MONKEY vs OWL
Terms and Conditions
MONKEYS VS OWL LIMITED
LANDLORD TERMS AND CONDITIONS
1. About us
1.1 Company details. Monkey vs Owl Limited (company 10533789) (“we” and “us”) is a company registered in England and Wales and our registered office is at 12 Darley Abbey Mills, Darley Abbey, Derby, England, DE22 1DZ. Our main trading address is 99a Ashbourne Road, Derby, DE22 3FW. Our VAT number is 359427466. We operate the website http://www.monkeyvsowl.com (our “Site”).
1.2 Contacting us. To contact us, email our customer service team at firstname.lastname@example.org or use our Contact Us form. Clause 17.2 sets out how you should give formal notice of any matter under the Contract.
2. Our contract with you
2.1 Our contract. These terms and conditions (“Terms”) apply to the order by you and supply of Services by us to you (“Contract”). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law (and are excludable), trade custom, practice or course of dealing.
2.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 Your copy. You should print off a copy of these Terms or save them to your computer for future reference.
3. Placing an order and its acceptance
3.1 Placing your order. Please follow the onscreen prompts to place your order. You may only submit an order using the method set out on the Site. Each order is an offer by you to purchase the online property listing and advertising services in each case further described on our Site and as specified in the order (“Services”) subject to these Terms. References to “the Services” in these Terms apply equally to the Additional Services (as set out in Clause 4.7).
3.2 Acknowledging receipt of your order. After you place your order for Additional Services, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in Clause 3.3.
3.3 Accepting your order. Our acceptance of your order takes place when we send an email to you to accept it (“Order Confirmation”), at which point and on which date (“Commencement Date”) the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.
3.4 If we cannot accept your order. If we are unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Services, we will refund you the full amount.
3.5 Even if we have sent you an Order Confirmation we have the right to terminate these Terms pursuant to Clause 15.4(a) where there are reasonable grounds to believe that:
(a) you are likely to breach any of these Terms; and/or
(b) you have behaved in a vexatious, abusive, or unlawful manner to any of us or our staff or contractors.
4. Our services
4.1 Compliance with specification. Subject to our right to amend the specification (see Clause 4.3) we will supply the Services to you in accordance with the specification for the Services appearing on our Site at the date of your order in all material respects.
4.2 Excluded services. As we are not an estate agency, the Services do not require us to provide you with estate agency services including but not limited to advice on the wording of property listings or advice on the valuation of listed properties. We do not provide Additional Services unless these have been purchased separately and in addition to the Services. We provide no warranty as to the authenticity or creditworthiness of prospective tenants using the Site, nor their ability to meet any obligation of any agreement that you may enter into, and accept no liability in respect of any breach of such agreements by any tenants.
4.3 Changes to specification. We reserve the right to amend the specification of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services as determined by us.
4.4 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
4.5 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
4.6 No warranty. We do not warrant that the Services will meet your requirements or that your receipt of the Services will be uninterrupted or error-free. We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you hereby acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.7 Additional Services. In these Terms “Additional Services” means the following services or any of them, as more particularly described in the relevant hyperlinks:
(g) the property boost service; and
4.8 Authority to subcontract. To provide you with Additional Services you hereby authorise us to use any subcontractors that we deem appropriate.
4.9 Property Management Services. Property management services are dealt with in the Property Management Agreement and are not covered within these Terms.
4.10 The verification service. Nothing in these Terms require us to approve any application for verification and you acknowledge that in the event that your identity cannot be verified, no Charges paid by you will be repaid. By paying us the Charges for the verification service you hereby give your consent for us or our subcontractors to carry out credit or identity checks on you.
5. Your obligations
5.1 By listing a property on our Site, you warrant that:
(a) you have the right to offer the property for rental and are fully entitled to enter into and perform the Contract; and
(b) you either own, or have obtained and paid for licences to use, all materials and information uploaded by you.
5.2 It is your sole responsibility to ensure that:
(a) the terms of your order are complete and accurate;
(b) you co-operate with us in all matters relating to the Services;
(c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(d) you obtain before the date on which the Services are to start and maintain all necessary licenses and consents required for your business and comply with all relevant legislation in relation to your business.
5.3 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in Clauses 5.1 or 5.2 (“Your Default”):
(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under Clause 15 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
5.4 You shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on your part contained in the Contract.
6. Advertising content
6.1 Multiple adverts. You must not create multiple adverts for the same property.
6.2 Uploading images. If you upload images to our Site, such images must comply with the guidelines set out in Appendix 1.
7. Services in UK only
7.1 We are unable to perform the Services at addresses outside the UK.
7.2 You may place an order for the Services from an address outside the UK, but the order must be for performance of the Services to an address in the UK.
8.1 In consideration of us providing the Services you must pay our charges (“Charges”) in accordance with this Clause 8.
8.2 The Charges are the prices quoted on our Site at the time you submit your order.
8.3 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
8.4 We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the Site. However, please see Clause 8.7 for what happens if we discover an error in the price of the Services you ordered.
8.5 Our Charges may change from time to time, and the change will take effect from the month following the date we notify you of the price change. Once you receive our notification, you may either accept the change or terminate the Contract, in which case the Contract will terminate at the end of the period that you have paid for.
8.6 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you will be charged such additional amounts in respect of VAT at the applicable rate, at the same time as you pay the Charges.
8.7 It is always possible that, despite our reasonable efforts, some of the Services on our Site may be incorrectly priced. If the correct price for the Services is higher than the price stated on our Site, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Services and refund you any sums you have paid.
9. How to pay
9.1 Payment for the Services. In respect of Services, we will take your first payment 4 weeks after our Order Confirmation and will take subsequent payments in arrears every 4 weeks thereafter [by direct debit] until the Contract is terminated in accordance with Clause 15. The charges are on a property by property basis so if you list additional properties, we will take your payment 4 weeks after the relevant Order Confirmation and subsequent payments in arrears every 4 weeks thereafter [by direct debit] until the Contract is terminated in accordance with Clause 15.
9.2 Payment method. You can pay for the Services via our chosen payment service provider (currently Stripe), using a debit card or credit card.
9.3 Payment for Additional Services. Charges for Additional Services will be invoiced separately and in addition to the Services.
(a) Tenant referencing services. We will send you an invoice before the referencing services take place. You will settle the invoice in full before the referencing services takes place. Payment will be made by credit/debit card or BACS.
(b) EPC certification services. We will send you an invoice before the EPC certification services take place. You will settle the invoice in full before the EPC certification services takes place. Payment will be made by credit/debit card or BACS.
(c) Gas certification services. We will send you an invoice before the gas certification services take place. You will settle the invoice in full before the gas certification services take place. Payment will be made by credit/debit card or BACS.
(d) Property photography services. We will send you an invoice before the property photography services take place. You will settle the invoice in full before the property photography services take place. Payment will be made by credit/debit card or BACS.
(e) Tenancy contracts service. We will send you an invoice before the tenancy contracts services take place. You will settle the invoice in full before the tenancy contracts service take place. Payment will be made by credit/debit card or BACS.
(f) Cleaning and gardening services. We will send you an invoice before the house is cleaned or the garden serviced. You will settle the invoice in full before the house is cleaned or the garden serviced. Payment will be made by credit/debit card or BACS.
(g) Property boost service. Billing to take place online via a STRIPE shopping cart plugin before the property boost service is provided. Payment will be made by credit/debit card.
(h) Verification service. Billing to take place online via a STRIPE shopping cart plugin before the verification service is provided. Payment will be made by credit/debit card.
9.4 Right to charge interest. If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under Clause 15 (Termination), you will have to 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 9.4 will accrue each day at 4% per annum 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%.
9.5 No set-off. All amounts due from you under the Contract must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.6 Where to find invoices. Invoices are available in the “MyAccounts” section of the “Landlord’s Dashboard.”
10. Intellectual property rights
10.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) will be owned by us.
10.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Services for business purposes. You may not sub-license, assign or otherwise transfer the rights granted in this Clause 10.2.
10.3 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
10.4 You warrant that our receipt and use of any materials provided by you to us shall not infringe the rights, including any intellectual property rights, of any third party.
10.5 You shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred 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 materials provided by you to us.
11. Data Protection
11.1 In this Clause 11:
(c) “UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (EU) 2016/679) (“GDPR”), the Data Protection Act 2018, the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
(d) “Controller”, “personal data breach”, “processing” and “appropriate technical and organisational measures” means as set out in the UK Data Protection Legislation in force at the time.
11.2 We and you shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, including the following:
(a) to ensure that all necessary notices and consents are in place to enable lawful transfer of the Shared Personal Data to each other for the Purpose;
(b) to process the Shared Personal Data only for the Purpose;
(c) not to disclose or allow access to the Shared Personal Data to anyone other than those employees, subcontractors and advisers who need to know about the Shared Personal Data for the Purpose;
(d) to ensure that appropriate technical and organisational measures are in place, to protect against unauthorised or unlawful processing of any of the Shared Personal Data and against accidental loss or destruction of, or damage to, any of the Shared Personal Data;
(e) not to transfer any of the Shared Personal Data received from the Discloser outside the EEA unless the transferor:
(i) complies with the provisions of Article 26 of the GDPR (in the event that the third party is a joint controller); and
(ii) ensures that
(A) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or
(B) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or
(C) binding corporate rules are in place; or
(D) one of the derogations for specific situations in Article 49 of the GDPR applies to the transfer.
11.3 We and you shall assist each other in complying with all applicable requirements of the UK Data Protection Legislation in relation to the Shared Personal Data. In particular, we and you shall:
(a) assist each other, at the cost of the party being assisted, in ensuring compliance with the UK Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
(b) notify each other without undue delay on becoming aware of any breach of the UK Data Protection Legislation;
(c) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers; and
(d) maintain complete and accurate records and information to demonstrate its compliance with this Clause 11.3.
12. Warranty and Indemnity
12.1 You warrant that you will comply with:
(a) all of the obligations set out in Clause 5;
(b) any additional obligations set out on the Site; and
(c) all applicable laws including those related to health and safety and those relating to landlord obligations to tenants.
12.2 You warrant that:
(a) you will not misrepresent the qualities of the properties that you list on the Site;
(b) you will ensure that the description that you provide in respect of any properties that you list are complete and accurate; and
(c) any service that you provide to your tenants as a result of the listing will be provided using reasonable skill and care.
12.3 You are responsible for and will indemnify us in full for any breach of any warranty set out in this Clause 12 if such a breach leads us to suffer any loss or damage.
13. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.2 Subject to Clause 13.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) special, indirect consequential or pure economic loss, costs, damages, charges or expenses;
(b) loss of profits;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information; or
(g) loss of or damage to goodwill.
13.3 Subject to Clause 13.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 6 months’ rent on the relevant property being listed. This applies to any liability that we may suffer as a result of any action or inaction of our subcontractors.
13.4 We have given commitments as to compliance of the Services with the relevant specification in Clause 4.1. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire two months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.7 This Clause 13 will survive termination of the Contract.
14.1 Both we and you undertake not at any time to disclose to any person any confidential information concerning each other's business, affairs, customers, clients or suppliers, except as permitted by Clause 14.2.
14.2 We and you may disclose each other's confidential information:
(a) to such respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of the Contract in which case we and you will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this Clause 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 We and you may only use the other's confidential information for the purpose of fulfilling the Contract.
15. Term and Termination and Delisting
15.1 In respect of Services, the term of the Contract begins on the Commencement Date and will continue until the Contract is terminated in accordance with Clause 15.2, 15.3 or 15.4.
15.2 Without affecting any other right or remedy available to it, we may terminate the Contract by giving you one month’s written notice, in which case the termination date will be at the end of the month on which our notice is served.
15.3 You may terminate the Contract by unlisting all of your listed properties at any time, in which case the termination date will be at the end of the month in which the last property is unlisted. If you terminate under this Clause 15.3 (or delist a property, or properties, but not all of your properties to constitute termination under this Clause 15.3) you will remain liable to us as if you had listed your property for the full amount of time in the final 4 week billing cycle and you will be billed accordingly in accordance with Clause 9. This is the case even if you have terminated or delisted a property or properties (as the case may be) part way through the final 4-week billing cycle. In the event that you terminate in accordance with this Clause 15.3 (or delist one or more of your properties) part way through the 4-week billing cycle, you will not be entitled to a prorated refund or to a reduced, pro-rated bill in the final month for time that your properties were not listed on the Site.
15.4 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit (or we have reasonable grounds to believe that you are likely to commit) a material breach of any Clause of the Contract;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your 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 your assets or ceasing to carry on business;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
15.5 Without prejudice to our rights to terminate the Contract in accordance with Clause 15.2 or Clause 15.4 our obligations in respect of Additional Services shall be deemed complete at the dates set out below:
(a) Tenant referencing services: when you receive
d the tenant reference results.
(b) EPC certification services: when you receive the EPC certificate.
(c) Gas safety certification services: when you receive the gas safety certificate.
(d) Property photography services: when you receive the property photographs.
(e) Tenancy contracts services: when you receive the tenancy contract.
(f) Cleaning and/or gardening services: after the house has been cleaned and/or the garden has been serviced (as relevant).
(g) Property boost service: 7 days from the commencement date plus any applicable, additional remaining days from prior purchases of the property boost service.
(h) Verification service: 12 months from the commencement date.
15.6 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
15.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
16. Events outside our control
16.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control including but not limited to an act of God, flood, drought, earthquake or other natural disaster, an epidemic or pandemic, a terrorist attack, civil war, commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination; collapse of buildings, fire, explosion or accident; interruption or failure of utility service (“Event Outside Our Control”).
16.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
16.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.
17. Communications between us
17.1 When we refer to "in writing" in these Terms, this includes email.
17.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.
17.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 09.00 on the second working day after posting; or
(c) if sent by email, at 09.00 the next working day after transmission.
17.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
17.5 The provisions of this Clause will not apply to the service of any proceedings or other documents in any legal action.
18.1 Assignment and transfer.
(a) We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on our Site if this happens.
(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
18.2 Variation. We may amend the terms of this Contract from time to time by informing you in writing. If we do this, we will notify you and you may then either accept the change (in which case no further action from you is needed) or contact us to terminate the Contract before the change takes effect.
18.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
18.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
18.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
18.6 Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.
Formatting and dimensions
- You can upload images in different formats (png, jpeg, jpg) and sizes but for best quality we recommend an image dimension of 1920px by 1080px.
- Please do not upload images larger than 2 mb.
- We accept the following formats png, jpeg, jpg, no bigger than 1024px by 1024px.
- Please do not upload images larger than 2 mb.