The attention of the Client is particularly drawn to the provisions of clause 5
1. Interpretation and definitions
1.1 When using the services and/or purchasing content from Fourwalls EMEA Limited you agree to be bound by the following terms and conditions, whether instructing us by telephone, email, letter, online or in a face to face meeting.
1.2 In these conditions (“these Conditions”) unless the context requires otherwise:
‘Fourwalls’: Fourwalls EMEA Limited, a company registered in Ireland (company number 643129) whose registered office is at T33 Rowan Avenue, Stillorgan Business Park, Stillorgan, Co Dublin, A94 WA06;
‘the Client’: the person, firm or company accepting a quotation/estimate from Fourwalls for the sale/supply of Content or whose order for Content is accepted by Fourwalls;
‘Content’: the products and services which Fourwalls, whether acting directly or through its subcontractors, is to supply in accordance with these Conditions and which are specified in any Instructions, including but not limited to floor plans, lease plans, any architectural services, brochures, photography, CGIs and Energy Performance Certificates (EPCs);
‘Data Protection Legislation’ means (i) prior to 25th May 2018, the Data Protection Act (1998) as amended, (ii) from and including 25th May 2018 the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in Ireland and then (iii) any successor legislation to the GDPR applicable in Ireland.
‘Instructions’: an order for the supply of Content placed by the Client which is accepted by Fourwalls and includes an order completed in person, via telephone, email, letter or online;
‘Contract’: the Instructions and these Conditions and Processing Agreement taken together.
‘Personal Data’ has the meaning given to it in the Data Protection Legislation.
‘Processing Agreement’ means the processing agreement set out in the Schedule which forms part of these Conditions.
2. Supply of services
2.1 Fourwalls shall supply and the Client shall purchase the Content in accordance with the Instructions, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions. In the event of inconsistency between these Conditions and any special conditions contained in the Instructions, such special conditions shall prevail. No conduct by Fourwalls shall constitute acceptance of any terms put forward by the Client.
2.2 No instructions submitted by the Client shall be deemed to have been accepted by Fourwalls unless and until it has been expressly confirmed by email to the Client specifically indicating acceptance (as opposed to receipt) of the Client’s instructions. On this date the Contract shall come into existence. Cancellations of instructions shall be dealt with in accordance with clause 4.5 below.
2.3 All requests for amendments or changes to a floor plan or any other content must be communicated in writing to and carried out by Fourwalls and not by any third party. Fourwalls does not accept any responsibility or liability where amendments or changes to floor plans or EPCs are made by a third party. Floor plans, photographs, brochures, EPCs and any other service Fourwalls provide shall not be sold or transferred to any third party without prior written permission from Fourwalls.
2.4 Fourwalls warrants to the Client that;
(a) the Content will, at the time of delivery to the Client, correspond with the Instructions and be of satisfactory quality;
(b) it shall provide the Content using all reasonable care and skill and as far as reasonably practicable, in accordance with the Instructions; provided that, in respect of all Content Fourwalls shall not be liable to the Client for any loss, damage, costs, expenses or other claims for compensation arising out of or in connection with any breach by the Client of its obligations under the Contract.
2.5 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
2.6 All copyright, trademarks, design rights and other intellectual property rights of any kind whatsoever whether registered or capable of registration or not in any part of the world and the right to apply for any of the foregoing rights subsisting in relation to or created or developed by Fourwalls or its subcontractors in the course of creating and providing the Content shall remain (as between Fourwalls and the Client) the absolute property of Fourwalls or its subcontractors and no rights in such property are granted to the Client save for a non-exclusive licence for the client to use the Content for the purposes contemplated by the Contract.
2.7 Fourwalls is only responsible for Energy Efficiency recommendations contained within the EPC report and accepts no responsibility or liability for any other Energy Efficiency recommendations discussed between the Client and Energy Assessor.
3. Client’s obligations
3.1 All floor plans are drawn in accordance with the RICS guidelines (where stated on the specific floor plan) but it is the Client’s responsibility to confirm that the plan is a reasonably accurate representation of the property and Fourwalls shall not be responsible in the event that floor plans are not a reasonable representation of the property. Unless otherwise agreed in writing, all floor plans are intended to be used for marketing and layout purposes only and should not be used for valuations or structural alterations. Lease plans and architectural plans are intended for the use they were commissioned for.
3.2 It is the Client’s responsibility to inform Fourwalls, at the time the Client places the order, of the size and scope of the survey which is the subject of the order and to specify any outbuildings and other structures that are to be included.
3.3 When re-ordering copy plans from the Fourwalls archive it is the Client’s responsibility to confirm that the floor plan remains accurate and, if it does not remain accurate, to inform Fourwalls of any alterations to the property.
3.4 Where floor plans are produced from Client sketches (Redraw) or re-drawn from other representations of the property, Fourwalls accepts no responsibility or liability for the accuracy of the floor plans or any areas calculated from them.
3.5 Fourwalls (and its subcontractors) will use reasonable skill and care in shooting, taking, editing and providing photographs in accordance with the Client’s instructions. Notwithstanding this, it remains the Client’s responsibility to ensure that any photographs supplied by Fourwalls meet the Client’s requirements.
3.6 Fourwalls (and its subcontractors) will use reasonable skill and care in producing brochures to the Client’s instructions. In approving, by email, a proof in PDF (or other electronic format) the Client takes full responsibility for the content of the brochure and will be deemed by Fourwalls to have checked and be satisfied with all aspects of the brochure including but not limited to the text, photographs, floor plans (including compass points), layout, logos and corporate colours.
3.7 In respect of all Content provided by Fourwalls it is the Client’s responsibility to obtain, in advance of publication, any necessary clearances in respect of models, third party copyright works, trademarks, designs or other intellectual property except where such clearances have already been obtained by Fourwalls’ subcontractor. The Client agrees to indemnify Fourwalls against any damages, losses, costs, claims or expenses incurred by Fourwalls as a result of any failure by the Client to obtain such clearances.
3.8 Where the Client supplies Fourwalls with an extract from an Ordnance Survey Map or similar for use in Content, it is the Client’s responsibility to ensure it has obtained the appropriate License.
3.9 The Client shall be responsible for providing access to the property at the time agreed in the Instructions and for ensuring that the property is both easily accessible and, in the case of photographs in a suitably presentable condition. Fourwalls shall not be held responsible if the photographs taken are not considered suitable due to the condition of the property or the weather at the time the photographs were taken.
3.10 The Client warrants that it has all necessary authorities and permissions to commission any services Fourwalls supplies in relation to the property in question including allowing representatives of Fourwalls access to the property. The Client agrees to indemnify Fourwalls against all expenses, damages, claims and legal costs where such clearances have not been obtained.
3.11 Where Fourwalls is required to process Personal Data provided to it by the Client in order for Fourwalls to provide the Client with the Content requested accordance with the Instructions, the terms of the Processing Agreement shall apply in respect of that processing.
3.13 The Client shall not be entitled to assign or sub-contract or otherwise dispose of any of its rights or obligations under the Contract without the prior written consent of Fourwalls. In particular, the Client shall not be entitled to transfer or assign any Content to a third party, including to other property agents, without the prior written consent of Fourwalls.
4. Charges and payment
4.1 The prices for the Content shall be the prices stated in Fourwalls’ price list as supplied to the individual Client or as agreed in writing at the time when the Contract is made and are exclusive of VAT. Fourwalls reserves the right to vary its prices from time to time without notice.
4.2 Unless otherwise agreed in writing Fourwalls shall be entitled to invoice the Client by email or post for the price of the Content on submission to the Client of the final job listed in the Instructions. The Client shall pay Fourwalls’ the price of the Content within 30 days of the date of the invoice. All invoices shall include VAT where applicable.
4.3 If the Client fails to make payment of Fourwalls’ invoice on the due date then, without prejudice to any other right or remedy available to Fourwalls, Fourwalls shall be entitled to:
(a) terminate the Contract or suspend any further deliveries of Content to the Client; and/or
(b) charge the Client interest at 8% above the European Central Bank’s reference rate on the amount unpaid from the due date until the date of actual payment, together with the costs of recovering such unpaid amounts through legal action. This is in accordance with S.I. No. 580/2012 – European Communities (Late Payment in Commercial Transactions) Regulations 2012.
4.4 Where necessary, three simple post proof amendments will be made to the draft floor plan, photo, brochure or CGI free of charge. Fourwalls reserves the right to charge the Client for any further amendments. Where the Client supplies photographs additional charges may be levied by Fourwalls should the Client instruct Fourwalls to carry out any digital re-touching.
4.5 It is Fourwalls’ policy to accept cancellations up to 5.00pm on the working day before an appointment without charge unless otherwise stated. Where cancellations are received after 5.00pm on the working day before an appointment Fourwalls shall be entitled to charge the Client a late cancellation charge of up to 50% of the original job charge. In the event that Instructions are cancelled after the Contract has been made and after an appointment and/or further work has been carried out by Fourwalls but prior to delivery of the Content the Client will be responsible for all costs and expenses incurred by Fourwalls up to the point of cancellation which could be the full contract price.
5. Limitation of Liability: the Client’s attention is particularly drawn to this clause
5.1 Nothing in these Conditions shall limit or exclude Fourwalls liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples).
5.2 For other situations outside clause 5.1 (except for data protection liability which shall be dealt with in accordance with clause 6 of the Schedule)
(a) Fourwalls shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any unforeseeable loss arising under or in connection with the Contract; and
(b) Fourwalls total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed (i) any insurance policy which Fourwalls has in place to cover the liability (for example: damage to the client or property) or (ii) the total price payable under the Contract.
5.3 This clause 5 shall survive termination of the Contract.
6. Force Majeure
6.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Fourwalls including but not limited to failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
6.2 Fourwalls shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
7.1 The Contract constitutes the entire agreement and understanding between the parties with respect to its subject matter and the terms of the Contract shall supersede any previous agreements. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on, and shall have no remedy and waives all rights in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to the Contract or not) other than as expressly set out in the Contract as a warranty or a representation.
7.2 Fourwalls may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Client may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Fourwalls.
7.3 When the Client enquires about Fourwalls’ services and/or becomes a client of Fourwalls the Client’s name and contact details may be entered onto Fourwalls’ database and client relationship management system. From time to time Fourwalls and its IT and marketing consultants, may use this information for direct marketing purposes in connection with the business interests of Fourwalls but the Client’s information will never be transferred to other third parties unless prior permission has been obtained. The Client shall have the power to remove its details from the database and client relationship management system at any time by emailing [email protected]
7.4 No variation to the Contract shall be effective unless made in writing and signed by or on behalf of the parties. Fourwalls reserves the right to amend these terms and conditions from time to time and will post the current version on its website at www.fourwalls-group.com.
7.5 A person who is not a party to the Contract shall not have any rights to enforce its terms.
7.6 Fourwalls shall not be liable to the Client or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of Fourwalls’ obligations under the Contract if the delay or failure was due to any circumstances beyond Fourwalls’ reasonable control.
7.7 If any provision of the Contract is declared void or unenforceable by any court or is otherwise rendered so by any applicable law, such provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of the Contract not affected by such invalidity or unenforceability shall remain in full force and effect.
7.8 Any notice given under the Contract must be in writing and sent by pre-paid first class post to the parties’ respective addresses and will be deemed effectively served on the second business day following the day of posting. Fourwalls’ address for notices is Suite 1.14, Building Three, Watchmoor Park, Camberley, GU15 3YL.
7.9 The construction, validity and performance of the Contract shall be governed by the law of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
1.1 The following definitions and rules of interpretation apply in this Schedule.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England.
“Commencement Date” means the date stated at the beginning of this Schedule.
“Data Controller” or “Controller” has the meaning given to it in the Data Protection Legislation.
“Data Processor” or “Processor” has the meaning given to it in the Data Protection Legislation.
“Data Protection Legislation” means (i) prior to 25th May 2018, the Data Protection Act (1998) as amended, (ii) from and including 25th May 2018 the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in Ireland and then (iii) any successor legislation to the GDPR applicable in Ireland.
“Data Subject” has the meaning given to it in the Data Protection Legislation.
“GDPR” means General Data Protection Regulations (EU 2016/679).
“Personal Data” has the meaning given to it in the Data Protection Legislation.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular
2.1 The Controller appoints the Processor and the Processor accepts the appointment to process Personal Data on the Controller’s behalf from time to time in accordance with the terms of this Schedule.
2.2 The parties will comply with all applicable requirements of the Data Protection Legislation.
2.3 Annex 1 sets out the scope and nature of the processing and the types of Personal Data.
3 Processor’s obligations as Processor
3.1 The Processor shall:
3.1.1 only process the Personal Data in accordance with the terms of this Schedule or any further documented instructions from the Controller and solely in relation to the performance thereof save where the Processor is required to do so by law; in which case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such informing on important grounds of public interest. If the Processor in its opinion, becomes aware that any such term or instruction infringes the GDPR, the Processor shall immediately inform the Customer of such infringement;
3.1.2 ensure that persons authorised to process the Personal Data have been required to commit themselves in writing via an employment agreement containing confidentiality provisions or some other contractual document to confidentiality or are under an appropriate statutory obligation of confidentiality;
3.1.3 assess and implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the Data Subject represented by the processing, including as appropriate:
184.108.40.206 the pseudonymisation and/or encryption of Personal Data;
220.127.116.11 the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and Processing Services;
18.104.22.168 the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
22.214.171.124 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
3.1.4 in assessing the appropriate level of technical and organisational measures required to undertake the processing and ensure security as per clause 3.1.3, the Processor shall take account in particular of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data of the type being transmitted, stored or otherwise processed.
3.2 The Processor shall, taking into account the nature of the processing, assist the Controller by appropriate technical and organisational measures to enable the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Chapter III of the GDPR.
3.3 The Processor shall assist the Controller in the compliance of its obligations pursuant to Article 32-36 of the GDPR taking into account the nature of the processing and the information available to the Processor.
3.4 The Processor shall, so far as it is lawful to comply, at the choice of the Controller, delete or return all the Personal Data to the Controller after the end of the provision of the Processing Services, and delete existing copies unless copies of the Personal Data need to be retained for compliance with the Processor’s statutory obligations.
3.5 The Processor shall make available to the Controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and, if requested, contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller, including without limitation any regulatory authority of the Controller.
3.6 Subject always to clause 3.10 where the Processor engages a sub-processor to carry out specific processing activities on behalf of the Controller, the Processor must prior to any processing by the relevant sub-processor enter into a written contract with the sub-processor insofar as they relate to data processing.
3.7 The Processor shall make available to the Controller, its auditors and any regulator to which the Controller is subject such of the records and information necessary to demonstrate compliance with the obligations in Article 28 of the GDPR.
3.8 The Processor must notify any data breach to the Controller without undue delay after it becomes aware of the same.
3.9 Regarding transfers of Personal Data to a third country (being a country outside of the European Economic Area), such transfers shall only a) where the Processor is required to do so by law; in which case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such informing on important grounds of public interest; or b) where there is an international transfer to a country that does not ensure an adequate level of protection for the rights and freedoms of Data Subjects in relation to the processing of Personal Data as determined by the European Commission, the Processor has put in place the Standard Contractual Clauses with the data importer.
3.10 The Processor may not appoint a Sub-processor without the prior specific written consent or general written authorisation of the Controller (which the Controller shall not unreasonably withhold).
4 Sub processors
4.1 The Controller consents to the Processor appointing the parties listed in Annex 2 as third-party processors.
5.1 The provisions of this Schedule are expressly agreed by the parties to survive any termination or expiry of the Contract however arising.
6 Limitation of liability
6.1 Subject to clause 6.3, the Processor’s total liability to the Controller, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Schedule shall be limited to £50,000.
6.2 The Processor shall not in any circumstances be liable to the Controller for any loss of profit, loss of business, loss of business opportunities, business interruption, reputation, reputation, goodwill or any indirect, consequential or special loss.
6.3 Neither party excludes or limits its liability to the other party for fraud or fraudulent misrepresentation, death or personal injury caused by negligence or any other type of liability that cannot be excluded or limited by law.
6.4 The parties acknowledge and agree that in the event of any conflict or inconsistency between the terms of this Schedule and the Conditions in relation to the processing of Personal Data and the liability of the Processor in relation to the processing of Personal Data, (i) the terms of this Schedule shall prevail to the extent of such conflict or inconsistency and (ii) the Processor shall be deemed not to be in breach of the Conditions as a result of complying with the terms of this Schedule.
7 Rights and Remedies
The rights and remedies provided under this Schedule are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of this Schedule is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Schedule.
9 Third-Party Rights
A person who is not a party to this Schedule shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Schedule.
SCOPE OF PROCESSING
Processing will be limited to personal data provided by the controller or its affiliates or collected by the processor in order and in accordance with the engagement or to manage the controller’s account.
TYPE OF PERSONAL DATA
Any Personal Data provided by the Controller to the Processor which may include:
• Contact details (professional email address, phone number, title)
• Information about employees / key contacts or account managers.
• Client data, personal email address, phone number, name, home address
This data will be provided to the processor in accordance with the engagement.
NATURE OF PROCESSING
Collecting, storing, accessing, transferring, deleting.
List of Sub processors
Name of subcontractors
FPL Outsource (PRIVATE) Limited
Company number – 116994
Address – 121B, Negombo Road, Liyanagemulla, Seeduwa, Sri Lanka
Silicosys Technologies India Pvt Lt
Company number – N/A
Address – No: 14, 2nd Floor, Indira House, New BEL Road, RMV 2nd Stage, Bangalore 560094
Esoftflow Company Limited
Company number – 011043001463
Address – 7th floor, Han Viet Tower, 203 Minh Khai Street, Minh Khai Ward, Hai Ba Trung District, Hanoi, Vietnam