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Growth Track Terms and Conditions

These Terms and Conditions define the legal relationship between Growth Track Limited (trading as Estate Track) (“we” / “Estate Track”) and our customer identified during our online sign-up process (“you”).
All contracts that we may enter into from time to time for the provision of our Estate Track services shall be governed by these Terms and Conditions.
We will usually ask for your express acceptance of these Terms and Conditions before providing the services to you. By requesting, using or paying for any services, you consent to these Terms and Conditions, and you agree that they will govern the provision of such services.
If you are a company or legal person, the individual accepting or agreeing to these Terms and Conditions gives that acceptance or agreement on behalf of that company or legal person, and represents to us that he or she has the legal authority to bind that company or legal person to these Terms and Conditions.
In these Terms and Conditions, some of the words and phrases we use have special meanings. These words and phrases all start with capital letters. The special meanings are set out near the end of these Terms and Conditions, in Clause 32.
Growth Track Limited (trading as Estate Track) is a company incorporated in England and Wales (company number 07651138) with its registered office at 3 Stirling Court, Stirling Way, Borehamwood, Hertfordshire WD6 2FX. You can contact us by writing to this address or by email to help@estatetrack.co.uk.
1. The Contract
1.1. To place an order for the Services you shall complete the online sign-up process (in respect of the Core Services) or the online order process (in respect of the Extra Services)(an “Order”).
1.2. An Order constitutes an offer by you to purchase the Services on and subject to the terms of this Contract.
1.3. Only once the Order is accepted by Estate Track:
(a) in case of the Core Services, by providing you with a digital confirmation certificate; or
(b) in case of the Extra Services, by a confirmatory “thank you” webpage,
this Contract shall come into effect.
1.4. Estate Track shall provide to you those Services ordered during the online sign-up or order process, subject to these Terms and Conditions.
2. Core Services
2.1. The Core Services shall consist of a combined package of the following Services:
(a) the Web Service;
(b) the Email Services;
(c) the Social Service;
(d) the Leads Service; and
(e) such other services forming part of the Core Services as may be made available by Estate Track to you and specified on our website from time to time.
2.2. The Minimum Service Period for the Core Services is 24 months beginning upon the Go Live Date. You shall have no right to terminate the Contract under Clause 21.1. before the end of the Minimum Service Period.
2.3. If the Go Live Date has not been achieved within 90 days from the Contract coming into effect under Clause 1.3 (“Implementation End Date”) and such delay is due to delay or failure on your part to promptly perform your obligations under the Contract, including without limitation provision of materials, information or approvals, then Estate Track may:
(a) treat the Implementation End Date as the Go Live Date for the purposes of billing for the Core Services under Clause 13.2 and for the purposes of calculating the Minimum Service Period under Clause 2.2, irrespective of whether the Website is available for live use; and/or
(b) terminate the Contract at any time before the Website is available for live use on written notice to you.
2.4. In the event of termination under Clause 2.3(b), you shall pay Estate Track an amount equivalent to 3 months’ of Fees (calculated in accordance with the relevant Order).
2.5. The Fees in respect of the Core Services shall become due from the Go Live Date in accordance with Clause 13. You acknowledge that the Go Live Date is the date when the Website is made available to you for live use and not a start date for the individual services within the Core Services package. Estate Track shall use reasonable endeavours to begin the provision of the individual services as soon as reasonably possible following the Go Live Date.
2.6. Estate Track may at any time add, alter, remove or replace any individual services forming part of the Core Services or features of the Core Services:
(a) where such changes are due to any actions or changes by third parties and outside the reasonable control of Estate Track (including any changes in third party services incorporated in the Core Services), or
(b) otherwise, provided that such changes do not materially alter or disrupt your enjoyment of the Core Services.
3. Web Service
3.1. The Web Service shall be as fully described on our website from time to time and shall include:
(a) the Website Creation Service;
(b) the Website Hosting Service;
(c) the Website Maintenance Service; and
(d) any other services relating to the content, operation or publication of the Website that are specified on the Pricing Page or that Estate Track provides or agrees to provide, including the provision of data for publication on the Website and you acknowledge that additional fees may be payable with regards to such additional services.
3.2. Estate Track shall use reasonable endeavours to complete the Website Creation Service within any time period agreed by the parties in writing.
3.3. The Website Creation Service shall include design and development of a website consisting of 25 webpages (including standard documentation webpages such as privacy policy and terms) and, where applicable, a further 3 webpages per each additional branch.
3.4. You acknowledge that where the Website incorporates any Third Party Services you may incur additional charges from the providers of the Third Party Services (e.g. Google Maps charges on a click basis). If you do not wish to incur such additional charges, you may request Estate Track to remove the relevant integration.
3.5. Before Estate Track commences the provision of the Website Creation Service, you will be able to select a design for you Website (“Theme”) from a selection of Themes then made available by Estate Track. Each Theme has specific options, features, designs, sections, elements (“Theme Elements”) available for creation of a website. When building your Website, Estate Track will only use the Theme Elements which are available for the Theme selected by you and you acknowledge that the Website Creation Service is not a bespoke service and that certain Theme Elements may not be available for the chosen Theme. Change of the Theme for your Website, following commencement of the Website Creation Service by Estate Track, may incur additional charges.
3.6. From time to time during the provision of the Website Creation Service, Estate Track may make available to you work in progress toward the Website for your review and approval. You must review and either approve or decline to approve such work in progress promptly following the communication of the work in progress to you. You may only refuse to give such approval if it is reasonable to do so. Once work in progress has been approved, you shall have no right to require any changes to the agreed subject matter; and if Estate Track agrees to make changes to the agreed subject matter, it may charge for doing so at its standard time-based charging rates.
3.7. If:
(a) you unreasonably refuse to approve work in progress toward the Website or the final Website; or
(b) you fail to approve work in progress toward the Website or the final Website within the period of 90 days following the communication of the relevant work to you,
then Estate Track may terminate the Core Services by giving you written notice of termination, effective immediately upon the giving of the notice, in which case: (i) you must pay to Estate Track all outstanding amounts payable with respect to the Core Services provided up to the date of termination within the period 7 days following the date of such termination; and (ii) Estate Track will refund to you any amounts paid to Estate Track with respect to the Core Services which were to have been provided after the date of such termination.
3.8. You acknowledge that a delay in:
(a) you performing your obligations under these Terms and Conditions; or
(b) the provision of third-party co-operation,
may result in a delay in the performance of the Web Service; and subject to Clause 18.1 of these Terms and Conditions, Estate Track will not be liable to you in respect of any failure to meet the Web Service timetable to the extent that that failure arises out of such a delay.
3.9. Estate Track warrants to you that the Website, when used by you in accordance with these Terms and Conditions, will not infringe the copyright of any person under English law; providing however that Estate Track shall have no liabilities under this Clause 3.9 or otherwise in respect of any infringement of any person’s Intellectual Property Rights caused by Your Materials or Third Party Materials.
3.10. If Estate Track reasonably determines, or any third party alleges, that the use of the Website by you in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, Estate Track may:
(a) modify the Website in such a way that it no longer infringes the relevant Intellectual Property Rights; or
(b) procure for you the right to use the Website in accordance with these Terms and Conditions.
3.11. Estate Track shall host the Website from the Go Live Date and make the Website Dashboard available to you as soon as reasonably possible following the Go Live Date.
3.12. Estate Track hereby grants to you a non-exclusive license from the Go Live Date to access and update the content of the Website by means of the Website Dashboard, and to publish the Website and make the Website available to others to use via the internet, providing that:
(a) the Website shall be hosted by Estate Track in accordance with this Clause 3;
(b) the functionality of the Website Dashboard shall be limited; if you request that Estate Track make changes to the Website design or software, any agreement to make such changes may be subject to the payment of additional Fees;
(c) you will have no administrative access to the Hosting Platform;
(d) you will have no right to access or copy the Website software; and
(e) the license in this Clause 3.12 shall automatically terminate upon the termination of the Core Services,
subject in each case to Clauses 3.20 and 3.21.
3.13. The Website Dashboard may only be used by your officers, employees, agents and subcontractors and, except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the license granted by Estate Track to you under Clause 3.12 is subject to the following prohibitions:
(a) you must not sub-license your right to access and use the Website Dashboard;
(b) you must not permit any unauthorised person to access or use the Website Dashboard; and
(c) you must not make any alteration to the Hosting Platform, except as permitted by the Website Dashboard.
3.14. You must use reasonable endeavours, including reasonable security measures relating to Website Dashboard access details, to ensure that no unauthorised person may gain access to the Website Dashboard or any element of the Website Hosting Service that is accessible using the Website Dashboard.
3.15. Estate Track shall create a back-up copy of the Hosted Data periodically, shall ensure that each such copy is sufficient to enable Estate Track to restore the Website Hosting Service to the state it was in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
3.16. Following receipt of a written request from you, Estate Track shall use all reasonable endeavours to restore to the Hosting Platform the Hosted Data stored in any back-up copy created and stored by Estate Track in accordance with Clause 3.15. You acknowledge that this process will overwrite the Hosted Data stored on the Hosting Platform prior to the restoration.
3.17. See Clause 12 for additional rules governing the use of the Website Dashboard and the Hosted Data.
3.18. From time to time during the Term, Estate Track may agree to provide the Website Maintenance Service to you. Fees with respect to the updating of Website software are included in the periodic Fees for the Web Service. Additional Fees will be payable by you with respect to other elements of the Website Maintenance Service, at such rates as are specified on the Pricing Page (or as Estate Track and you agree in writing).
3.19. If the Contract terminates, then Estate Track shall supply or make available to you within the period of 5 Business Days following such termination a copy of the Site Files, excluding for the avoidance of doubt all software code, custom modules and other works and materials the Intellectual Property Rights in which are owned by Estate Track.
3.20. From the date of supply of the Site Files in accordance with Clause 3.19, those works and materials in the Site Files the Intellectual Property Rights in which are owned by Estate Track shall constitute Content Deliverables for the purposes of the Contract. See Clause 10.3 for licensing terms relating to the Content Deliverables.
3.21. You acknowledge that some of the functionality available on the Website whilst it is hosted through the Web Service may be unavailable after termination of the Contract.
4. Email Services
4.1. The Email Services shall be as fully described on our website from time to time and shall include:
(a) the provision of a hosted email marketing platform enabling you to manage, execute and analyse email marketing campaigns; and
(b) the application of branding to emails, which may include the onward delivery of those branded emails.
4.2. You shall ensure that any email addresses and associated personal information provided by you or on your behalf to Estate Track for use in connection with the Email Services has been collected in accordance with applicable law, and that the use of such information by you, or by Estate Track in accordance with these Terms and Conditions or your instructions, will not breach:
(a) the Data Protection Laws;
(b) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (or any successor statutes or regulations); or
(c) any other applicable laws.
4.3. See Clause 12 for additional rules governing the use of the Email Services and the content of emails sent by means of the Email Services.
4.4. If the Contract terminates, then you should download a copy of your marketing database(s) stored by means of the Email Services before the date of effective termination or where such download was not practicable before such date, Estate Track shall allow you a reasonable timeframe to complete the download following the date of effective termination.
4.5. To the extent that Estate Track provides artwork or designs to you in connection with the Email Services, these shall constitute Content Deliverables for the purposes of the Contract. See Clause 10.3 for licensing terms relating to the Content Deliverables.
4.6. You acknowledge that the technical process by which emails modified by the Email Services are dispatched will depend upon the type and configuration of your email systems. In some cases, emails may be returned to your email servers for dispatch by those servers; in other cases, emails may be dispatched by Estate Track email servers.
4.7. You acknowledge that to use the Email Services you must have an appropriate Office 365 licence.
4.8. See Clause 12 for additional rules governing the content of emails modified or sent by means of the Email Services.
4.9. You are responsible for ensuring that you have the correct number of user accounts for the Email Services and must notify Estate Track if you wish to remove a user account from the Email Services. To the extent that Fees for the Email Services are calculated on a per-user account basis, you will be liable to pay Fees with respect to all user accounts that remain available to you for all or part of the relevant charging period.
5. Social Service
5.1. The Social Service shall be as fully described on our website from time to time and may include the creation of content for publication on and distribution through Social Media Platforms and the publication of such content on and distribution of such content through Social Media Platforms.
5.2. Each party must comply with the terms and conditions of the Social Media Platforms in respect of its activities relating to the Social Service.
5.3. Subject to Clause 18.1, but notwithstanding any plans or projections communicated by Estate Track to you, Estate Track does not give any guarantees in relation to the outcomes of the Social Service.
5.4. You acknowledge the Social Service shall not include managing your accounts on the Social Media Platforms or managing your overall social media strategies and/or campaigns and you shall be solely responsible for such activities.
5.5. The Social Service will be provided in respect of one account only on each relevant Social Media Platform irrespective of the number of accounts you may have on each Social Media Platform.
5.6. You shall provide to Estate Track access to the Google account and the social media accounts necessary for the provision of the Social Service and ensure you have ownership of such accounts. You shall be solely responsible for creation and maintenance of such Google and social media accounts. Estate Track may, on your request, from time to time, assist you with creation of any such accounts, however you acknowledge that, despite any assistance from Estate Track, you will remain responsible for the accounts in accordance with this Clause 5.6.
5.7. Changes to the Social Media Platforms may affect the performance and effects of the Social Service. You acknowledge that Estate Track has no control over, and is not responsible for, any changes made to any Social Media Platform.
5.8. You acknowledge that the promotion of a website may lead to increased bandwidth, processing capacity and/or storage requirements for the website, and you shall be responsible for arranging and paying for any services required to meet such requirements.
6. Leads Service
6.1. The Leads Service shall be as fully described on our website from time to time and may include:
(a) the provision of web-based tools enabling you to offer instant valuations of properties and other functionality through your website;
(b) the collection of lead information by means of those tools; and
(c) the provision of lead information collected through installations of those tools on third party websites.
6.2. You must publish a privacy notice on your website that includes all information necessary to ensure that the collection and use of Personal Data by means of the Leads Service complies with the Data Protection Laws.
6.3. You acknowledge that valuations of properties obtained via the Leads Service are estimates only, that Estate Track relies upon third party data sources to generate such estimates, and that Estate Track does not guarantee the accuracy of such estimates. You must not rely solely upon the estimates or invite or encourage any other person to rely upon the estimates. Subject to Clause 18.1, Estate Track will not be liable to you (or any other person) with respect to any loss or damage that you (or any other person) may suffer or incur as a result of any reliance placed upon any estimate.
7. Extra Services
7.1. From time to time during the Term, you may order Extra Services from Estate Track.
7.2. If Estate Track agrees to provide Extra Services to you, those Extra Services will be subject to these Terms and Conditions and, accordingly:
(a) unless the parties agree otherwise, the Extra Services shall form part of the subsisting Contract;
(b) any works and materials created in the course of the Extra Services and delivered to you by Estate Track shall be Content Deliverables, which shall be licensed to you in accordance with Clause 10;
(c) the limitations on warranties and the limitations and exclusions of liability set out in these Terms and Conditions shall apply to the Extra Services; and
(d) the Fees payable with respect to the Extra Services will be as specified on the Pricing Page; providing that if Fees are not so specified, they shall be calculated using Estate Track’s standard time-based charging rates.
7.3. Following the delivery by Estate Track to you of any Content Deliverables created by Estate Track in the course of the Extra Services (“Assets”), you should promptly, and in any event within 2 Business Days, notify Estate Track in writing if you accept the Asset or if a further revision of the Asset is required.
7.4. If you fail to give to Estate Track a written notice in accordance with Clause 7.6, then the relevant Asset shall be deemed to have been accepted.
7.5. If you require that the Asset is revised, then you must provide to Estate Track, at the same time as the giving of the notice, written details of the revisions required.
7.6. Extra Services shall include up to two revisions of the relevant Asset. You may request that Estate Track provides further revisions of the Asset and if Estate Track agrees to such request, Estate Track may charge for any related work at its standard time-based charging rates.
7.7. Any communication or support in relation to design, revisions or other work in relation to the Asset shall be by email only.
7.8. The Fees in relation to Extra Services shall be non-refundable.
8. Support, maintenance and availability
8.1. Estate Track may provide support to you during the Term in relation to the use of the Services and the identification and resolution of errors in the Services.
8.2. Support shall be provided remotely, save to the extent that the parties agree otherwise in writing.
8.3. For the avoidance of doubt, Estate Track shall have no obligation to provide support in respect of any issue caused by:
(a) the improper use of the Services by you; or
(b) any alteration to the Services made without the prior consent of Estate Track.
8.4. Estate Track may from time to time suspend the Services and/or access to the Services for the purposes of scheduled maintenance. Estate Track shall where practicable give to you prior written notice of scheduled maintenance that is likely to affect the availability of the Services. Estate Track shall where practicable ensure that scheduled maintenance affecting Service availability is carried out outside Business Hours.
8.5. Estate Track shall use reasonable endeavours to maintain the availability of the Services during the Term but does not guarantee continuous or uninterrupted availability.
8.6. Without prejudice to the generality of Clause 8.5, you acknowledge that downtime may arise in the following circumstances:
(a) Force Majeure Events;
(b) faults or failures of the internet or any public telecommunications network;
(c) faults or failures of Estate Track’s hosting infrastructure services providers or other data or services providers;
(d) hardware failures;
(e) faults or failures of your computer systems or networks;
(f) breaches by you of the Contract;
(g) scheduled and emergency maintenance; and/or
(h) any defects in Third Party Materials, including in relevant software used to power the Website.
8.7. The use of the Services shall be subject to reasonable resource limitations, including limitations relating to communication volumes, data storage, bandwidth and processor utilisation. You acknowledge and agree that Estate Track may implement technological measures to prevent or inhibit the use of the Services in any way that breaches the applicable resource limitations.
9. Co-operation and Online Accounts
9.1. Save to the extent that the parties have agreed otherwise in writing, you must provide to Estate Track, or procure for Estate Track from any third party identified by Estate Track, such:
(a) co-operation, support and advice; and
(b) information and documentation,
as are reasonably necessary to enable Estate Track to perform its obligations under the Contract.
9.2. You must provide to Estate Track, or procure for Estate Track, such access to your computer hardware, software, networks and systems as may be reasonably required by Estate Track to enable Estate Track to perform its obligations under the Contract.
9.3. Save as expressly provided in these Terms and Conditions, you shall be responsible for obtaining and, where relevant, paying for any licenses of third party software that may be required for the use of the Services.
9.4. You shall be responsible for ensuring that your passwords relating to the Services are securely constructed, are kept securely and are not disclosed to any unauthorised person; and you must notify Estate Track as soon as practicable if you become aware that any password relating to the Services has been or may have been compromised or misused.
9.5. You shall have and retain all rights to any Online Accounts that are created by you or by any third party on your behalf (and for the avoidance of doubt, excluding any Online Accounts which are created by Estate Track as integral part of the Services). Estate Track must not take any action that will prevent you from continuing to access and use such Online Accounts.
9.6. Estate Track may, on your request, from time to time, assist you with creation of Online Accounts. You acknowledge that, despite any such assistance from Estate Track, you remain solely responsible for such Online Accounts (including with relation to ownership of or access to such Online Accounts). This Clause 9.6 shall not apply to any Online Accounts which are created by Estate Track as an integral part of the Services.
9.7. You must promptly notify Estate Track of any complaints you may have regarding the Services. For information about the circumstances in which you may terminate the Contract in the event of a breach by Estate Track, see Clause 21.3
10. Your Materials, Content Deliverables and Trademarks
10.1. Promptly following receipt of a written request from Estate Track, you must supply to Estate Track Your Materials that are reasonably requested by Estate Track for the purpose of performing the Services.
10.2. Estate Track has the non-exclusive rights to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Your Materials to the extent reasonably required for the performance of Estate Track’s obligations and the exercise of Estate Track’s rights under these Terms and Conditions, together with the right to sub-license these rights.
10.3. From the delivery of Content Deliverables to you, you have the non-exclusive rights to copy, store, distribute, publish, adapt, edit and otherwise use those Content Deliverables (providing that Third Party Materials will be supplied subject to Clause 10.4, and you will be responsible for ensuring that you have a right to use Your Materials). This license will continue following the termination of the Contract.
10.4. Subject to any express written agreement between the parties, Estate Track shall ensure that the Third-Party Materials are:
(a) licensed to you in accordance with the relevant licensor’s standard licensing terms (which you acknowledge may be open source or Creative Commons licensing terms);
(b) licensed to you on reasonable terms notified by Estate Track to you; or
(c) sub-licensed to you by Estate Track on reasonable terms notified in writing to you by Estate Track.
10.5. Without prejudice to Clause 10.4, you acknowledge that stock photography that Estate Track provides to you will usually be licensed for a specific use only. Accordingly, you should check the licensing terms relating to stock photography before making any new use of it.
10.6. Promptly following receipt of a written request from Estate Track, you shall provide or make available to Estate Track representations of the requested Trademarks in a digital format reasonably satisfactory to Estate Track.
10.7. You acknowledge that the Trademarks shall constitute Your Materials, and you warrant to Estate Track that the use by Estate Track of the Trade Marks in accordance with these Terms and Conditions will not breach the terms of Clause 12.
11. Third Party Services
11.1. The Services are integrated with certain third-party services; and Estate Track may integrate the Services with additional third-party services at any time.
11.2. Estate Track may remove, suspend, deactivate or limit any third-party services integration at any time in its sole discretion.
11.3. The supply of third-party services may be under a separate contract or arrangement between you and the relevant third party. Where the supply of Third-Party Services is under such separate contract, Estate Track does not contract to supply the Third-Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third-Party Services. Fees may be payable by you to the relevant third party in respect of the integration and/or use of such Third-Party Services. In relation to integration with some Third-Party Services you may be required, in order to activate the integration, to have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider (including any customer relationship management system used by you).
11.4. You acknowledge that:
(a) the integration of third-party services may entail the transfer of Your Materials from the Services to the relevant third-party services; and
(b) where the supply of the Third-Party Services is under a separate contract between you and provider of Third-Party Services, Estate Track has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Your Materials resulting from any integration with any Third-Party Services.
11.5. Without prejudice to your other obligations under this Clause 11, where the supply of the Third-Party Services is under a separate contract as described in Clause 11.3 ,you must ensure that you have in place the necessary contractual safeguards to ensure that both:
(a) the relevant transfer of Your Personal Data to a provider of Third-Party Services is lawful; and
(b) the relevant use of Your Personal Data by a provider of Third-Party Services is lawful.
11.6. The use of some features of the Services may depend upon your enabling and agreeing to integrations between the Services and Third-Party Services.
11.7. You warrant to Estate Track that the transfer of Your Materials by Estate Track to a provider of Third-Party Services in accordance with this Clause 11 will not infringe any person’s legal or contractual rights and will not put Estate Track in breach of any applicable laws.
11.8. Subject to Clause 18.1:
(a) Estate Track gives no guarantees, warranties or representations in respect of any Third-Party Services; and
(b) Estate Track shall not be liable to you in respect of any loss or damage that may be caused by Third Party Services or any provider of Third-Party Services.
12. Acceptable use policy
12.1. You must ensure that Your Materials comply, and your use of the Services complies, with this Clause 12.
12.2. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
12.3. You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
12.4. Your Materials must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
12.5. Your Materials must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any Intellectual Property Right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
12.6. You must ensure that Your Materials are not and have never been the subject of any threatened or actual legal proceedings or other similar complaint.
12.7. Your Materials must be appropriate for all persons who have access to them or are likely to access them. Your Materials must not depict violence in an explicit, graphic or gratuitous manner. Your Materials must not be pornographic or sexually explicit. Your Materials must not contain any extremist political material.
12.8. Your Materials must not constitute or contain Spam, and you must not use the Services to store or transmit Spam. You must not send any Spam to any person using any email address or other contact details made available through the Services or that you find using the Services.
12.9. You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
12.10. You must not use the Services in any way which is liable to result in the blacklisting of any Estate Track IP addresses.
12.11. Your Materials must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies. Your Materials must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
12.12. You acknowledge that Estate Track may actively monitor Your Materials and the use of the Services, but Estate Track shall have no obligation to do so.
12.13. If there is a breach of this Clause 12, Estate Track may suspend the affected Services or any element thereof until such time as the breach is remedied.
12.14. Any breach of this Clause 12, shall be deemed to be a material breach of the Contract.
13. Fees and payments
13.1. You must pay the Fees to Estate Track in accordance with this Clause 13 and the other provisions of these Terms and Conditions.
13.2. Recurring Fees are payable by reference to a “Billing Date” which means,:
(a) the first day of each calendar month following the Go Live Date; or
(b) if Estate Track has agreed in writing that Fees for the Service will be paid on an annual basis: (i) the first day of the calendar month following the Go Live Date; and (ii) each anniversary of that day.
13.3. With respect to any portion of a month falling before the first Billing Date, Estate Track shall calculate the applicable Fees pro rata using any reasonable methodology.
13.4. Estate Track may elect to vary any element of the Fees payable by giving to you not less than 70 days’ prior written notice of the variation, providing that such notice must expire after the end of the Minimum Service Period.
13.5. Fees must be paid by direct debit in accordance with the instructions of Estate Track from time to time. Estate Track will send to you an invoice with respect to the Fees due on a Billing Date; and Estate Track will collect the Fees, in advance of the provision of the corresponding Services, on each Billing Date.
13.6. To the extent that Estate Track is unable to calculate Fees in advance, it may collect those Fees at any time following the provision of the corresponding Services.
13.7. If Estate Track is unable to collect any Fees using a direct debit mandate, you must:
(a) pay the relevant Fees; and
(b) sign up to a new direct debit mandate,
in each case within the period of 28 days following the date of failed collection; and any failure to comply with this Clause 13.7 shall constitute a material breach of the Contract.
13.8. Estate Track may suspend the provision of any or all of the Services if Estate Track is unable to collect any Fees by means of a direct debit mandate, or if any amount due to be paid by you to Estate Track under the Contract is overdue. You acknowledge that, during any period while the Services are suspended, the public interfaces of the Services may be unavailable and/or non-functional, emails may not be sent or received, data may not be collected on your behalf, and you may not have access to your data. Subject to Clause 18.1, Estate Track shall not be liable to you with respect to any loss or damage arising out of any such suspension, including any loss or damage arising out of any inability to send or receive emails.
13.9. You shall have no right to pause or suspend the Services and the obligation to pay the Fees.
13.10. If you do not pay any amount properly due to Estate Track under these Terms and Conditions, Estate Track may:
(a) charge you interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from you pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
13.11. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by you to Estate Track.
13.12. Except as described in Clause 3.7 and Clause 21.5, the Fees are not refundable.
14. Confidentiality obligations and publicity
14.1. Estate Track must:
(a) keep Your Confidential Information strictly confidential;
(b) not disclose Your Confidential Information to any person without your prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of Your Confidential Information as Estate Track uses to protect Estate Track’s own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to Your Confidential Information.
14.2. You must:
(a) keep Estate Track Confidential Information strictly confidential;
(b) not disclose Estate Track Confidential Information to any person without Estate Track’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of Estate Track Confidential Information as you use to protect your own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to Estate Track Confidential Information.
14.3. Notwithstanding Clauses 14.1 and 14.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
14.4. No obligations are imposed by this Clause 14 with respect to a party’s Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
14.5. The restrictions in this Clause 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
14.6. Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.
14.7. Estate Track reserves the right to include Estate Track branding and attribution credits in any website, email message or software application provided, modified or made available by Estate Track to you as an element of the Services.
14.8. Subject to the other provisions of this Clause 14, Estate Track may publish case studies and similar reports relating to you and the subject matter of the Contract on its websites and in its other marketing materials.
14.9. The provisions of this Clause 14 shall continue in force indefinitely following the termination of the Contract.
15. Data protection
15.1. Each party shall comply with the Data Protection Laws with respect to the processing of Your Personal Data.
15.2. You warrant to Estate Track that you have the legal right to disclose or make available all Personal Data that:
(a) is contained in Your Materials;
(b) you otherwise disclose or make available to Estate Track under or in connection with the Contract, including Personal Data relating to your business that is accessed by the Services or collected by Estate Track through any application programming interface.
15.3. You shall only supply to Estate Track, and Estate Track shall only process, in each case under or in relation to the Contract:
(a) the Personal Data of data subjects contained in Your Materials (and such other categories as may be agreed by the parties in writing); and
(b) Personal Data of any type contained in Your Materials (and such other types as may be agreed by the parties in writing).
15.4. Estate Track shall only process Your Personal Data for the purposes of providing, administering and monitoring the Services.
15.5. Estate Track shall only process Your Personal Data during the Term and for not more than 45 days following the end of the Term, subject to the other provisions of this Clause 15.
15.6. Estate Track shall only process Your Personal Data on your documented instructions (including with regard to transfers of Your Personal Data to any place outside the United Kingdom and European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
15.7. You hereby authorise Estate Track to make the following transfers of Your Personal Data:
(a) Estate Track may transfer Your Personal Data to its sub-processors in the jurisdictions identified in Clause 15.13, providing that such transfers must be protected by appropriate safeguards (namely, the use of standard contractual clauses and/or the Privacy Shield scheme); and
(b) Estate Track may transfer Your Personal Data to a country, territory or sector to the extent that the relevant data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
15.8. Estate Track shall promptly inform you if, in the opinion of Estate Track, your instructions relating to the processing of Your Personal Data infringe the Data Protection Laws.
15.9. Notwithstanding any other provision of the Contract, Estate Track may process Your Personal Data if and to the extent that Estate Track is required to do so by applicable law. In such a case, Estate Track shall inform you of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
15.10. Estate Track shall ensure that persons authorised to process Your Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
15.11. Estate Track and you shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for Your Personal Data.
15.12. Estate Track must not engage any third party to process Your Personal Data without your prior specific or general written authorisation. In the case of a general written authorisation, Estate Track shall inform you at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if you object to any such changes before their implementation, then you may terminate the Contract on 7 days’ written notice to Estate Track, providing that such notice must be given within the period of 7 days following the date that Estate Track informed you of the intended changes. Estate Track shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on Estate Track by this Clause 15.
15.13. As at the Effective Date, Estate Track is hereby authorised by you to engage, as sub-processors with respect to Your Personal Data, third parties within the following categories (and in the following jurisdictions): email system services providers; website and application hosting services providers; development and maintenance services providers; marketing and content creation services providers; and social media services providers. These services providers may provide their services in the UK or EU or, subject to Estate Track’s obligations in Clause 15.7, in the USA or elsewhere in the world.
15.14. Estate Track shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist you with the fulfilment of your obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
15.15. Estate Track shall assist you in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. Estate Track may charge you at its standard time-based charging rates for any work performed by Estate Track at your request pursuant to this Clause 15.15.
15.16. Estate Track must notify you of any Personal Data breach affecting Your Personal Data without undue delay and, in any case, not later than 48 hours after Estate Track becomes aware of the breach.
15.17. Estate Track shall make available to you all information necessary to demonstrate the compliance of Estate Track with its obligations under this Clause 16 and the Data Protection Laws. Estate Track may charge you at its standard time-based charging rates for any work performed by Estate Track at your request pursuant to this Clause 15.17.
15.18. Estate Track shall delete Your Personal Data after the provision to you of services relating to the processing and before the end of the period of 45 days following termination, save to the extent that applicable law requires storage of the relevant Personal Data. If you request a copy of Your Personal Data before deletion, Estate Track will provide such copy to you at no charge.
15.19. Estate Track shall allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you in respect of the compliance of Estate Track’s processing of Your Personal Data with the Data Protection Laws and this Clause 15. Estate Track may charge you at its standard time-based charging rates for any work performed by Estate Track at your request pursuant to this Clause 15.19.
15.20. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to the processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.
15.21. As part of the Core Services Estate Track may include within the Website generic template forms of a privacy policy and/or cookies policy. You acknowledge that the policies are not bespoke materials specific to you and you are solely responsible for ensuring that any such policies are suitable, accurate, complete and fulfill any compliance requirements you may have under any Data Protection Laws.
16. Warranties and warranty limitations
16.1. Estate Track shall provide the Services with reasonable skill and care.
16.2. You warrant to Estate Track that you have the legal right and authority to enter into the Contract and to perform your obligations under these Terms and Conditions.
16.3. All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
16.4. You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, Estate Track gives no warranty or representation that the Website or Services will be wholly free from defects, errors and bugs.
16.5. You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, Estate Track gives no warranty or representation that the Website or Services will be entirely secure.
16.6. You acknowledge that the Website is only designed to be compatible with the current versions of Chrome, Firefox, Edge and Safari from time to time; and Estate Track does not warrant or represent that the Website or Services will be compatible with any other software.
16.7. You acknowledge that changes to the hardware, software and/or configuration of your computer systems after a Go Live Date may affect the compatibility of those computer systems with the Service and may reduce or negate the benefits of the Services to you.
16.8. You are responsible for ensuring that the Website incorporates appropriate legal documentation (such as terms and conditions of use, a privacy notice and a cookie notice) required by law or necessary to manage legal risk associated with the Website. You acknowledge that while Estate Track may provide law-related information to you, and may refer you to suppliers of legal documentation for the Website, Estate Track will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Website or Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, Estate Track does not warrant or represent that the Website or the use of the Website or Services by you or any other person will not give rise to any legal liability on your part or any other person’s part. You should seek legal advice from a qualified solicitor or other legal professional before placing reliance upon any legal information that Estate Track may make available to you.
16.9. You acknowledge that delivery of emails can never be guaranteed by an email services provider; accordingly, Estate Track does not guarantee the delivery of emails modified by or sent using the Services. You further acknowledge that the sending of bulk email may result in the blacklisting of domain names associated with the bulk mailing, that such blacklisting is outside the control of Estate Track, and that Estate Track will not be responsible for any loss or damage which may arise out such blacklisting.
16.10. You acknowledge that the validity and enforceability of the Contract will not be affected by any discovery, whether made by you or Estate Track or a third party, that Your Materials do not comply with Clause 12, without prejudice to Estate Track’s rights under Clause 12.
16.11. You acknowledge that changes to the content and/or structure of a website may affect the performance of the website in the search engine results pages, that such effects are outside the control of Estate Track, and that Estate Track will not be responsible for any loss or damage which may arise out changes in such performance.
16.12. You acknowledge that Estate Track relies upon third party data sources in relation to the provision of the Services, that Estate Track does not have direct control over those data sources and that Estate Track does not guarantee the accuracy of that data. Accordingly, neither a failure to supply such data, nor any inaccuracy in such data, shall constitute a breach of the Contract.
17. Indemnity
17.1. You shall indemnify and shall keep indemnified Estate Track against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Estate Track and arising directly or indirectly as a result of any breach or alleged breach by you of Clause 12.
18. Limitations and exclusions of liability
18.1. Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
18.2. The limitations and exclusions of liability set out in this Clause 18 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 18.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
18.3. Estate Track shall not be liable to you in respect of any losses arising out of a Force Majeure Event.
18.4. Estate Track shall not be liable to you in respect of any loss of profits or anticipated savings.
18.5. Estate Track shall not be liable to you in respect of any loss of revenue or income.
18.6. Estate Track shall not be liable to you in respect of any loss of use.
18.7. Estate Track shall not be liable to you in respect of any loss of business, contracts or opportunities.
18.8. Estate Track shall not be liable to you in respect of any loss or corruption of any data or database; however, this Clause 18.8 shall not apply in relation to any loss or damage arising out of a breach of Clause 14 or 15.
18.9. Estate Track shall not be liable to you in respect of any special, indirect or consequential loss or damage.
18.10. The liability of Estate Track to you under the Contract in respect of any event or series of related events shall not exceed the greater of:
(a) GBP 1,000; and
(b) the total amount paid and payable by you to Estate Track under the Contract in the 12-month period preceding the commencement of the event or events.
18.11. The aggregate liability of Estate Track to you under the Contract shall not exceed GBP 100,000.
18.12. Estate Track shall not be liable to you in respect of any loss or damage arising out of any delay in email delivery or non-delivery of emails.
18.13. Estate Track shall not be liable to you in respect of any loss or damage arising out of:
(a) any failure by any third party to supply any data for publication on the Website; or
(b) subject to Clause 3.9, the publication on the Website of any data supplied directly or indirectly by any third party.
19. Force Majeure Event
19.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
20. Term
20.1. The Contract shall come into force upon the Effective Date.
20.2. The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 21 or any other provision of these Terms and Conditions.
21. Termination
21.1. The effective date of termination of the Contract under this Clause 21.1 must be after the end of the Minimum Service Period. Subject to this, either party may terminate the Contract by giving to the other party written notice of termination, in which case the Contract will be terminated at the end of the calendar month following the calendar month in which the notice of termination is given.
21.2. Estate Track may terminate the Contract immediately by giving written notice of termination to you if you commit a material breach of the Contract. You may terminate the Contract immediately by giving written notice of termination to Estate Track if:
(a) Estate Track commits an irremediable material breach of the Contract; or
(b) Estate Track commits a remediable material breach of the Contract and fails to remedy that material breach within the period of 30 days following the date of receipt of a written notice from you requiring Estate Track to do so.
21.3. Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or
(d) if that other party is an individual: (i) that other party dies; (ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or (iii) that other party is the subject of a bankruptcy petition or order.
21.4. You acknowledge that, as you may complete the sign-up process for the Contract without the intervention of Estate Track, Estate Track shall have the right to terminate the Contract on written notice to you at any time during the period of 7 days following the Effective Date. If Estate Track terminates the Contract under this Clause 21.4, then Estate Track will give to you a full refund of any Fees paid before such termination.
21.5. All of the parties’ rights to terminate the Contract are expressly set out in these Terms and Conditions. For the avoidance of doubt, you will have no right to terminate the Contract, or be relieved of any obligation to pay the Fees, as a result of a non-material breach by Estate Track.
22. Effects of termination
22.1. Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 3.8, 3.9, 6.3, 10.3, 13.8, 13.10 to 13.12, 14, 15, 17, 18, 22 and 24 to 33.
22.2. Except to the extent that these Terms and Conditions expressly provide otherwise, the termination of the Contract shall not affect the accrued rights of either party.
22.3. Save to the extent expressly provided otherwise in these Terms and Conditions, upon the termination of the Contract all Services shall automatically and immediately terminate.
22.4. Subject to Clause 3.7 and Clause 21.4, within 10 days following the termination of the Contract for any reason you must pay to Estate Track any Fees in respect of Services provided to you before the termination of the Contract, without prejudice to Estate Track’s other legal rights.
23. Notices
23.1. Any notice given under these Terms and Conditions must be in writing, whether or not described as a “written notice” in these Terms and Conditions.
23.2. Any notice given by one party to the other under these Terms and Conditions must be:
(a) delivered personally;
(b) sent by courier;
(c) sent by recorded signed-for post; or
(d) sent by email,
using the relevant contact details set out at the start of these Terms and Conditions or provided by you during the sign-up process.
23.3. The addressee and contact details may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 23.
23.4. A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:
(a) in the case of notices delivered personally, upon delivery;
(b) in the case of notices sent by courier, upon delivery;
(c) in the case of notices sent by post, 48 hours after posting; and
(d) in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent).
24. Subcontracting
24.1. Subject to any express restrictions elsewhere in these Terms and Conditions, Estate Track may subcontract any of its obligations under the Contract.
24.2. Subject to Clause 18.3 and the other express provisions of the Contract, Estate Track shall remain responsible to you for the performance of any subcontracted obligations.
25. Assignment
25.1. You hereby agree that Estate Track may assign, transfer or otherwise deal with its contractual rights and obligations under these Terms and Conditions.
25.2. You must not assign, transfer or otherwise deal with your contractual rights and/or obligations under these Terms and Conditions without the prior written consent of Estate Track, providing that you may assign the entirety of your rights and obligations under these Terms and Conditions to any member of your group of companies or to any successor to all or a substantial part of your business from time to time. You must give to us advance written notice of any such assignment.
26. No waivers
26.1. No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.
26.2. No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.
27. Severability
27.1. If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
27.2. If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
28. Third party rights
28.1. The Contract is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.
28.2. The exercise of the parties’ rights under the Contract is not subject to the consent of any third party.
29. Variation
29.1. The Contract may not be varied except by means of a written document signed by or on behalf of each party.
30. Entire agreement
30.1. The main body of these Terms and Conditions and the Pricing Page shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
30.2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.
30.3. The provisions of this Clause 30 are subject to Clause 18.1.
31. Law and jurisdiction
31.1. These Terms and Conditions shall be governed by and construed in accordance with English law.
31.2. Any disputes relating to the Contract shall be subject to the exclusive jurisdiction of the courts of England.
32. Definitions
32.1. In these Terms and Conditions:
“Billing Date” has the meaning given to it in Clause 13.2;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day;
“Estate Track” means Growth Track Limited, a company incorporated in England and Wales (registration number 07651138) having its registered office at 3 Stirling Court, Stirling Way, Borehamwood, Hertfordshire WD6 2FX;
“Estate Track Confidential Information” means
(a) any information disclosed by or on behalf of Estate Track to you during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by you (acting reasonably) to be confidential; and
(b) the financial terms of the Contract (excluding information on the Pricing Page);
“Confidential Information” means Estate Track Confidential Information and Your Confidential Information;
“Content Deliverables” means those works and materials created by or on behalf of Estate Track in the course of Estate Track providing the Services that are delivered to you, or that Estate Track has an obligation to deliver to you, under these Terms and Conditions;
“Contract” means a contract made under these Terms and Conditions between Estate Track and you;
“Core Services” means the set of services described in Clause 2.1;
“Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
“Effective Date” means the date upon which you complete the online sign-up process for the Services;
“Email Services” means the services described in Clause 4.1;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Extra Services” means any additional services not otherwise specified in these Terms and Conditions that Estate Track agrees to provide to you from time to time, which may include design services, marketing services, consulting and/or service management;
“Fees” means:
(a) the amounts specified on the Pricing Page;
(b) such other amounts as may be agreed in writing by the parties from time to time; and
(c) to the extent that these Terms and Conditions provide for time-based fees, amounts calculated by multiplying Estate Track’s standard time-based charging rates by the time spent providing the relevant Services or performing the relevant work;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Go Live Date” means, the date when Estate Track notifies you that the Website is available for live use;
“Hosted Data” means all data, works and materials: uploaded to or stored on the Hosting Platform by you or by any third party using the Website; or supplied by you to Estate Track for uploading to, transmission by or storage on the Hosting Platform;
“Hosting Platform” means a platform managed by Estate Track and used by Estate Track to provide a Service, including the application, database, system and server software used to provide the Service, and the computer hardware on which that application, database, system and server software is installed;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Leads Service” means the service described in Clause 6.1;
“Minimum Service Period” means, with respect to the Core Services, the minimum period during which Estate Track shall provide and you shall receive (and pay for) the Core Services, as specified in Clause 2;
“Online Account” means email accounts and user/customer accounts on any third-party website or software application accessible via the internet, that are used by Estate Track in the course of providing the Services;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
“Pricing Page” means the version of the pricing page on the Estate Track website at the time of ordering of the relevant Services, subject to any variations and updates in accordance with these Terms and Conditions;
Privacy and Electronic Communications (EC Directive) Regulations 2003 means the Privacy and Electronic Communications (EC Directive) Regulations 2003 as may be updated, amended and superseded from time to time;
“Services” means the Core Services and any Extra Services that Estate Track provides to you, or has an obligation to provide to you, under these Terms and Conditions from time to time;
“Site Files” means:
(a) the database content for the Website; and
(b) those files forming part of the Website which are necessary to reproduce the visual appearance of the front-end of the Website,
in such format or formats as Estate Track may determine in its sole discretion;
“Social Media Platforms” means Facebook, Twitter and LinkedIn, and any other social media platforms agreed by the parties in writing from time to time;
“Social Service” means the service described in Clause 5.1;
“Spam” means:
(a) any electronic messages that breach applicable anti-spam laws, including the Privacy and Electronic Communications (EC Directive) Regulations 2003; and
(b) any bulk and unsolicited electronic messages;
“Term” means the term of the Contract, commencing in accordance with Clause 20.1 and ending in accordance with Clause 20.2;
“Terms and Conditions” means the main body of these Terms and Conditions and the Pricing Page, including any amendments made to either from time to time;
“Third Party Materials” means those elements of the works and materials that are made available or delivered to you, or that Estate Track has an obligation to make available or deliver to you, under the Contract (excluding Your Materials), the Intellectual Property Rights in which are owned by a third party;
“Third Party Services” means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Services by Estate Track from time to time and where the supply of the third party services is under a separate contract or arrangement between you and the relevant third party;
“Trademarks” means your registered and unregistered trademarks;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Web Service” means the service described in Clause 3.1;
“Website” means a website created by Estate Track for you under the Contract;
“Website Creation Service” means the design and development of the Website by Estate Track;
“Website Dashboard” means a control interface for the Website giving you limited rights to add, delete and edit content on the Website;
“Website Hosting Service” means those web hosting services which will be made available by Estate Track to you as a service via the internet in accordance with these Terms and Conditions;
“Website Maintenance Service” means updating the software for the Website and/or editing and updating the content of the Website;
“Your Confidential Information” means:
(a) any information disclosed by you or on your behalf to Estate Track during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by Estate Track (acting reasonably) to be confidential; and
(b) Your Personal Data;
“Your Materials” means all works and materials supplied by or on your behalf to Estate Track for use in connection with the Services, including:
(a) the Hosted Data;
(b) the content of emails sent using the Email Services; and
(c) any lead data collected and made available to you by the Leads Service (including lead data which is collected by installations of the tool on third party websites and provided to you on account of the geographical area of operation of your business); and
“Your Personal Data” means any Personal Data that is processed by Estate Track on your behalf in relation to the Contract.
33. Interpretation
33.1. These Terms and Conditions are accompanied by explanatory text. This explanatory text is for guidance only, and does not supplement, replace or otherwise affect the meaning of these Terms and Conditions.
33.2. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
33.3. The Clause headings do not affect the interpretation of these Terms and Conditions.
33.4. In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

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