REFERRER TERMS AND CONDITIONS
These terms and conditions are between the Referrer (as identified in the Referrer Form) and Landmark Information Group Limited (trading as Optimus) (registered no. 02892803) (Optimus, we, us or our). Our registered office is at 5-7 Abbey Court, Eagle Way, Sowton Industrial Estate, Exeter, Devon, EX2 7HY, United Kingdom.
Optimus manages panels of conveyancing professionals and surveyors (defined below as Optimus Panel Members) and enables Prospective Customers (defined below) to request quotes for services via the Optimus Platform (defined below). The Referrer is able to refer Prospective Customers to Optimus Panel Members via the Optimus Platform subject to and in accordance with these terms and conditions.
AGREED TERMS
1 INTERPRETATION
The following definition and rules of interpretation apply in this Agreement:
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Code of Conduct: any and all regulatory provisions in force from time to time that govern, as applicable, the work of the Referrer, Optimus and/or the provision of the services by an Optimus Panel Member, including, but not limited to, regulations made under the Financial Services and Markets Act 2000 from time to time to the extent that the Referrers are regulated by the Financial Conduct Authority;
Commission the sums payable by Optimus to the Referrer in consideration for the Referral of an End Customer to an Optimus Panel Member, the current rate being as set out in the Optimus Platform and selected by the Referrer when registering to be a Referrer (and thereafter such rates as may be notified by Optimus in the Optimus Platform from time to time);
Customer Data: the data inputted into the information fields of the Optimus Platform by the Referrer;
Data Protection Legislation: the retained EU law version of the General Data Protection Regulation 2016 (2016/679) as defined in section 3(10) of the Data Protection Act 2018 (DPA); the DPA; the Electronic Communication (EC Directive) Regulations 2003; and all other applicable laws and regulations that relate to the protection and processing of personal data and privacy, together with any mandatory guidance and codes of practice issued by the United Kingdom’s Information Commissioner, all as amended, replaced or superseded from time to time;
End Customer: a Prospective Customer who has issued Instructions to an Optimus Panel Member;
Instructions: instructions from an End Customer to an Optimus Panel Member to provide one or more of: home surveying services; and/or home conveyancing services following a Referral (and Instruct shall be interpreted accordingly);
Maintenance and Support: any error corrections, updates and upgrades that Optimus may provide or perform in connection with the Optimus Platform;
Optimus Panel Member: the property law professionals (such as a conveyancing firm, law firm or conveyancer) and/or professional land or property surveyors (such as a surveying firm, or a chartered surveyor) that provide quotes for their respective services to Prospective Customers via the Optimus Platform;
Optimus Platform: means the online portal and software solutions provided and maintained by Optimus for the purpose of allowing a referrer, including the Referrer, to Refer Prospective Customers to Optimus Panel Members and, following the issuing of Instructions, to allow the Referrer to track the status and progress of such Referrals, Instructions and any Commission due;
Optimus’ Terms of Use: the terms of use governing End Customers’ use of and access to the Optimus Platform and use of estimates provided via the Optimus Platform, as in force from time to time (the current version of which can be found at https://www.optimus-move.co.uk/wp-content/uploads/2020/09/Optimus_Customer_TermsofUse_PrivacyNotice_Jan2020.pdf;
Privacy Policy: the Optimus’ privacy notice (as updated by Optimus from time to time). A copy of the current Privacy Policy can be found at the following URL: https://www.landmark.co.uk/privacy-policy/;
Prospective Customer: the client or customer or prospective client or customer of the Referrer Referred by the Referrer to an Optimus Panel Member via the Optimus Platform;
Referral: a referral by the Referrer of a Prospective Customer to an Optimus Panel Member through the Optimus Platform (and Refer, Referred and Referring shall be interpreted accordingly);
Referrer Form: the form accompanying these terms and conditions in which details of the Referrer and the commercial terms for Referrals are set out; and
Term: has the meaning set out in clause 8.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 Unless otherwise expressly stated, a reference in these terms and conditions to writing or written does include email.
2 SCOPE AND SERVICES
2.1 Optimus is contracting with the Referrer on a non-exclusive basis in order for the Referrer to identity and introduce Prospective Customers to Optimus Panel Members.
2.2 The Referrer shall introduce and refer Prospective Customers to Optimus Panel Members via the Optimus Platform subject to and in accordance with these terms and conditions.
2.3 The parties to this Agreement acknowledge and confirm that, following a Referral and provided the End Customer issues Instructions to the Optimus Panel Member, the End Customer will become the direct client of the Optimus Panel Member.
2.4 The Referrer shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind Optimus or an Optimus Panel Member in any way, and shall not do any act which might reasonably create the impression that the Referrer is so authorised.
2.5 Where a Referrer is authorised under an applicable Code of conduct, if the Referrer ceases to be authorised under the applicable Code of Conduct and/or cannot continue to operate in its usual course of business because of the application of a Code of Conduct for any reason (whether temporarily or on a permanent basis), Optimus shall withdraw the Referrer’s access to the Optimus Platform immediately.
3 OPTIMUS’ OBLIGATIONS
3.1 Optimus shall use reasonable commercial endeavours to procure that the Optimus Panel Members provide the Selected Services:
3.1.1 with reasonable care and skill and by means of appropriately qualified personnel;
3.1.2 in accordance with the requirements of the Referrer and the End Customer; and
3.1.3 in accordance with all applicable Codes of Conduct from time to time.
4 OPTIMUS PLATFORM
4.1 In consideration for the Referrals, Optimus hereby grants to the Referrer on and subject to the terms of this Agreement a non-exclusive, non-transferable right for the duration of the Term to allow the Referrer to access the Optimus Platform and to use it solely for the purpose of making Referrals and making and tracking Instructions. 4.2 In relation to the Optimus Platform, the rights provided under this clause 4 are granted to the Referrer only, and shall not (except where otherwise agreed in writing between the parties) be considered granted to any third party including, without limitation, any subsidiary or holding company of the Referrer.
4.3 The Referrer shall not:
4.3.1 copy or attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Optimus Platform except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties;
4.3.2 except to the extent and in the circumstances expressly required to be permitted by Optimus or by law, attempt to decompile, disassemble, reverse engineer, modify or otherwise reduce to human-perceivable form all or any part of the Optimus Platform;
4.3.3 access all or any part of the Optimus Platform in order to build a product or service which competes with the Optimus Platform;
4.3.4 use the Optimus Platform to provide services to third parties (other than as permitted by this Agreement); or
4.3.5 attempt to obtain, or assist third parties in obtaining, access to the Optimus Platform, other than as provided by this Agreement.
5 SYSTEM SECURITY
5.1 The Referrer shall use its best endeavours to prevent any unauthorised access to, or use of, the Optimus Platform and shall notify Optimus immediately it becomes aware of any unauthorised access to, use of or other security incident affecting the Optimus Platform. The Referrer shall respond without delay to all queries and requests for information from Optimus about any such security incidents.
5.2 The Referrer shall ensure that itself, and its respective employees, agents and contractors keep any password provided for use of the Optimus Platform secure and confidential.
5.3 The Referrer shall, at all times during and after the Term, indemnify Optimus and keep Optimus indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Optimus and arising out of the Referrer’s failure to properly observe its obligations under this clause 5.
6 REFERRER OBLIGATIONS
6.1 The Referrer:
6.1.1 shall identity and introduce Prospective Customers and make Referrals through the Optimus Platform in consideration for the Commission (notwithstanding that the Referrer is not under any obligation to procure a minimum number of Referrals at any time);
6.1.2 shall ensure it draws the Optimus’ Terms of Use and the Privacy Policy to the attention of Prospective Customers;
6.1.3 shall at all material times act reasonably and in good faith towards: Prospective Customers; Optimus Panel Members; and Optimus at all times and shall cooperate with and provide such reasonable information that is within the Referrer’s possession or control to Optimus and an Optimus Panel Member that has been Instructed by an End Customer in order to progress an Instruction and/or to deal with any issue or complaint;
6.1.4 shall not influence or constrain nor seek to influence or constrain the professional judgement of the Optimus Panel Members in relation to the advice being given to the End Customer;
6.1.5 shall not cause damage to the reputation of Optimus or an Optimus Panel Member;
6.1.6 agrees that Optimus shall have no liability for any act or omission of the Referrer in respect of professional services provided by them to an End Customer, irrespective of whether or not any Optimus Panel Member’s services are used in connection with such professional services;
6.1.7 acknowledges and accepts that if an End Customer Instructs an Optimus Panel Member, following a Referral, that the End Customer and the Optimus Panel Member will enter into a direct contractual relationship and that Optimus is not responsible or liable for, nor does it warrant or guarantee, the accuracy or completeness of the services provided. Optimus shall have no liability to the Referrer or to an End Customer in connection with the performance of the services by an Optimus Panel Member;
6.1.8 shall not approach, solicit or make contact with any Optimus Panel Member directly for the purpose of obtaining any of the services during the Term of this Agreement and for 12 months after its termination;
6.1.9 confirms that nothing in this Agreement and/or any acts it requests from Optimus or the Optimus Panel Members under this Agreement shall require Optimus to be regulated by the Financial Conduct Authority (or any successor or replacement financial services regulator) at any time;
6.1.10 comply with all applicable laws and regulations with respect to its activities under this Agreement and the Referrer Form; and
6.1.11 carry out all of its other responsibilities as set out in this Agreement and/or otherwise agreed between the parties from time to time in a timely and efficient manner.
7 CUSTOMER DATA
7.1 The Referrer (or, as appropriate, the person on behalf of which it is sending Instructions, depending on its arrangements with that person) shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Referrer shall also ensure that it is entitled to transfer the relevant Customer Data (including, without limitation, any Personal Data) to Optimus so it may lawfully utilise the Customer Data in accordance with this Agreement on the Referrer’s behalf.
7.2 The Referrer hereby grants to Optimus and the Optimus Panel Members a limited licence to use, store and copy the Customer Data to the extent necessary to facilitate Referrals via the Optimus Platform and for the Optimus Panel Members’ to provide their services (if Instructed).
7.3 The Referrer acknowledges and agrees that where the Optimus Platform is used to send information and data to Optimus and/or an Optimus Panel Member who also uses the Optimus Platform (including, without limitation, a surveyor or solicitor), such data and information will remain available for such Optimus Panel Member’s use, notwithstanding the earlier termination of this Agreement.
7.4 In the event of any loss or damage to the Customer Data, the Referrer’s sole and exclusive remedy shall be for Optimus to use reasonable commercial endeavours to restore the Customer Data that is lost or damaged from the latest back-up maintained by Optimus. Optimus shall not be responsible for any loss, destruction, alteration or disclosure of the Customer Data caused by any third party, including the Optimus Panel Members, (except those third parties sub-contracted by Optimus to perform services related to Customer Data maintenance and back-up).
7.5 Optimus shall be entitled to use Customer Data internally to monitor, develop and improve its software and services (including the Optimus Platform) and the customer experience, ensuring the system is set up to maximise performance (including load/balance of servers).
7.6 Optimus shall be entitled to use and disclose information collated from the Customer Data for its own business purposes, provided that such re-use does not identify the Referrer or any living person or allow the details of any Instructions generated by an End Customer to be identified. For the purposes of this clause 7.6, “business purposes” means use, sale, re-sale or distribution of such data in the products and services of the members of the Optimus Group, and to provide aggregated statistics. This clause 7.6 shall survive the expiry or termination of the Agreement, howsoever arising, for so long as Optimus operates the Optimus Platform or any service that may replace, substitute or supplement the Optimus Platform.
8 COMMENCEMENT AND TERM
This Agreement shall take effect from the date that is set out in the signed and submitted Referrer Form, or the date on which the Referrer Form is completed and submitted online by the Referrer, and shall continue until terminated by either party at any time by giving the other not less than 14 days’ written notice to terminate. On the expiry of a notice to terminate served in accordance with this clause, this Agreement shall terminate with immediate effect (Term).
9 COMMISSION AND PAYMENT
9.1 The Referrer shall be entitled to Commission by Optimus in consideration for a Referral, provided the Instructions were received by the Optimus Panel Member as a result of a Referral and during the Term.
9.2 Optimus shall pay the Commission to the Referrer in respect of each completed Instruction and shall be calculated by reference to the Commission rates set out in the Optimus Platform.
9.3 If an Optimus Panel Member leaves or is removed as an Optimus Panel Member, Optimus will continue to pay the Commission in respect of the services provided by such Optimus Panel Member prior to their date of leaving or removal until all sums payable under the terms of this Agreement have been paid to the Referrer in full. Where an Instruction has been re-panelled pursuant to the terms of the Optimus’ Terms of Use, Commission shall only be payable once in respect of the original Instruction.
10 SELF-BILLING
10.1 For the purposes of this clause 10, Optimus is the self-biller and the Referrer is the self-billee.
10.2 The Referrer will, and Optimus acknowledges and agrees that the Referrer will:
10.2.1 in respect of Commission owed during the Term, issue self-billed invoices to Optimus,
for and on behalf of the Referrer;
10.2.2 in respect of Commission owed during the Term, issue each self-billed invoice showing the Referrer’s name, address and VAT registration number, as set out by the Referrer in the Referral Form, together with all the other details which constitute a full VAT invoice;
10.2.3 notify the Referrer if Optimus’s VAT registration number changes and, where the Optimus’ VAT registration number changes, the Referrer shall submit a new Referral Form in order for a new self-billing arrangement to come in to effect; and
10.2.4 inform the Referrer if the issue of any self-billed invoice is to be outsourced to, and issued by, a third party to the Referrer for and on behalf of Optimus.
10.3 The Referrer acknowledge and agrees that it shall:
10.3.1 in respect of Commission owed during the Term, accept each self-billed invoice issued to the Referrer by Optimus for and on behalf of the Referrer;
10.3.2 not raise a sales invoice for any Commission; and
10.3.3 notify Optimus immediately if the Referrer is no longer VAT registered, or if the Referrer’s VAT registration number changes, or if the Referrer transfers its business, or part of its business, as a going concern; and where the Referrer’s VAT registration number changes, the Referrer shall submit a new Referral Form in order for a new self-billing arrangement to come in to effect.
11 CONFIDENTIALITY
11.1 The Referrer undertakes that it shall:
11.1.1 not use any confidential information gained as result of entering this Agreement for any purpose other than to perform its obligations under this Agreement; and
11.1.2 not at any time disclose to any person any confidential information gained as a result of entering this Agreement, in particular any confidential information relating to the Optimus Platform, Prospective Customers, End Customers, Optimus Panel Members or the business affairs of Optimus.
12 DATA PROTECTION
Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 (thirty) days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
13 LIMITATION OF LIABILITY
13.1 Nothing in this Agreement shall limit or exclude liability for death or personal injury caused by its negligence or fraud or fraudulent misrepresentation, wilful default or any deliberate act or omission by a party. 13.2 Subject to clause 13.1 and 6.1.7:
13.2.1 neither party shall be liable to the other, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and/or similar losses, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
13.2.2 each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to amount equal to the greater of (a) £500,000; and (b) total Commissions paid to the Referrer in the 12 months immediately preceding the events giving rise to the claim.
13.3 Nothing in this Agreement shall limit or exclude the liability between the Prospective Customer and/or End Customer to either Optimus or the Referrer. Any such issues will be a matter between the Prospective Customer and/or End Customer directly with either Optimus or the Referrer.
14 TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of any term of this Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so;
14.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
14.1.3 the other party (being an individual) is the subject of a bankruptcy petition or order, or dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
15 GENERAL
15.1 Anti-Bribery. The Referrer shall comply with all applicable laws, statutes, regulations, codes and sanctions relating to anti-bribery and anti-corruption in England, including but not limited to the Bribery Act 2010.
15.2 Modern Slavery. In performing its obligations the Referrer shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015.
15.3 Assignment. The Referrer shall not assign, delegate, transfer or subcontract any or all of its rights or obligations under this Agreement without the prior written consent of Optimus.
15.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
15.5 Force Majeure. Optimus shall have no liability to the Referrer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.
15.6 Notices.
15.6.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, given by a person with adequate authority within the organisation that is serving the notice or other communication to do so, addressed to the receiving party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered by hand, pre-paid first-class post or other next working day delivery service or by email.
15.6.2 Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or if sent by email at the time of transmission provided such time is within normal business hours at the place of receipt. If it the date and time of transmission is outside of normal business hours, the notice or other communication sent by email shall be deemed to have been received at 9am on the next Business Day in the place of receipt. 15.6.3 The provisions of this clause 15.6 do not apply to the service of any proceedings or other documents in any legal action.
15.7 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
15.8 Third Party Rights. These terms and conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.
15.9 Variation. No variation to this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.10 Waiver. A failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these terms and conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.11 Governing Law and Jurisdiction. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of England and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim