Terms & Conditions

All prices quoted by us are exclusive of VAT at the prevailing rate unless stated otherwise. Please retain a copy of these Conditions for Your own records.

A. DEFINITIONS

  1.  Agent means any person, firm or corporate entity primarily in the business of selling or letting residential or commercial properties or land on behalf of  unrelated third parties.
  2. Conditions means these terms and conditions of Your Subscription.
  3. Us, we, our and BDP mean Barcroft Digital Limited whose registered office is at 14 Barnton Park Drive, Edinburgh EH4 6HQ. Registered in Scotland no.SC366251 or any entity which is from time to time its holding company, a subsidiary or a subsidiary of any such holding company (within the meaning of section 736 of the Companies Act 1985 as amended at the date of this Agreement) or any successor in business to Barcroft Digital Limited.
  4. You and your refers to the person, firm or corporate entity who has applied for subscription of our Estate Agency Management System.
  5. Your Client means any person, firm or corporate entity who has instructed you to market property, land or developments on their behalf.
  6. Our Estate Agency Management System means the BDP software service provided by Barcroft Digital Ltd.
  7. Our Users means users of our Estate Agency Management System.
  8. User Data means information provided by or derived from Our Users and their activities on our Estate Agency Management System.
  9. Your Data means all information and any part thereof provided to Us by You either directly or indirectly, including Data supplied or available by way of a URL link, or information provided or displayed on Your behalf by a third party.
  10. Term means the initial period of Your Subscription set out in our notice to you confirming acceptance of your subscription.
  11. Location(s) means the place(s) that you carry out your normal business activities.
  12. Your Subscription and your Account means access, only for valid Locations, to our Estate Agency Management System appropriate to Your business, and visibility/publication of your Data.
  13. Property Listing Portal means any property listings website or service to which our Estate Agency Management System can supply a data feed.

B. OUR COMMITMENT TO YOU

We:

  1. Will provide an internet-based property listing service that enables you to display Your Data to visitors to your website and may also offer You other relevant additional features and services to help manage Your advertising and promote Your website;
  2. Will, subject to Your Subscription type, use reasonable endeavours to provide access for You to add, amend or remove Your Data 24 hours a day, 7 days a week;
  3. Will use reasonable endeavours to maintain the availability and performance of our Estate Agency Management System;
  4. Will maintain the integrity of Your Data but accept no responsibility for checking the accuracy of Your Data and have no obligation to edit or review Your data, although We reserve the right to edit, review, suppress or remove Your Data if We believe it is inaccurate, inappropriate or in Our opinion contravenes these Conditions or any applicable law in any way. If We have to make changes We will notify You of them within 1 working day;
  5. Will use reasonable endeavours to ensure that Your Data is not altered in such a way as to misrepresent any of the information contained in it;
  6. Will notify You of changes to the specification and/or format in which You must provide Your Data at least 30 days in advance, except where changes are essential to the proper operation of our Estate Agency Management System in which case We will notify You as soon as reasonably practicable;
  7. Will forward all potential customer enquiries, generated from our Estate Agency Management System to the contact details we have for you as soon as reasonably practical. In the event of Our failure to do so, we will notify You within 2 working days of becoming aware of such failure;
  8. Will comply with the Data Protection Act 1998 to the extent that it affects Our business and with any guidance applicable to Our business issued from time to time by the Information Commissioner;
  9. Warrant that, subject to Our privacy policy published on our Estate Agency Management System, no third party (excluding at Our sole discretion Your customers or Your Client’s customers) will, without Your consent be provided with Web traffic or performance data associated directly with Your Data;
  10. Grant You the non-exclusive right to use Our logo, name and our Estate Agency Management System address in any advertising, promotional material and displays in accordance with any instructions that We may issue from time to time and/or display upon our Management System and in a manner that does not bring Us into disrepute or misrepresent Your relationship with Us;
  11. Will, when requested, if you have a subscription to a Property Listing Portal, generate and submit an automated data feed to such Property Listing Portal in a format that complies with the Property Listing Portal’s standard published specification, on a regular schedule and in any event no less than three times in any 24 hour period. Should any of your properties on our system be rejected by any Property Listing Portal for any reason whatsoever we will use our best endeavours to notify you of such an event and the reasons why it/they were rejected insofar as the Property Listing Portal notifies us.

C. YOUR COMMITMENT TO US

You:

  1. Warrant that You or Your Client primarily operate as an Agent, are providing the services normally associated with those operations, and have not or will not, in Our opinion, misrepresent the nature of Your business to Us;
  2. Warrant that unless You are a Landlord, neither You nor Your Client are dealing as a consumer for the purposes of the Unfair Contract Terms Act 1977, Section 12, as amended and that You have not or will not, in Our opinion, misrepresent the nature of Your business to Us;
  3. Warrant that Your Data will only include information on property or land appropriate to Your Membership;
    1. where You or Your Client received the original instruction from a third party at one of Your Locations to sell or let such property or land prior to providing it to Us OR
    2. where You or Your Client have developed or are developing such property or land at one of Your Locations; For the avoidance of doubt Your Data must not include details of property or land if the original instruction was received, is managed or controlled from somewhere other than one of Your Locations or that You are not properly authorised to market or that is not freely available for sale or let;
  4. Warrant that where you provide images to be shown with the property or land you or your client are marketing, such images are only of the property or land being offered, the occupier lifestyle and immediate locale;
  5. Will provide your Data to us in accordance with any specifications and/or in the format that we specify and in such a way as not to interfere with the operation of our Estate Agency Management System, compromise Our Users experience or have a detrimental effect on the quality of our Estate Agency Management System;
  6. Will provide us with a valid working email address and telephone number for each of your Locations and will immediately advise Us of any changes or technical problems that would prevent your Locations receiving emails or calls (If any of your nominated contact methods are not capable of receiving Our messages, we will not be liable for any lost business);
  7. Warrant that you will comply fully with your obligations under the Data Protection Act 1988 with respect to personal data we send or make available to you and will not make available any personal data to third parties without explicit consent;
  8. Will comply and you will procure that your Client complies with all UK legislation and other regulatory and compliance standards that are applicable to a business of the same or a similar nature to yours or your Client’s business within the UK (such as, without limitation, the Estate Agents Act 1979, The Energy Performance of Buildings (Scotland) Regulations 2008, The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 as amended and if you or your Client or both (as appropriate) operate outside the UK, within that jurisdiction as well;
  9. Will act and you will procure that your Client acts in accordance with the best professional practice of a supplier with experience and expertise in carrying on business in the same or similar area of business as yours or your Client’s business, within the UK and if you or your Client or both (as appropriate) operate outside the UK, within that jurisdiction as well;
  10. Will ensure that you and your Data comply with all UK legislation that is applicable (such as, without limitation, the Property Misdescriptions Act 1991, The Housing Act 2004, The Energy Performance of Buildings (Scotland) Regulations 2008, and The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007) that applies to the marketing of property or land as well as the British Code of Advertising, Sales and Promotion and Direct Marketing (11th Edition) as updated or amended from time to time and the Control of Misleading Advertising Regulations 1998 (as amended) and any other regulatory and compliance standards that may from time to time apply in respect of you and your Data, regardless of whether such legislation directly applies to you;
  11. Warrant that you have good title to your Data and that your Data is accurate, relevant and complete; is of a professional and inoffensive nature; is to the best of your knowledge free from known viruses, disabling programs and devices; is not in breach of any obligations of confidentiality or privacy; is not being displayed against the wishes of whom you or your Client acquired it; does not include details of your commission, fees, specific comparisons with third parties who we perceive to be competitors of you or your Client, any links or references to any website or any other information that is specifically excluded by these Conditions or that we deem to be inappropriate to your Subscription;
  12. Warrant that when reproduced or published by us, your Data will not breach any contract; fail to comply with any applicable law or regulation; infringe any copyright, trade mark, intellectual property or any other personal or proprietary right of any person, firm or corporate entity; render us liable to any claim whatsoever; and that you will indemnify us against any resulting third party claim, legal action or penalty should your Data not meet these Conditions;
  13. Will use reasonable endeavours to update your Data to ensure that it is and remains correct including but not limited to any alterations to prices and availability and the display of any data. Where there is a material change or update of Data, You will ensure Your Data is amended accordingly;
    1. Should a property become unavailable due to a change in the properties status You will ensure that the status of the property is changed from ‘Available’ to the correct corresponding property status of either:
      1. SSTC,
      2. SSTCM (Scotland only),
      3. Under offer,
      4. Reserved,
      5. Let agreed
    2. In the event that the property sale has completed or is tenanted you will change the property status to Sold or Let as appropriate. By doing so you agree and understand that that property listing will no longer be included in any third-party data feed and will be removed from such third-party website in accordance with their standard terms and conditions.
  14. Warrant that Your Data will not exceed the permitted time that they may remain in a particular property status, other than ‘Available’in accordance with the standard Terms and Conditions of any third-party portal to which you may subscribe. You hereby indemnify us against your failure to remove a property in a timely fashion in accordance with any such terms.
  15. Will use all reasonable endeavours to help Us identify and remedy unauthorised copying and storage of Your Data;
  16. Will make all payments due to Us pursuant to Our charging structure, as notified from time to time, promptly in accordance with Section E below;
  17. Acknowledge and agree that we may enter into agreements with third parties whereby your Data can be published or accessed through mediums not belonging to Us and/or through channels other than Our Platforms;
  18. Warrant that you will not without our written permission directly or, in our opinion indirectly, sell on or provide access to the services and features of your Subscription to third parties.

D. GENERAL

  1. Subject to clause D3, your Subscription is subject to these Conditions to the exclusion of all other terms and conditions express or implied and any variation to the conditions of your Subscription (other than as described in Condition D2) shall have no effect unless expressly agreed in writing and signed by an authorised senior representative of us.
  2. The current version of our terms and conditions of subscription (as posted on our website) will apply at all times to your Subscription and will supersede all previously published conditions of subscription.
  3. Where you purchase, use or access products or services from us, or from partners supplying such products and services on our behalf, any associated product or service conditions, including those of our partners, shall form part of your terms and conditions of subscription.
  4. You acknowledge that you have not relied upon any statement or representation made by us when applying for subscription of the BDP services unless expressly set out in these Conditions or subject to Condition D1.
  5. If any provision contained in these Conditions is for any reason held to be invalid or unenforceable in any respect that invalidity or unenforceability will not affect any other provision of these Conditions and these Conditions will be construed as if that invalid or unenforceable provision had not been contained herein.
  6. No application for subscription of our Estate Agency Management System placed by you will be deemed to be accepted by us until we confirm your Subscription. We are not obliged to accept any application for subscription by you nor give you reasons for declining or terminating your Subscription.
  7. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any Condition will be deemed to be a waiver of any other right or of any later breach.
  8. We may immediately terminate your Subscription on notice to you if you enter into any form of insolvency including without limit liquidation, bankruptcy, receivership, administration or you are unable to pay your debts as and when they fall due, or anything analogous to the foregoing occurs in any jurisdiction.
  9. We may immediately terminate or suspend without notice your Subscription if we believe you are in breach of any term, condition or warranty in these Conditions.
  10. If at any time we have reason to doubt your ability to comply with any term, condition or warranty in these Conditions, we will give you notice and reserve the right to refuse your application for Subscription; immediately suspend or terminate your Subscription and charge you for our costs and time in doing so.
  11. Conditions D11 - D15 set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to You in respect of any liability of Us arising as a result of or in connection with Your Subscription.
  12. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions.
  13. Nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence or for our fraudulent misrepresentation.
  14. Subject to Condition D11, We will not be liable to You for:
    1. any indirect, consequential, special or punitive loss, damage, costs and expenses;
    2. loss of profit;
    3. loss of business;
    4. loss of reputation;
    5. depletion of goodwill; or
    6. loss of, damage to or corruption of data.
  15. Subject to Condition D11, Our total liability to you under or connected with your Subscription shall not exceed a sum equal to 125% of the fees attributable to the 90 day period of your Subscription prior to the claim arising.
  16. A person, firm or corporate entity who is not a party to the agreement for subscription between you and us has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
  17. We will not be held liable if events outside our control prevent us fulfilling our obligations to you. In particular, if our hosting provider fails to make our Estate Agency Management System available for any reason whatsoever, this is beyond our control and we cannot be held responsible for their failure.
  18. These Conditions and your completed subscription registration contain the whole agreement between you and us relating to your Subscription and supersedes all prior agreements, arrangements and understandings between you and us relating to your Subscription.
  19. We retain the right at any time during the course of your Subscription to vary these Conditions and we will give you 30 days prior notice by email to your Locations of any such variation. You may subsequently terminate your Subscription by giving 30 days’ notice in writing to us if the changes to the Terms and Conditions materially and adversely affect you and your business.
  20. Your Subscription will continue for the Term and, subject to these Conditions, shall continue thereafter unless or until terminated by either you or us giving prior written notice of one calendar month.
  21. Upon termination of your Subscription for any reason, you will pay all sums due to us at the date of such termination. We will not make any partial or full refunds for products or services you have paid for prior to termination, or are due to us from any notice period that applies.
  22. We reserve the right to employ User Data and your Data in our marketing activities, other products and services offered by us or to make it available to selected third parties, subject to the Data Protection Act and the privacy policy on  our website.
  23. These Conditions shall be governed by and construed in accordance with the laws of Scotland and any disputes arising in respect of your Subscription will be submitted to the exclusive jurisdiction of the Scottish Courts. Judgment may be enforced in any court of competent jurisdiction and you and us waive any right to object to the exclusive jurisdiction of the courts of Scotland.
  24. We retain the right to edit, suppress, remove or amend any links or similar to third party sites, documents or associated data if, in our opinion, the operation of such links will adversely affect in any way the performance of our Estate Agency Management System or the user experience of using our Estate Agency Management System.
  25. You agree that you may not assign, subcontract or transfer any of your rights or obligations under this Agreement without our prior written consent. You shall remain liable to us for any breach of this Agreement by your assignees, sub-contractors or transferees.
  26. On registration, activation and use of your Account, you acknowledge valid acceptance of the terms and conditions contained herein.

E. PAYMENT TERMS

  1. For the duration of your subscription and thereafter you will pay our subscription charges for our Estate Agency Management System. Our charges may be varied from time to time subject to us providing 30 days prior notice to you of when the date the change will take effect.
  2. You can make payments to us by the method that you select and those payments will be made in accordance with Conditions E2 - E6 (as applicable).
  3. Unless otherwise specified, invoices will be raised in advance of the subscription period.
  4. If you pay us by credit card or PayPal account, We will charge your nominated credit card in advance of the period to which the payment relates.
  5. If we invoice you, unless you tell us within 5 working days of any mistakes, we will deem the invoice amount agreed and must receive payment as detailed on the invoice.
  6. If we are unable to charge to your credit card, or you have not paid our invoice within the credit terms, then we may charge you interest on your outstanding balance in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time or, where you are acting as a consumer, at a rate of 2% above the prevailing base rate of Barclays Bank plc. per month. In addition, a late payment fee of £25 may be levied. We also reserve the right to immediately remove your Data and your Locations from our Estate Agency Management System and suspend your Subscription. Whilst your Subscription is suspended you will continue to accrue charges at your prevailing rates. Unpaid invoices will be referred to Our Debt Collection Agency and we or they may share your payment history and default with other companies which may subsequently affect your credit record and ability to secure credit.
  7. Should your Subscription cease and subsequently you wish to rejoin, you will be charged at our then prevailing prices.