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Estate Agent Terms and Conditions

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Terms and Conditions for the supply of Service

INFORMATION ABOUT US AND OUR CONTRACT WITH YOU

We means Unique Home Stays Ltd (a company registered in England & Wales at Lantern Cottage, Trebudannon, Newquay, Cornwall, TR8 4LP under company number 04502158). (’UHS’, ’we’, ’us’ or ’our’).

You, the Estate Agent, refers to the legal person entering into these terms and conditions with us or otherwise subscribing for the Service. If an individual the signatory must be 18 years or over (’Estate Agent’, ’you’ or ’your’).

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Definitions

In these Service terms and conditions the following words and phrases shall have the following meanings:

"Business Day" means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

"Charges" means the charges payable by you for the supply of the Services in accordance with clause 5;

"Contract Commencement Date" has the meaning given in clause 2.2;

"Contract" means the contract between you and us for the supply of Services in accordance with these terms and conditions;

"Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Introduction" means the provision by us of the contact details of a Prospective Buyer in writing, and Introduce, Introduces, and Introduced shall be interpreted accordingly;

"Introduction Date" means for each Prospective Buyer, the date during the term of these terms and conditions on which we first Introduces such Prospective Buyer to you;

"Introduction Period" means for each Prospective Buyer, two years from the Introduction Date, irrespective of whether such periods ends before or after the date of termination of these terms and conditions.

"Property" means any of the properties which are advertised for sale by us on our Website at any time;

"Prospective Buyer" means a potential buyer of properties which are advertised for sale by us on our Website, in our newsletter or introduced verbally as part of the Services;

"Seller" means the person who is selling the Property;

"Service" means the following services to be provided by us to you:

a) The advertising of the Property on our Website, newsletter or via email to the Prospective Buyer;

b) The making of Introductions in relation to the Property; and

c) Any other associated services to identify the rental potential of the Property, for example property visits.

and references to "Services" shall be construed accordingly;

"Services Offer" an email sent by us to you offering to provide Services relating to the Property;

"UHS Property Information" means any information in our possession relating to the Property.

"Website" means the Web site at www.uniquehomestays.com and references to "Our Websites" shall be construed accordingly.

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1. Commencement and Duration

1.1 These terms and conditions shall commence on the date when they have been agreed in writing by the parties and shall continue, until the Property is sold or withdrawn from the market unless terminated earlier in accordance with clause 10 (Termination). Notwithstanding, either party can give 12 weeks written notice to terminate these terms and conditions.

1.2 If there are no uncompleted Contracts as at the date notice to terminate is served under clause 1.1, such notice shall terminate these terms and conditions with immediate effect.

1.3 The parties shall not enter into any further Contracts after the date on which notice to terminate is served under clause 1.1.

1.4 You may procure any of the Services by agreeing a Contract with us pursuant to clause 2 (The Services).

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2. The Services

2.1 A Services Offer constitutes an offer by you to us to purchase Services in accordance with these terms and conditions.

2.2 The Services Offer shall be deemed to be accepted on the earlier of:

2.2.1 you issuing written acceptance of the Services Offer; or

2.2.2 you confirming verbal acceptance of the Services Offer, which is subsequently confirmed in writing. at which point and on which date a Contract shall come into existence (Contract Commencement Date).

2.3 These terms and conditions apply to the Contract to the exclusion of any other terms which are implied by trade, custom, practice or course of dealing.

2.4 To the extent that any of the terms in a Contract shall conflict with these terms and conditions, these terms and conditions shall prevail unless stated to the contrary in the Contract.

2.5 As part of the Services provided under these terms and conditions, we will identify Prospective Buyers for you and seek to make Introductions of such persons on these terms and conditions.

2.6 We shall:

2.6.1 serve you faithfully and diligently and not to allow its interests to conflict with its duties under these terms and conditions;

2.6.2 use its reasonable endeavours to make Introductions of Prospective Clients pursuant to clause 2.5;

2.6.3 report in writing to you from time to time on progress made with Prospective Buyers; and

2.6.4 comply with all reasonable and lawful instructions from you.

2.7 We 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 you in any way, and shall not do any act which might reasonably create the impression that we are so authorised.

2.8 We shall not make or enter into any contracts or commitments or incur any liability for or on behalf of you, including for the provision of any services, and shall not negotiate any terms for the provision of any services with the Prospective Buyers on your behalf.

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3. Supply of Services

3.1 We shall from the Contract Commencement Date and for the duration of the Contract provide the Services to you in accordance with the terms of the Contract.

3.2 In providing the Services, We shall:

3.2.1 co-operate with you in all matters relating to the Services, and comply with all your instructions;

3.2.2 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services.

3.3 We will only provide UHS Property Information to you when you have received written authorisation from the Seller to receive such information.

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4. Your Responsibilities

4.1 You shall:

4.1.1 co-operate with us in all matters relating to the Services;

4.1.2 provide to us in a timely manner all documents and information, relating to the Property (whether owned by the Seller or a third party) required under a Contract or otherwise reasonably required by us in connection with the Services and ensure that they are accurate and complete in all material respects; and

4.1.3 comply with any additional responsibilities of the Estate Agent as set out in the Contract.

4.2 You warrant that any information you provide to us under clause 4.1.2 regarding the Property is complete and accurate and you have taken steps to carry out your own due diligence to ascertain the accuracy of any such information.

4.3 You warrant that you are contracting as a principal for the purposes of these terms and conditions and you are not contracting as an agent on behalf of the Seller.

4.4 You agree that you will not act on the Seller’s instructions in carrying out your obligations under these terms and conditions, except where set out otherwise in these terms and conditions.

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5. Charges

5.1 The Charges for the Services shall be agreed in writing in advance and shall be the full and exclusive remuneration of us in respect of the performance of the Services.

5.2 All Charges payable pursuant to clause 4.1 shall be due to us (whether invoiced or not) within 30 days after the service delivery date or sale completion date whichever is earlier.

5.3 We shall invoice you on completion of the Services. Each invoice shall include such supporting information required by you to verify the accuracy of the invoice.

5.4 If you fail to make a payment due to us under these terms and conditions by the due date, then you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.4 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

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6. Data protection

6.1 Definitions:

Agreed Purposes the performance of the parties obligations under these terms and conditions.
Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures as set out in the Data Protection Legislation in force at the time.
Data Protection Legislation all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Permitted Recipients The parties to these terms and conditions, the employees of each party, any third parties engaged to perform obligations in connection with these terms and conditions.
Shared Personal Data the personal data to be shared between the parties under these terms and conditions. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: The name, and contact details of Prospective Buyers if they have given their consent otherwise it will be a name and our enquiry number in order to identify the Prospective Buyer.

6.2 The provisions which follow set out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party shall:

6.2.1 ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;

6.2.2 give full information to any data subject whose personal data may be processed under these terms and conditions of the nature such processing. This includes giving notice that, on the termination of these terms and conditions, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;

6.2.3 process the Shared Personal Data only for the Agreed Purposes;

6.2.4 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

6.2.5 ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by these terms and conditions; and

6.2.6 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

6.3 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 days of written notice from the other party, give grounds to the other party to terminate these terms and conditions with immediate effect.

6.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

6.4.1 consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

6.4.2 promptly inform the other party about the receipt of any data subject access request;

6.4.3 provide the other party with reasonable assistance in complying with any data subject access request;

6.4.4 not disclose or release any Shared Personal Data in response to a data subject access request without first consulting with and obtaining the consent of the other party.

6.4.5 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

6.4.6 notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

6.4.7 at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of these terms and conditions unless required by law to store the personal data;

6.4.8 use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;

6.4.9 maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and allow for audits by the other party or the other party's designated auditor; and

6.4.10 provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.

6.5 Each party shall indemnify the other against all claims and proceedings and all liability, loss, costs and expenses incurred by the other as a result of any claim made or brought by a data subject or other legal person in respect of any loss, damage or distress caused to them as a result of any breach by the other party of the Data Protection Legislation by that party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of the indemnifying party under this clause shall be subject to the limits set out in clause 8.

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7. Intellectual property rights

7.1 You:

7.1.1 warrant that the receipt and use in the performance of these terms and conditions by us, our agents, subcontractors or consultants of any documents or information provided by you which are used directly or indirectly in the supply of the Services shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

7.1.2 shall indemnify us against all losses, expenses and damages suffered or incurred or paid by us arising out of or in connection with any claim brought against us, our agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of the Contract of any information provided by you.

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8. Limitation of Liability

8.1 Nothing in these terms and conditions limit any liability which cannot legally be limited, including but not limited to liability for:

8.1.1 death or personal injury caused by negligence; and

8.1.2 fraud or fraudulent misrepresentation.

8.2 Subject to clause 8.1, our total liability to you under these terms and conditions shall not exceed £2,000,000. Our total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these terms and conditions.

9. Insurance

During the term of these terms and conditions, we shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with these terms and conditions and shall, on your request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

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10. Termination

10.1 Without limiting or affecting any other right or remedy available to it, either party may terminate these terms and conditions with immediate effect by giving written notice to the other party if:

10.1.1 the other party commits a material breach of any terms of these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;

10.1.2 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

10.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

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11. Consequences of termination

11.1 On termination or expiry of these terms and conditions:

11.1.1 all existing Contracts shall terminate automatically;

11.1.2 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt; and

11.1.3 you shall return or delete UHS Property Information at our discretion.

11.2 Termination or expiry of these terms and conditions shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these terms and conditions which existed at or before the date of termination or expiry.

11.3 Any provision of these terms and conditions that expressly or by implication is intended to come into or continue in force on or after termination of these terms and conditions shall remain in full force and effect.

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12. Force majeure

Neither party shall be in breach of these terms and conditions nor liable for delay in performing, or failure to perform, any of its obligations under these terms and conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for [three months], the party not affected may terminate these terms and conditions by giving 14 days' written notice to the affected party.

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13. Assignment and other dealings

13.1 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under these terms and conditions.

13.2 You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these terms and conditions without the prior written consent from us.

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14. Confidentiality

14.1 Each party undertakes that it shall not at any time during these terms and conditions, and for a period of five years after termination of these terms and conditions, disclose to any person any confidential information concerning the business, affairs, clients of the other party, except as permitted by clause 14.2.

14.2 Each party may disclose the other party's confidential information:

14.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under these terms and conditions. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 14; and

14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under these terms and conditions.

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15. Entire agreement

These terms and conditions together with the relevant Contract 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.

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16. Variation

Except as set out in these terms and conditions, no variation of these terms and conditions, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.

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17. Waiver

A waiver of any right or remedy under these terms and conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 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.

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18. Severance

If any provision or part-provision of these terms and conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision 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 Contract.

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19. Notices

19.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at our registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or by email, in our case to enquiries@uniquehomestays.com.

19.2 A 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 9.00am on the second Business Day after posting; if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 19.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

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20. Third party rights

20.1 Unless it expressly states otherwise, these terms and conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions.

20.2 The rights of the parties to rescind or vary these terms and conditions are not subject to the consent of any other person.

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21. Governing law

These terms and conditions, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

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22. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions or their subject matter or formation.

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