TRADER
TERMS AND CONDITIONS
BACKGROUND:
This agreement applies as between you a Trader and NOVOVILLE LIMITED a company incorporated in England (Registered Number 10313940) and having its registered office at 46 Aldgate High Street, Suite 20, London, England, EC3N 1AL trading as [Novoville Shared Repairs]. Your agreement to comply with and be bound by these Terms and Conditions is deemed to occur upon your accessing of the details of a Report submitted to your email address by the Application.
You warrant that you are at least 18 years and that you have authority to enter into this Contract.
1. Definitions and Interpretation
In this Agreement the following terms shall have the following meanings:
“Application” means this Shared Repairs app which you are using owned by Novoville;
“Common Part(s)” means a part or parts of a building that is used in common by the proprietors of that building such as (by way of example only the roof, foundations, external and load bearing walls, stair wells and stairs, cupula, guttering and downpipes, drainage and sewerage systems, mains water and gas supplies, entrance halls and vestibules, garden ground, entry plats and stairs and all other such common items as more particularly defined in the Tenement Management Scheme as defined in the Tenements (Scotland) Act 2004;
“Confidential Information” means any information that is proprietary or confidential which either Party directly or indirectly discloses, or makes available, to the other, including but not limited to, the existence and terms of this Agreement, all confidential or proprietary information relating to the business, affairs, operations, processes, product information, know-how, technical information, designs, trade secrets or software and/or Intellectual Property of the Party disclosing such information;
“Contract” means the contract constituted by these terms and conditions and your acceptance of these terms by submitting a Quote to Proprietors via this email and the Application;
“GDPR” means Regulation (EU) 2016/679 and as it subsequently forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and known as the UK GDPR;
“Fees” means the charges made for providing the Services as advertised by Us from time to and payable by the Proprietors;
“Improvement” means work that goes beyond merely keeping any Common Part in efficient operating repair and condition and instead enhances its value, or introduces an adaptation, enlarges, expands or extends same or introduces an enhancement to the Common Parts or any part thereof;
“Intellectual Property” means patents, trademarks, trade name, service mark, copyright, trade secrets, know-how, process, technology, development tool, ideas, concepts, design right, domain names, moral right, database right, methodology, algorithm and invention, and any other proprietary information (whether registered, unregistered, pending or applied for);
“Modulr” means Modulr Finance Limited, a company registered in England and Wales under company number 09897957, whose registered office is at 1 Hammersmith Broadway, London, W6 9DL;
“Novoville” means the said Novoville Limited;
“Operating Account” means a bank or e money account in the name of the Lead Proprietor with Modulr or such other banking or e money provider as Novoville nominates from time to time;
“Party” means either you or Novoville as the case may be and “Parties” shall mean both you and Novoville;
“Platform” means the hardware and software environment in which the Services operate, which comprises one or more server computers (whether virtual or not), mirroring/duplicating/back-up and storage systems and relative hardware operating software, virtual machine software (where relevant), operating system software, database software, anti-virus and security software, switches, power supplies and telecommunications infrastructure;
“Proprietor” means the owner of a Unit;
“Premises” means our place(s) of business located at 46 Aldgate High Street, Suite 20, London, England, EC3N 1AL;
“Privacy Legislation” means the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) the Data Protection Act 2018, any legislation which succeeds that Act, the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (the “UK GDPR”), as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner (as amended, incorporated into United Kingdom Law or replaced from time to time);
“Quote” means a written schedule of works and a written quotation or estimate for a Repair or Improvement submitted via an email or in some other form of writing and/or the Application or otherwise to a Proprietor or Proprietors;
“Repair” means works to effect redecoration or repair or maintenance to a Common Part including provision of equivalent replacements with incidental improvements only;
“Report” means a description of a Repair or Improvement created by the Application and sent to you via the email address which you submitted to Us when you signed up to use the Application;
“Service(s)” means collectively any online facilities, tools, services or information including Systems, that Novoville makes available through the Application and the Platform either now or in the future;
“System” means any online communications infrastructure that Novoville makes available through the Application and/or the Platform either now or in the future and whether administered by Novoville or by a third party. This includes, the Services and also, but is not limited to, web-based email, message boards, live chat facilities and email links;
“Trader” means “you” a tradesperson or company such as a firm of plumbers, electricians or builders;
“Unit” means a flat or apartment or other part of a Building designed to be under separate ownership from the other parts of the Building;
“We/Us/Our” means Novoville;
2. Quote and Fees
2.1 You have been invited to submit a Quote for a Repair and/or an Improvement by a Proprietor or Proprietors.
2.2 Your accessing of a Report and submission of a Quote through the Application or otherwise entitles Us to Fees which are added in addition to the Trader’s fees for the Repair and/or Improvement work.
2.3 Fees will be automatically added to your Quote at the appropriate rate in the Application.
2.4 Fees will be collected by Us from the relevant Proprietors from the Operating Account;
2.5 If the relevant Proprietors do not have an Operating Account, we will collect the fees directly from you. You will pay the Fees within 14 days of demand and interest will accrue on Fees from the due date of payment until paid at the rate of five (5) per cent per annum above the base rate from time to time in force of the Bank of Scotland.
2.6 We reserve the right to change Fees from time to time.
3. Trader Obligations
3.1 You agree to trade fairly and within the spirit of the law and good business practice.
3.2 You undertake to:
3.2.1 ensure that all of your employees and any subcontractors are made aware of the terms of this Contract and agree to act in accordance with the terms of this Contract;
3.2.2 deal with complaints promptly and effectively according to your dispute resolution process;
3.2.3 provide Proprietors, where appropriate, with a written Quote before any work commences. Any change made to this schedule shall be communicated to the Proprietors via the Application before any further work is carried out. Any call out charges must be notified in advance to the Proprietors.
3.2.4 give Proprietors an invoice or receipt showing full details of work carried out, itemising where parts have been supplied, materials used, and labour and other costs.
3.2.5 Only charge a fair and reasonable price for work carried out. Include VAT where applicable in all prices including advertised prices, and where surcharges apply, comply with The Consumer Rights (Payment Surcharges) Regulations 2012 (Law that prevents businesses charging more for payment by cheque or cash other than the direct cost of using that method). Please note you may not make a charge for payment by credit or debit card or any other electronic payment;
3.2.6 comply with all relevant consumer protection legislation.
3.2.7 have and maintain adequate public liability insurance.
3.2.8 have and maintain adequate employers’ liability insurance, where required.
3.2.9 co-operate fully with Trading Standards during the course of your activities and make business records available to Trading Standards for inspection.
3.3 Where you are a member of a trade association, which has its own code of practice, the terms of that code and any Alternative Dispute Resolution (“ADR”) processes shall be followed at all times that you are a member of such an association.
3.4 Any contract you have with Proprietor(s) will be between you and that/those Proprietor(s). We shall have no liability whatsoever to you with regard to any contract between you and a Proprietor. It is your responsibility to comply with the terms of each contract. Failure to comply with a Proprietor contract may have financial and other consequences for you. By using the Scheme, this does not mean that we make any recommendation or endorsement of any particular Proprietor or their ability to pay you.
3.5 Where you subcontract all or part of any work, then you must make the subcontractor aware of obligations under these terms and conditions, and must guarantee the work of the subcontractor to the same standard as your business. You must take full responsibility for subcontractors’ work. Where a substantial proportion of the work is to be subcontracted the Proprietor should be informed.
3.6 You will indemnify Us against all claims, actions, losses, damages and actions incurred due to your breach of these Terms and Conditions.
3.7 Novoville shall not be liable in any way for the performance of the contract between a Trader and a Proprietor.
3.8 You hereby indemnity Novoville against any claim made by any Proprietor against Novoville for your actions or for breach of a contract between you and a Proprietor.
3.9 You will not yourself out to be an agent of or represent Novoville.
3.10 If there is a conflict between a Traders terms of business and these Terms and Conditions these Terms and Conditions shall have precedence.
3.11 You shall not act in any way so as to or attempt to avoid or circumvent the Contract, including without prejudice to the foregoing, the payment of Fees to Novoville.
4. Disputes
4.1 Any dispute between you and a Proprietor will be determined in accordance with Clause 4.2. We shall not be involved in any such dispute;
4.2 Dispute resolution process:
4.2.1 You should try to resolve the complaint directly with the Proprietor(s) in the first instance.
4.2.2 You should send the Proprietor(s) a copy of your complaints procedure.
4.2.3 In any dispute which cannot be resolved by informal means you will send a final deadlock letter, setting out your position and any final offer. At this point, the Proprietor(s) may accept the final offer or take the case to the ADR entity, details of which will be in the letter, or take action through the civil courts.
4.2.4 Trading Standards will review any cases that are referred to ADR to ensure suitability, that the complaints process has been followed correctly and confirm informal mediation has been exhausted.
4.2.5 Disputes which are referred to the ADR entity will be dealt with according to their procedures.
5. Privacy
5.1 Our Privacy Policy can be viewed here: https://novoville.com/sharedrepairs_privacy
5.2 You must comply with the terms of the Privacy Legislation at all times. Without prejudice to the foregoing, You hereby warrant, represent, and undertake that any Personal Data shall comply with the Privacy Legislation in all respects including, but not limited to, its collection, holding, and processing.
6. Acceptable Usage
When using any System on the Website you should do so in accordance with the following rules:
6.1 You must not use obscene or vulgar language;
6.2 You must not submit content that is unlawful or otherwise objectionable. This includes, but is not limited to, content that is abusive, threatening, harassing, defamatory, ageist, sexist or racist;
6.3 You must not submit content that is intended to promote or incite violence;
6.4 You must not submit content which contains any material that is unlawful or otherwise objectionable (including that which may be in breach of rules, regulations or legislation in force in the United Kingdom or any other jurisdiction in which your content can be lawfully accessed;
6.5 It is advised that submissions are made using the English language(s) as we may be unable to respond to enquiries submitted in any other languages;
6.6 The means by which you identify yourself must not violate these Terms and Conditions or any applicable laws;
6.7 You must not use our System for any political comment, campaigning, lobbying or other political or party-political use.
6.8 You must not impersonate other people, particularly employees and representatives of ours or our affiliates; and
6.9 You must not use our System for unauthorised mass-communication such as “spam” or “junk mail”.
6.10 You acknowledge that We reserve the right to monitor any and all communications made to us or using our System.
6.11 You acknowledge that We may retain copies of any and all communications made to us or using our System.
6.12 You acknowledge that any information you send to us through our System may be modified by us in any way and you hereby waive your moral right to be identified as the author of such information. Any restrictions you may wish to place upon our use of such information must be communicated to us in advance and we reserve the right to reject such terms and associated information.
6.13 You agree that you will be liable to Us and will, to the fullest extent permissible by law, indemnify Us for any breach of the undertakings given by you under this Clause 6. You will be responsible for any loss or damage suffered by Us as a result of such breach.
7. Changes to Our Terms and Conditions
We may change these Terms and Conditions from time to time (for example, if the law changes). Any changes will be immediately posted on Our Website and you will be deemed to have accepted the new Terms and Conditions on your submission of a Quote.
8. Legal Rights and Disclaimers
8.1 We make no warranty or representation that the Application or the Service will be compatible with all systems, or that it will be secure.
8.2 Save for the discretionary screening and approval of User Sites as detailed in Clause 6, We have neither control over, nor involvement in, any content and accept no responsibility for any actions taken, or any goods or services provided, by any Traders.
8.3 Whilst reasonable endeavours have been made to ensure that all information provided on the Application will be accurate and up to date, We make no warranty or representation that this is the case. We make no guarantee of any specific results from the use of our Services.
8.4 No part of the Application is intended to constitute advice and the content of this Application should not be relied upon when making any decisions or taking any action of any kind.
8.5 We make no representation or warranty that any part of this Application is suitable for use in commercial situations or that it constitutes accurate data and / or advice on which business decisions can be based.
8.6 Whilst We exercise all reasonable skill and care to ensure that the Application is secure and free of errors, viruses and other malware, you are strongly advised to take responsibility for your own internet security, that of your personal details and your computers.
9. Availability of the Application and Modifications
9.1 We accept no liability for any disruption or non-availability of the Application or the Services resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and state-mandated censorship.
9.2 We reserve the right to alter, suspend or discontinue any part (or the whole of) the Application including, but not limited to, the Content available. Where anything you have paid for is made unavailable and you are entitled to a refund as a result, We will inform you of the refund due and it will be paid within 14 days using the same method originally used by you. These Terms and Conditions shall continue to apply to any modified version of the Application unless it is expressly stated otherwise.
10. Limitation of Liability
10.1 To the fullest extent permissible by law, We accept no liability to any Trader for any loss or damage, whether foreseeable or otherwise, in contract, delict (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) the Application or the use of or reliance upon any content included on the Application including the Service and the content.
10.2 To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to the Application and or the Services or any content included on it.
10.3 We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
10.4 We exercise all reasonable skill and care to ensure that the Application is free from viruses and other malware. We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of the Application (including the downloading of any content from it) or any other site referred to on the Application.
10.5 We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of the Application resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, Platform failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
10.6 Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law.
11. No Waiver
In the event that any party to these Terms and Conditions fails to exercise any right or remedy contained herein, this shall not be construed as a waiver of that right or remedy.
12. Previous Terms and Conditions
In the event of any conflict between these Terms and Conditions and any prior versions thereof, the provisions of these Terms and Conditions shall prevail unless it is expressly stated otherwise.
13. Third Party Rights
Nothing in these Terms and Conditions shall confer any rights upon any third party. The agreement created by these Terms and Conditions is between you and Novoville.
14. Communications
14.1 All notices / communications shall be given to Us either by post to Our premises at the address given above or by email to info@novoville.com. Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday.
14.2 We may from time to time, if you opt to receive it, send you information about Our products and/or services.
15. Confidentiality
15.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving Party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
15.2 Subject to clauses 15.4, each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party (other than to a consultant or a Sub-contractor for the purposes of this Agreement and which consultant or Sub-contractor shall have entered into undertakings of confidentiality in relation to the Confidential Information on terms no less onerous than those contained in this Clause 15), or use the other’s Confidential Information for any purpose other than to carry out its obligations under this Agreement.
15.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
15.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of a competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 15.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
15.5 No Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
15.6 This clause 15 shall survive termination of this Agreement howsoever arising.
16. Law and Jurisdiction
16.1 These Terms and Conditions, and the relationship between you and Us (whether contractual or otherwise) shall be governed by and construed in accordance with Scots law.
16.2 Any disputes concerning these Terms and Conditions, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the Scottish courts.