 any Search Request which is inaccurate, incomplete, illegible, out of sequence or in the wrong form or in respect of the wrong property or arising from late arrival or non-arrival thereof, unless and then only to the extent the loss and damage sustained shall be a direct consequence of the negligent act or omission of the Company.
5.4 Without prejudice and subject to the foregoing provisions, the total aggregate liability of the Company for all claims by Customers and any third parties, howsoever and whensoever arising whether in contract, tort (including negligence) or otherwise for any breach of the obligations of the Company or any default, act, omission, negligence or statement of the Company, its employees, servants, agents or sub-contractors in connection with or in relation to services provided by the Company; shall not exceed the lesser of:
5.4.1 the value of the interest(s) being acquired; or
5.4.2 the amount of the loan(s) being made; or
5.4.3 the purchase price(s) paid, (as the case my be) by the claiming parties in or for (or against the security of) the property/properties in respect of which the Search Request(s) was/were made; or
5.4.4 where the Search Request(s) is/are being made for a purpose other than specified in clause 6.5.1, the value of the property/properties in respect of which the Search request(s) was/were made as at the date of the Search Request(s); or
5.4.5 the sum of five (5) million pounds.
5.5 Subject to Clause 5.1 above, but notwithstanding anything else contained in this Agreement, the Company shall not be liable to the Customer or any third party for any loss of profit (whether direct or indirect) or for any indirect or consequential loss howsoever and whensoever arising under or in relation to the Services or this Agreement including but not limited to any act, omission breach of contract or tort (including negligence).
5.6 The Customer acknowledges and accepts:
5.6.1 that electronic information sent via the Internet can be affected by errors in transmission, destructive programs and or information introduced maliciously by third parties such as viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Whilst the Company will use its reasonable endeavours to procure that such destructive programs are restricted it is not liable for the presence of such programs in the Search Results except to the extent to which the presence of destructive programs is caused by the failure of the Company to use such reasonable endeavours; and
5.6.2 that the Company has no control over the Internet or documentation transmitted by email or via the Internet. The Services do not include protection for or privacy of such information.
5.7 Subject to Clause 5.1, the Company shall not have any liability to any third party except in accordance with the provisions of this Agreement or except as otherwise expressly agreed in writing by the Company.
6.1 The Company warrants that:
6.1.1 the Services will be performed with reasonable skill and care and, as far as reasonably possible, will be performed materially in accordance with the specifications quoted by the Law Society in relation to Drainage and Water Enquiries at the time the Customer submits the Search Request;
6.1.2 it is authorised to provide the Services in accordance with the provisions of this Agreement; and
6.1.3 the provision of the Services will not infringe any third party rights.
6.2 The Company does not warrant that:
6.2.1 the Services will meet the Customer’s individual requirements and the Customer acknowledges that it is the responsibility of the Customer to ensure that the Services and Search Requests (including without limitation the property identification) meet its requirements. The Company shall not be liable for any failure of the Services to provide any facility or function not specified by the Law Society in relation to Drainage and Water Enquiries; nor that
6.2.2 any information provided by a Data Provider will be accurate or complete, but the Company shall, if so reasonably requested and where possible, assign to the Customer at the Customer’s cost the benefit of any warranty, guarantee or indemnity given by such Data Provider to the Company.
6.3 The Customer warrants that:
6.3.1 the information supplied by the Customer when completing and submitting the Customer Information Form is true, accurate and complete and that it will notify the Company in writing of any changes in such information; and that
18.104.22.168 will not allow any third party to use the Website; and
22.214.171.124 is authorised to receive the Services in accordance with the provisions of this Agreement; and
126.96.36.199 in its use of the Services will comply with all applicable laws, regulations and codes of practice in place from time to time; and
188.8.131.52 will keep confidential and secure all user names and passwords used in relation to the Services and accepts that use of a user name and password allocated to a Customer shall constitute sufficient authority to the Company to perform the Services and be entitled to payment for so doing; and
184.108.40.206 will obtain and maintain suitable equipment including hardware, software and communication links necessary to allow the Customer to access the Services and receive electronic communications from the Company.
6.4 The provisions of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
7 Intellectual Property Rights
7.1 All intellectual property rights to any Search Results provided to the Customer by the Company shall at all times remain the property of the Company, the Company’s licensors or the relevant Data Provider and nothing in this Agreement confers or purports to confer any intellectual property rights on the Customer. The Customer warrants represents and undertakes that it shall not at any time make any copy of any such material or otherwise deal with such material or disclose the same whether directly or indirectly to any third party except in accordance with this Agreement.
7.2 The Search Results provided in electronic or hard copy form will include the Company’s logo and name, and the logos and names of its licensors and relevant Data Providers. Such documentation shall not be altered or adulterated so as to remove reduce in size or obliterate such logos and names.
The right to be provided with the Services is personal to the Customer and is not transferable. In no circumstances is access to the Services to be permitted, facilitated or resold by the Customer to any other person or entity.
9.1 If the Customer is a consumer pursuant to the Consumer Contracts Regulations 2013 and unless the Customer has asked the Company to commence the Services relating to a Search Request within 14 days of the Customer making the Search Request, the Customer has the right to cancel that Search Request within 14 days of making such Search Request without giving any reason (“Cancellation Period”). To exercise the right to cancel, prior to the expiry of the Cancellation Period the Customer must either submit the cancellation request for that order by logging into their account or by notifying the Company in writing at United Utilities Property Searches, Haweswater House, Lingley Mere Business Park, Lingley Green Avenue, Great Sankey, Warrington WA5 3LP. If writing to the Company, the Customer must provide the following information in order the Company to process any cancellation request:
1) the Customer’s name and address;
2) the date of the Search Request;
3) to which property or properties the Search Request relates; and
4) the date on of the cancellation request.
Whilst the Company will communicate to the Customer an acknowledgement of receipt of such a cancellation by email, the Search Request will be deemed cancelled upon the Customer submitting the cancellation form on the Website.
9.2 If the Customer cancels any Search Request, the Company will reimburse to the Customer all payments received from the Customer. The Company will make the reimbursement without undue delay, and not later than 14 days after the day on which the Company is informed about the Customer’s decision to cancel the relevant Search Request. The Company will make the reimbursement using the same means of payment as the Customer used for the initial transaction, unless the Customer has expressly agreed otherwise; in any event, the Customer will not incur any fees as a result of the reimbursement.
9.3 When placing a Search Request, the Customer may request that the Company commences the Services in respect of that Search Request within the Cancellation Period. By doing so, the Customer waives its rights to cancel pursuant to clause 9.1. The Company shall not be obliged to refund any Charges paid by the Customer in such circumstances.
9.4 This licence may be terminated by either Party at any time on giving 30 days written notice to the other Party.
9.5 This licence may be terminated by either Party forthwith if the other Party is in material breach of its obligations hereunder.
9.6 Upon termination the Company will continue to provide to the Customer the Search Results paid for before the date of such termination.
10 Force Majeure
10.1 Neither Party shall be responsible for delays or failures in performance resulting from Force Majeure.
10.2 The operation of this Agreement shall be suspended during the period and only during the period in which the Force Majeure continues to have effect.
10.3 For the purposes of this Agreement, "Force Majeure" means any event or series of events beyond the reasonable control of either Party and which could not have been prevented or overcome by the exercise of due care, caution and diligence by the Party affected. Events beyond the reasonable control of the Parties shall include (without limitation):
10.3.1 act of God, storm, flood, epidemic or other natural physical disaster; and
10.3.2 accidents, fire, explosion; and
10.3.3 any war or preparation for war, hostilities, revolution, riot or civil disorder, insurrection, terrorism; and
10.3.4 failures of public utility supplies (electricity, post, telecommunications) or general failure of the Internet; and
10.3.5 the introduction of, or any amendment to, a law or regulation, or any change in its interpretation or application by any authority; and
10.3.6 any breach of contract, termination of contract, default by, or insolvency of, a third party on whom the Company relies for the provision of the Services other than a company in the same group as the Company or an officer or employee of the Company or of such a company.
11 Applicable Law
The construction validity and performance of this Agreement shall be governed by English law and the Customer irrevocably submits to the exclusive jurisdiction of the English Courts save that nothing in this Agreement shall limit the right of the Company, its successors and assigns to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
12 Acquiescence, Forbearance and Waiver
12.1 The Parties agree that:
12.1.1 For a waiver of any right to be effective it must be given expressly in writing by a duly authorized representative.
12.1.2 Any acquiescence to a breach or forbearance to enforce a right does not consent to the breach nor prejudice enforcement of the right unless the consent or forbearance is given expressly in writing by a duly authorised representative.
12.1.3 Any other form of purported acquiescence, forbearance, consent or waiver will not be of any effect.
12.1.4 No failure or delay on the part of either of the Parties to exercise any right or remedy under this Agreement is to be construed or to be treated as a waiver of or bar to the exercise or enforcement of the right or remedy.
12.1.5 Any effective waiver or acquiescence to or forbearance in any breach of any provision of or to the exercise or enforcement of any right or remedy is not to be taken or held to prejudice the subsequent enforcement or exercise of a right remedy or provision.
13.1 Any notice to be given under this Agreement must be in writing signed by a duly authorised representative of the relevant Party.
13.2 All notices, documents, communications and any other data to be provided under this
Agreement must be in the English language unless otherwise agreed.
13.3 Notices are to be sent to the address of the other Party as given herein or to such other address as that Party may have previously notified to the Party giving notice as its address for such service.
13.4 Notices can be delivered (properly addressed) by registered post or by hand.
13.5 A Party shall not attempt to prevent or delay the service on it of a notice connected with this Agreement.
13.6 In the absence of acknowledgement of receipt from the recipient Party proof of delivery of a notice remains with the sender.
14 Third Parties
14.1 This Agreement is only enforceable by the original Parties to it and by their successors in title and permitted assignees and does not confer or purport to confer any rights on any third party. Any rights of any other person to enforce or rely upon any provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 are excluded.
14.2 We may disclose personal data you provide about yourself, or your clients, to other companies within our group in accordance with the Data Protection Act 1998 and other applicable laws. We will analyse and utilise any information we collect so that we are able to correctly administer, develop and improve our business and services. We may also disclose any data provided if we are under legal obligation to do so, or if we are required to enforce any right under this Agreement. This may include exchanging information with other organisations, regulators and industry bodies in relation to Mortgage fraud and/or credit risk reduction. Before you agree to this Agreement, please note it is your responsibility to ensure your client/customer is aware of them and that any objections are raised accordingly beforehand.
15 Entire Agreement
15.1 This Agreement (together with all other documents to be entered into pursuant to it) sets out the entire agreement and understanding between the Parties, and supersedes all proposals and prior agreements, arrangements, course of dealings and understandings between the Parties, whether written or oral, relating to its subject matter.
15.2 Each Party acknowledges that in entering into this Agreement (and any other document to be entered into pursuant to it) it does not rely on any representation, warranty, collateral contract or other assurance of any person (whether Party to this Agreement or not) that is not set out in this Agreement or the documents referred to in it. Each Party waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such representation, warranty, collateral Agreement or other assurance. The only remedy available to any Party in respect of any representation, warranty, collateral contract or other assurance that is set out in this Agreement (or any document referred to in it) is for breach of contract under the provisions of this Agreement (or the relevant document) and where any factual circumstances give rise both to a claim for breach of this contract and for misrepresentation the Parties agree that the innocent Party's remedies shall be limited to those for breach of contract and shall not extend to any remedy for or in respect of representation. Nothing in this Agreement shall, however, limit or exclude any liability of either Party for fraud or fraudulent misrepresentation.