Avoiding Cowboys
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Trade Business User Agreement
Notice: Please read the following carefully. The Avoiding Cowboy Service is provided on the terms and conditions set out below which should be read in conjunction with the Company’s privacy policy and Payment terms By using the Service a Trade Business agrees to be bound by the Company’s Terms and Conditions and agrees to procure that each of its Subcontractors will be bound by the Company’s Terms and Conditions as if it were a party to them. The Service may not be used by Trade Businesses (for themselves or for their Sub-Contractors) unless the Trade Business agrees to be bound by the Company’s Terms and Conditions.
This user agreement was last modified on Oct 1, 2013
2. Privacy and data protection and exchange of information
6. Trade Business qualifications
8. Intellectual property rights
9. Indemnity
11. Disputes
12. Suspension and termination
13. General
Definitions
“Company” means:
Avoiding Cowboys
“E-mail(s)” means:
Electronic mail received or sent by the Company, created and sent by a member of the Company, or automatically created and sent on behalf of the Company
“Homeowner(s)” means:
Person, persons, companies or other organisations using the Services of the Company in order to post information to Trade Businesses and their Sub-Contractors about the Homeowner’s Project(s)
“Homeowner User Agreement” means:
The user agreement which applies to Homeowners and the Company as the same may be varied from time to time
“Membership Confirmation” means:
The confirmation of a Trade Business’ membership with the Company when that Trade Business registers or amends or renews its membership as a Trade Business with the Company for the Services. The Membership Confirmation may be issued in one of the following formats, including but not limited to: a paper order form, an online order form, electronic form or confirmatory e-mail.
“Payment Terms” means:
The Company’s Payment Terms applicable to payments a Trade Business makes to the Company, as amended from time to time as referred to in clause 13 of this User Agreement
“Privacy Policy” means:
The Company’s Privacy Policy as amended from time to time as referred to in clause 2 of this User Agreement
“Project” means:
Projects and services carried out by Trade Businesses and their Sub-Contractors, for or on behalf of Homeowners
“Service(s)” means:
The services, procedures and information provided and used by the Company for the benefit of Trade Businesses and Homeowners and includes, but is not exclusive to: information, products and services provided by telephone, fax or mail, on the Website and by E-mail and the provision of a dedicated profile page on the Website for a Trade Business, further details of which are contained within the Terms and Conditions and in other parts of the Website
“Sub-Contractor(s)” means:
Contractors, sub-contractors, and sole traders, or any other person or company working (or contemplated by the Trade Business to be likely to work) with or for or on behalf of a Trade Business in connection with a Project
“Suspended” means:
The suspension of the Trade Business’s account with the Company
“System(s)” means:
The software, hardware, batch programmes, and automated processes that are used by the Company in order to provide components of the Service
“Tariff Structure” means:
The tariff of charges applicable to the membership level of a Trade Business with the Company when the Trade Business signs-up for and/or amends and/or renews its membership as a Trade Business with the Company, as set out in the Membership Confirmation issued to the Trade Business
“Term” means:
The duration of the membership of a Trade Business with the Company as detailed in the Membership Confirmation issued to the Trade Business including any introductory period and / or continuation period (as applicable)
“Terms and Conditions” means:
This User Agreement, the Payment Terms, the Tariff Structure and the Privacy Policy
“Third Party” or “Third Parties” means:
Person, persons, company or companies, websites or any other business or enterprise that is being referred to, in the context of the Terms and Conditions, as being other than the Company or a Trade Business or a Sub-Contractor or a Homeowner
“Trade Business(es)” means:
Tradesmen, tradeswomen, trades companies or any other person, persons, company, or companies that use the Services of the Company in order to receive information from the Company which will assist them in securing Projects with Homeowners and potential Homeowners
“Trade Business Charter” means:
The charter of behaviour and responsibility which Trade Businesses agree to abide by when dealing with Homeowners as published by the Company and as the same may be varied from time to time
“Trade Business Information” means:
Any information relating to the Trade Business and/or its Sub-Contractors which the Trade Business provides to the Company or to other users of the Website as part of the participation and interaction of the Trade Business in and with the Company’s Service including information provided during registration, Project listings, the rating of Trade Businesses and any other communication processes arising as a result of the use of the Services or the Website by the Trade Business
“Website” means:
The web space, pages, and the contents and graphics contained in such space or pages which are under the editorial control of authorised members of the Company
1. General Disclaimer
1. The Company relies on Homeowners to specify and describe their Project requirements. The Company makes no warranty for the accuracy or completeness of any information provided by the Homeowner.
2. The Company makes no guarantee to refer any Projects to a Trade Business or its Sub-Contractors.
3. As the Homeowner retains the right to modify or withdraw its Project in the absence of a contract or other binding agreement with a Trade Business, the Company makes no warranty as to the availability or suitability of a specific Project.
4. The Trade Business is responsible for ensuring that the Trade Business and (to the extent they are to be used in a Project) its Sub-Contractors are legally able to tender for a Project. In addition, the Trade Business is responsible for ensuring that the Trade Business and (to the extent they are to be used in a Project) its Sub-Contractors are legally able to perform the Project specified in the Project description.
5. The Company is not party to any contract made between the Homeowner and the Trade Business and/or its Sub-Contractors in relation to a specific Project and accordingly the Company shall not be liable to the Trade Business or its Sub-Contractors for any occurrence resulting from any dealings between the Trade Business and its Sub-Contractors and the Homeowner including but not limited to any direct, indirect or consequential or inconsequential loss of any kind suffered by the Trade Business and/or its Sub-Contractors howsoever arising.
6. Where a Trade Business advises the Company of a part P or gas certification in relation to itself and/or its Sub-Contractors as part of the Trade Business’ registration process with the Company, the Company may (at its discretion) verify the relevant certification, although the validity of the certificate always remains the responsibility of the Trade Business.
2. Privacy and data protection and exchange of information
1. By accepting this User Agreement, a Trade Business expressly consents to uses and disclosures of the Trade Business Information including, but not limited to, for verification purposes, as set out in the Company’s Privacy Policy, which is incorporated herein by reference.
2. The Company’s Privacy Policy is available here.
3. The Company holds the Trade Business Information on a database and as part of the business System strictly in accordance with its Privacy Policy.
4. As part of the registration process for Trade Businesses a Trade Business is requested to provide the Company with not only various business and trade information but also the full authority from the Trade Business and its applicable Sub-Contractors (which is hereby given by the Trade Business for itself and, as agent for its Subcontractors) to verify any information which the Trade Business provides from time to time.
5. As part of the process of verifying Trade Business Information the Company may carry out, either directly or via carefully selected and appropriately regulated third party data verification agencies, identity verification checks on the Trade Business and its Sub-Contractors to verify the information the Trade Business has provided. This may include cross-referencing the information provided with – by way of example – electoral roll data, passport data, DVLA data, credit file data etc. By submitting Trade Business Information to the Company, the Trade Business consents and gives authority (for itself and as agent for its Subcontractors) for such checks to be carried out.
6. If a Trade Business fails to provide information required by the Company in accordance with the Terms and Conditions, the Company reserves the right to Suspend or terminate the account of the Trade Business in accordance with clause 12 of this User Agreement.
7. The Service enables information about Projects from Homeowners to be published to Trade Businesses. Should the Trade Business express an interest on behalf of itself or its Sub-Contractors in quoting for the Project then personal contact details will be sent to both the Homeowner and the Trade Business concerned. The Trade Business agrees not to pass on such information to any Third Party.
8. The Company will make registered user profile information including ratings and comments from users of the Website in relation to historic Projects available for users of the Website to see at any stage on the Website. By using the Service a Trade Business hereby consents on behalf of itself and (as agent for its Subcontractors) its Sub-Contractors to such ratings and comments on the Trade Business and/or Sub-Contractor being published in this way.
9. If for any reason a Trade Business does not wish any or all of its Trade Business Information to be used in the way set out in the Terms and Conditions then the Trade Business should immediately cease to use the Services of the Company.
10. The Company is willing, on request from a Trade Business, to provide a copy of any data held by the Company on the requesting Trade Business on receipt of proof of identity. For this service the Company reserves the right to charge an amount to cover administrative costs, the level of which shall be communicated to the Trade Business at such time.
11. Trade Businesses may only use (and shall procure that its Subcontractors shall only use) contact information obtained from the Website or any information obtained through a Company communication, for communications relating to specific Project inquiries which have been notified to the Trade Business via the Service or the Website.
12. Trade Businesses agree not to use (and shall procure that its Subcontractors shall only use) any personal contact information of any other Trade Business or Homeowner provided via the Service or the Website for any unsolicited or commercial messages save as expressly authorised by the Terms and Conditions or where expressly authorised by the particular Trade Business or Homeowner following adequate disclosure of the purpose(s). In addition, a Trade Business agrees to only use (and shall procure that its Subcontractors shall only use) such information in accordance with applicable laws and regulations, including without limitation data protection and privacy laws and shall not request information for use in any way which would breach applicable data protection and privacy laws.
13. In addition, under no circumstances, except as defined in this Section, can a Trade Business disclose personally identifiable information about another Trade Business or Homeowner to any Third Party obtained as a result of the Services without the Company’s consent and the consent of such other Trade Business or Homeowner after adequate disclosure, and the Trade Business shall procure that its Subcontractors shall comply with this clause 2.13 as if a party to these Terms and Conditions.
3. Disclaimer of warranties
1. The Website and the Services are provided on an “as is” and “as available” basis and the Company makes no warranties or representations, whether express or implied, in relation to the Website or the Services, including but not limited to, implied warranties or conditions of completeness, accuracy, satisfactory quality and fitness for a particular purpose.
2. The Company makes no warranty that the Website or use of the Services will meet the requirements of a Trade Business or will be uninterrupted, timely, secure or error-free.
3. No warranty is given by the Company as to results that may be obtained or the accuracy of any information obtained through the Website or the Services or that any defects in the Website or the Services will be corrected and Trade Businesses understand and agree that any material or data obtained through use of the Website or the Services is at the discretion and risk of the applicable Trade Business.
4. Trade Business information
1. Trade Businesses are solely responsible for the Trade Business Information provided by the applicable Trade Business and its applicable Sub-Contractors. Trade Businesses agree to provide true, accurate, current and complete information when providing details to the Company. Trade Businesses agree not to impersonate any other business, person or entity or to use a false name or a name that the applicable Trade Business is not authorised to use. The Trade Businesses also agree not to provide misleading information relating to skill sets, qualifications or trade accreditations of the applicable Trade Business and/or its Sub-Contractors.
2. A Trade Businesses shall ensure that Trade Business Information and the activities of that Trade Businesses (and any of its Subcontractors) on the Website are not false, inaccurate or misleading, offensive, menacing, abusive, defamatory, or in breach of copyright, confidence, privacy or any other rights. A Trade Businesses shall ensure that its (or its Subcontractors’) Trade Business Information does not infringe any Third Party’s copyright, patent, trade mark, trade secret or other proprietary rights or rights of publicity or privacy, be fraudulent, be in breach of any applicable laws or regulations (including, but not limited to, consumer protection, unfair competition, anti-discrimination, false advertising), be obscene, indecent or contain pornography.
3. A Trade Businesses shall ensure that its Trade Business Information does not create liability for the Company or cause the Company to lose (in whole or in part) the services of its ISPs or other suppliers. Trade Business Information must not link directly or indirectly to any other website.
4. To enable the Company to use Trade Business Information, Trade Businesses on behalf of themselves and their Sub-Contractors grant to the Company a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) licence to exercise the copyright, trade mark, publicity, and database rights the Trade Business or applicable Sub-Contractor may have in the Trade Business Information, in any media now known or not currently known. Trade Businesses also waive on behalf of themselves and their applicable Sub-Contractors all moral rights each may have in the Trade Business Information to the fullest extent permitted by law.
5. A Trade Businesses shall ensure that its Trade Business Information does not contain any computer viruses, macro viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority or expropriate any System, data or personal information.
6. A Trade Businesses shall ensure that its Trade Business Information does not cause the Website to be interrupted, damaged, rendered less efficient or such that the effectiveness or functionality of the Website is in any way impaired.
7. Trade Businesses hereby acknowledge that the Company, at its absolute discretion, shall be entitled to edit, modify or remove any part or parts of the Trade Business Information which it considers is in breach of any of the provisions of the Terms and Conditions
5. Trade Business obligations
In consideration of the Company making the Website and the Services available to Trade Businesses, Trade Businesses:
1. agree that they will comply and will procure that their Sub-Contractors will comply with the terms of the Trade Business Charter a copy of which is available on request;
2. agree that the performance of Trade Businesses and their Sub-Contractors in carrying out a Project will be rated by the applicable Homeowner and that such ratings will be published on the Website in accordance with the Company’s Terms and Conditions;
3. agree that they may not tender for Projects which are prohibited by Law nor Projects from which the Trade Business (or their relevant Subcontractors to the extent those Subcontractors are to be used) is prohibited by law from carrying out;
4. accept responsibility for any content the Trade Business provides on the Website;
5. agree not to copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Trade Business Information) from the Website without the Company’s prior written permission;
6. Agree not to use the Website or the Services in any other way save as expressly authorised by the Company’s Terms and Conditions. By way of non-exhaustive example Trade Businesses agree not to use the Website or the Services for any illegal purpose or to transmit or post any material which is defamatory, offensive, malicious, misleading or of an obscene or menacing character, or in such a way as to cause annoyance, inconvenience or needless anxiety.
6. Trade Business qualifications
1. The Company believes that its bespoke rating system and the willingness of a Trade Business to be rated provides Homeowners with the best independent feedback on the quality, value and reliability of a Trade Business.
2. As part of its Service to Homeowners the Company strongly advises Homeowners to request sight of evidence of applicable trade accreditations or registrations, CRB checks and solvency checks (as applicable) from a Trade Business and its Sub-Contractor(s) prior to the Trade Business or Sub-Contractor commencing work on a Project. The Trade Business must comply and must procure that its Sub-Contractor complies with any reasonable requests submitted by the Homeowners with regards to the verification of such accreditations, registrations or information.
3. Any checks on trade accreditations or registrations carried out by the Company do not reduce the obligation of the Trade Business to ensure that all its Sub-Contractors and any personnel involved in the Project have the required trade accreditation or registration to carry out specific aspects of the Project where required to do so.
4. The Company accepts no liability for any failure by the Homeowner to carry out appropriate checks in relation to a Trade Business or Sub-Contractor.
7. The Company’s rights
1. The Company reserves the right to modify or discontinue all or part of, temporarily or permanently, the Website or the Service with or without notice to a Trade Business and the Trade Business confirms that the Company shall not be liable to it or its Sub-Contractors or any Third Party for any modification to or discontinuance of the Website or the Service.
2. The Company may change the Terms and Conditions from time to time and shall post such alterations on the Website and shall update the date upon which the Terms and Conditions were last modified at the beginning of the relevant document. If a Trade Business, on behalf of itself and its Sub-Contractors, does not agree to the changes made to the Terms and Conditions the Trade Business must stop using the Website and the Service. The continued use of the Website and the Service by the Trade Business after the date the changes have been posted will constitute acceptance of the amended Terms and Conditions by the Trade Business on behalf of itself and its Sub-Contractors.
3. In the event of the Company’s publication of the Website being restricted, curtailed or prevented by any law or any other act or thing beyond the Company’s control, the Company may at any time, notwithstanding anything contained in this Agreement, forthwith terminate this Agreement in whole or in part.
4. The Company reserves the right to monitor the accounts, ratings and performance of Trade Businesses and Sub-Contractors in completing Projects for the purpose of ensuring that the Company retains only the highest calibre of Trade Businesses for the Company’s Service. The Company reserves the right to remove Trade Businesses from the Company’s Service who do not, or whose Sub-Contractors do not, adhere to the Trade Business Charter or the high standards expected by the Company.
5. The Company also reserves the right to investigate and monitor any negative or, what it reasonably suspects to be, fraudulent ratings and to remove ratings and comments if it considers it appropriate to do so.
8. Intellectual property rights
1. To the extent that all copyright and other intellectual property rights throughout the world in Trade Businesses Information does not vest in the Company by operation of law or the other provisions of this Agreement, Trade Businesses hereby grant to the Company (free of charge) an exclusive, perpetual, royalty-free licence to use such information for any purpose.
2. Trade Businesses hereby acknowledge that all present and future copyright and other intellectual property rights subsisting in, or used in connection with, the Website (the “Rights”), including the manner in which the Website is presented or appears and all information and documentation relating thereto is the property of the Company and nothing contained herein shall be construed so as to transfer any such rights to any Trade Business.
3. Without prejudice to the generality of the foregoing, if and to the extent that a Trade Business or its Sub-Contractor owns any or all of the Rights, the Trade Business hereby irrevocably and unconditionally assigns and agrees to procure that any Sub-Contractor irrevocably and unconditionally assigns the Rights, with full title guarantee, to the Company for the full period of copyright and all renewals extensions and/or revivals thereof and thereafter in perpetuity, throughout the world.
9. Indemnity
Trade Businesses agree to indemnify the Company forthwith on demand and hold the Company harmless against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by the Company in connection with any claims, actual or threatened, of any kind (including without limitation any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or misleading advertising or sales practices) arising from the provision of Trade Business Information by the indemnifying Trade Business or its Sub-Contractors or arising from the use of the Website or the Services by the indemnifying Trade Business or its Sub-Contractors.
10. Limitation of liability
1. Trade Businesses agree that, except for death and personal injury arising from the Company’s negligence, the Company shall not be liable in contract, tort, negligence, statutory duty or otherwise, for any loss or damage whatsoever arising from or in any way connected with this contract, including, without limitation, damage for loss of business, loss of profits, business interruption, loss of business information, loss of data, or any other pecuniary loss (even where the Company has been advised of the possibility of such loss or damage)
2. The Company does not and cannot be involved in the dealings of Trade Businesses or their Sub-Contractors with Homeowners, and in the event that a Trade Business or its Sub-Contractor has a dispute with one or more Homeowners, the Trade Business hereby releases, and shall procure that its Sub-Contractor releases, the Company (and its agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
3. The Company does not represent that the information contained in the Website or in any communication from the Company, including but not limited to telephone conversations, E-mails and letters, is accurate, verified, current, comprehensive or complete. They could contain inaccuracies, typographical, human and/or machine errors or omissions. The Company will not be liable in any circumstances for any direct, indirect, consequential or special damages arising from use of the Website or Services of the Company.
4. E-mails or other communications that are automatically generated from information provided by Homeowners and Trade Businesses including information relating to Sub-Contractors are NOT under the editorial control of the Company. These may be automatically sent un-checked and un-edited by the Company and therefore they do not necessarily reflect the opinions and/or beliefs of The Company. Accordingly the Company is not responsible and cannot be held liable for any inaccuracies, the validity, reliability, any falsehoods, misrepresentations, defamatory language or words, libellous statements, fraudulent activities or any other damaging words, sentences or statements contained in the components of E-mails that are not under the editorial control of the Company.
5. Save as expressly set out herein, all conditions, warranties and obligations which may be implied or incorporated into this Agreement by statute, common law, or otherwise and any liabilities arising there from, are hereby expressly excluded to the extent permitted by law.
6. While every reasonable care will be taken in respect of information supplied by Trade Businesses, the Company cannot accept liability for any information placed or omitted to be placed on the Website (whether or not any such liability is occasioned by the Company’s fault or negligence or otherwise).
7. The Company cannot guarantee the day or time that the Company will respond to any E-mail, telephone or written enquiries or Website form submissions.
8. Without limiting the foregoing, the Company shall have no liability for any failure or delay resulting from any matter beyond the Company’s reasonable control.
9. Each of the provisions of this Clause 10 shall be construed separately and independently of the others.
11. Disputes
1. Should Trade Businesses or their Sub-Contractors have a dispute with a Homeowner, they must, in the first instance, address and (if applicable) procure that their Sub-Contractors address such dispute directly to the Homeowner concerned and feedback the results to the Company.
2. The Company may at its sole discretion without being under legal obligation to do so, investigate any grievances held by Trade Businesses or their Sub-Contractors or Homeowners, and may discuss any investigation with all involved parties. However there are only three possible outcomes of a grievance investigation:
1. the Trade Business and/or Homeowner may be allowed to continue using the Services of the Company;
2. the Trade Business and/or Homeowner may be Suspended from using the Services of the Company for a period of time, at the discretion of the Company;
3. the Trade Business and/or Homeowner may be banned indefinitely from using the Services of the Company.
3. Trade Businesses hereby agree to release the Company from any damages or claims (including punitive, consequential and incidental damages) of every kind or nature, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such disputes.
12. Suspension and termination
1. The Company reserves the right to Suspend or discontinue its Service to a Trade Business, with immediate effect, as it sees fit and in circumstances including, but not limited to:
1. where the Company has not received written permission from provisional Trade Businesses (on behalf of themselves and/or their Sub-Contractors) to undertake the necessary checks as part of the Company’s vetting process within the period required by the registration process;
2. Where payments that are due have not been settled within 14 days; or
3. Where the Company suspects that a Trade Business is in material breach of any term hereof or suspects that the Trade Business’s Sub-Contractor would be if it were a party to this Agreement.
2. Either party may terminate this Agreement forthwith by written notice if the other commits any material breach of any term hereof and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same.
3. In the event that Service is suspended in accordance with clause 12.1, the Trade Businesses will not have access to new Project submissions.
14. General
1. Clause headings are inserted for convenience only and shall not effect the construction hereof.
2. If any provisions hereof are held to be illegal or unenforceable such provisions shall be severed and the remainder of this Agreement shall remain in full force and effect unless the business purpose of this Agreement is substantially frustrated thereby.
3. A Trade Business may not assign, transfer or sub-contract (save to a Sub-Contractor) any of its rights hereunder without the prior written consent of the Company. The Company may assign, transfer or sub-contract all or any of its rights at any time without the consent of the Trade Business.
4. Any express or implied waiver by the Company of any term or condition hereof or any breach or default by a Trade Business may be terminated by the Company at any time. No such waiver shall constitute a continuing waiver nor shall it prevent the Company from acting upon that or any subsequent breach or default or from enforcing any term or condition hereof.
5. This Agreement constitutes the entire agreement between the Company and the Trade Business as to the subject matter hereof and supersedes all previous communications, representations and arrangements, either written or oral (other than fraudulent misrepresentation). The Trade Business acknowledges that no reliance is placed on any representation made but not embodied herein.
6. The provisions of Clauses 1, 2, 3, 8, 9, 10, and 14.6 shall survive termination of this Agreement.
7. Any notice to be given under this Agreement may be given via E-mail, regular mail, facsimile or by hand to the address provided on the Website or otherwise as notified by one party to the other.
8. No terms or conditions other than those set forth herein or any variation thereof under Clause 7.2 shall be binding upon the Company, unless in writing and signed on behalf of both the Company and the Trade Business.
9. Nothing herein shall create or be deemed to create any joint venture, principal-agent or partnership relationship between the parties and neither party shall hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other.
10. Notwithstanding any other provision in this Agreement a person who is not a party hereto has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce the terms of this Agreement.
11. This Agreement shall be subject to the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the English courts.