Table of Contents
3. Licence Fee
13. Spot Checking
18. No partnership
21. No Assignment
1.1 In this Agreement, unless inconsistent with the context or otherwise specified, the following words shall have the following meanings:
‘Agreement’: this service user Agreement, as may be varied or amended in writing by the parties from time to time;
‘Confidential Information’: all Data utilised for the purposes of Property Monitor, disclosed by the Data Provider and whether before, on or after the date of this Agreement, but excluding Data that:
(i) is or becomes generally available to the public other than: (i) as a result of its disclosure by the Data Recipient in breach of this Agreement; or (ii) as a result of its disclosure in breach of any other undertaking of confidentiality addressed to the person to whom the information relates;
(ii) the parties agree in writing is not confidential or may be disclosed; or
(iii) was available to the Data Recipient on a non-confidential basis prior to disclosure for use in connection with the Property Monitor;
‘Data’: means the data available through Property Monitory which shall include any Property Data provided by You and any similar data provided by third parties for the purposes of inclusion in the Property Monitor;
‘Data Provider’: You, where indicated on the Order Form that You are acting as Data Provider;
‘Documentation’: has the meaning provided in Recital (B):
‘Enhancement’: the amended versions, releases and other generally available modifications to the Property Monitor;
‘Effective Date’: the date on which the Order Form is signed by each Party;
‘Licence Fee’: the fee specified in the Order Form;
‘Order Form’: an ordering document or online order specifying the products and services to be provided hereunder that is entered into between You and Us.
‘Property Data’: all information relating to residential and commercial sales and leasing transactions in the Territory whether provided in electronic or hard copy format intended for use in relation to the Property Monitor;
‘Property Monitor’: has the meaning provided in Recital (A);
‘Representative’: directors, officers, employees, agents and professional advisors;
‘Term’: the period from the Effective Date until the earlier of: (i) the expiration of 12 months; or (ii) the date on which this Agreement is terminated in accordance with Clause 15;
‘Territory’: the United Arab Emirates and any other jurisdiction to which the Data may relate; and
‘Update’: updates, modification and bug fixes to Property Monitor.
‘User’: means an individual who is Authorised by You to use this service
‘We’, ‘Us’ or ‘Our’: PROPERTY MONITOR SOFTWARE & SERVICES LLC, a limited liability company having its registered office at 2205 Marina Plaza, Dubai Marina, P.O. Box 118624, Dubai United Arab Emirates
‘You’ or ‘Your’: the company or other legal entity for which you are accepting this Agreement.
In this Agreement the following rules of interpretation shall apply:
(b) Clause and paragraph headings shall not affect the interpretation of this Agreement.
(c) References to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and that person's legal and personal representatives, successors and permitted assigns.
1.2 Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
2.1 Subject to the timely payment of the Licence Fee, We agree to provide a non-transferable, non-exclusive and revocable licence to You to use the Property Monitor including any Enhancements and Updates from time to time.
3.2 Failure to make payment of the License Fee when due will be deemed a material breach of this Agreement, unless You are a Data Provider using a free version of the Property Monitor.
4.1 Without prejudice to the generality of Clause 4.1:
(a) You may reference the Data in Your marketing material provided always that the source of the Data is attributed; and
(b) You may not use the Data for any other commercial purpose.
4.2 You are responsible, at Your sole cost and expense, for providing facilities suitable to enable You and Your Representatives to access the Property Monitor, including computer terminals, Internet connectivity and communication software.
4.3 Except as expressly set out in this Licence or as permitted by any local law, You undertake:
(a) not to copy, reproduce, display, deploy, perform, distribute, transmit, make available or create derivative works based on, any part of the Property Monitor or the Documentation except where such copying is incidental to normal use of the Property Monitor or where it is necessary for the purpose of back-up or operational security. ;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any part of the Property Monitor or Documentation;
(c) not to make alterations to, or modifications of, any part of the Property Monitor;
(d) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Property Monitor, nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Property Monitor with another software program, and provided that the information obtained by You during such activities:
(i) is used only for the purpose of achieving inter-operability of the Property Monitor with another software program;
(ii) is not disclosed or communicated without Our prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(iii) is not used to create any software which is substantially similar to any part of the Property Monitor;
(e) to keep all copies of the Property Monitor and the Documentation secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Property Monitor and the Documentation;
(f) to supervise and control the use of the Property Monitor and ensure that the Property Monitor is used by Your Representatives in accordance with the terms of this Agreement; and
(g) not to provide, or otherwise make available, the Property Monitor in any form, in whole or in part, to any person other than the Your Representatives without prior written consent from Us.
4.4 You will be solely responsible for the use, supervision, management and control of the Property Monitor. You will ensure that the Property Monitor is protected at all times from access, use or misuse, damage or destruction by any person not authorized by this Agreement for that purpose
4.5 You must permit Us and Our Representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Property Monitor or the Documentation is being kept or used, and any records kept pursuant to this Agreement, for the purpose of ensuring that you are complying with the terms of this Agreement.
5.1 You will, and will procure that Your Representatives who have access to the Property Monitor will, keep all usernames and passwords required to access the Property Monitor secure and confidential and will not reveal these to any other person.
5.2 Each individual officer, employee or agent for whom You wish to have access to the Property Monitor will agreed in writing from time to time. A single username will be provided per individual. A username will only be issued by Us upon receipt of a valid email address at the email domain of the User. Usernames will not be issued:
(a) for general email addresses that are not specific to an individual; or
(b) for email addresses that are not related to Your email. For the avoidance of doubt, email addresses for Your other group entities will not be accepted.
5.3 You acknowledge that You are entirely responsible for all activities that occur through the use of Your usernames and passwords. You will immediately notify Us of any unauthorised use of Your usernames and passwords or any other breach of security. On receipt of notification from the You, We will cease processing requests that use those usernames.
5.4 You release Us from any and all claims arising from any reasonable reliance by the You on any use of Your usernames and passwords.
6.1 Risk of loss or damage to the physical media on which the Property Monitor is delivered to You passes to You upon delivery of the Property Monitor.
7.1 Subject to Clause 10.2, You acknowledge that all intellectual property rights in the Property Monitor and the Documentation throughout the world belong to Us or Our licensors, that rights in the Property Monitor are licensed (not sold) to the You, and that You have no rights in, or to, the Property Monitor or the Documentation other than the right to use them in accordance with the terms of this Agreement.
7.2 The Parties acknowledge that any intellectual property rights in existence on the date that this Agreement is signed, or that are developed independently of this Agreement, will remain the sole property of the Party that owned or developed those intellectual property rights (Pre-Existing IP). You grant Us a non-exclusive, non-transferable, royalty-free licence to use Your Pre-Existing IP that You request Us to include as part of the Property Monitor.
7.3 You must maintain all copyright notices on any part of the Property Monitor and the Documentation and must not remove the same. You must notify Us immediately in writing if you know of any circumstances that suggest any person may have unauthorised knowledge, possession, access to or use of the Property Monitor.
7.5 The Property Monitor may be protected by technical protection measures (TPM) so that Our intellectual property rights, including copyright in the Property Monitor, are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in its possession for private or commercial purposes, any means whose intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
8.1 Both parties warrant and represent to the other party that:
(a) It has been duly incorporated in the territory with all necessary power and authority to assume the obligation as provided in this Agreement.
(b) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorised by all necessary corporate action, and upon execution and delivery thereof, this Agreement will be a valid, binding and enforceable obligation of it.
(c) It possesses all governmental licenses, permits, certificates, consents, orders, approvals, memberships in self-regulatory organisations and other authorisations (collectively referred to as Permits) necessary legally to carrying out its obligations under this Agreement, and in so doing, the party shall comply with the terms of such Permits.
(d) The execution, delivery and performance of this Agreement will not violate any obligation by which the party is bound, whether arising by contract, operation of law or otherwise.
9.1 The Property Monitor is provided and licensed on an "as is" basis, and all representations or warranties (statutory, express or implied except any which may not lawfully be excluded) are expressly excluded, including without limitation any implied warranties as to merchantability or fitness for any particular purpose. Without limiting the foregoing, We make no representations in relation to the availability, performance or functionality of the Property Monitor or that the Property Monitor will be error-free, or that any errors will be corrected. These limitations will apply notwithstanding the failure of essential purpose of any remedy.
9.2 You acknowledge that the Property Monitor has not been developed to meet Your individual requirements and that it is therefore Your responsibility to ensure that the features, functions and performance of the Property Monitor meet Your requirements.
9.3 You acknowledge that the Property Monitor may not be free of bugs or errors and You agree that the existence of any such errors shall not constitute a breach of this Agreement.
10.1 Our maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the amount actually paid by You for the Property Monitor.
11.1 The provisions of this Part B shall only apply where You also act as Data Provider. If You are not acting as Data Provider, the provisions of this Part B shall not apply to you.
11.2 You shall provide the Property Data to Us in such format and on such frequency as may be agreed in writing from time to time by the parties. It is agreed that the Property Data shall not include details relating to the source of the Property Data (i.e. You), the unit number of the property concerned or other personal details through which an individual may be identified.
11.3 The provision of data under this Agreement by You will include all off-plan and secondary market deals and rental and sale transactions for both residential and commercial (industrial, office, retail, land and labour camps) assets that You are involved in with data provided at both MOU and transfer stage.
We shall not at any time without Your prior written consent:
(a) Utilise, copy, employ or use in any other manner any of the Confidential Information otherwise than for the Property Monitor;
(b) Disclose any of the Confidential Information to any third party, other than: (i) to any of Your Representatives who are reasonably required in the course of their duties to receive and acquire the same and who are obliged to treat the Confidential Information on the same terms and conditions as contained in this Agreement; and (ii) as required for the commercial operation of the Property Monitor. We shall remain primarily liable for any breach of these provisions by any of Our Representatives; and
(c) Make any copies of the Confidential Information or reproduce it in any form except for the purpose of supplying the same to those whom disclosure is permitted in accordance with this Agreement;
12.2 We shall take every reasonable precaution to maintain the confidentiality of the Confidential Information.
12.3 We may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so We give You as much notice of this disclosure as possible.
12.4 You agree that:
(a) This Agreement is an exclusive arrangement and You shall not at any time without Our prior consent disclose the existence or contents of this Agreement to any third party including but not limited to any other persons who operate business competing with Us, valuation companies and market research companies.
(b) You are providing information under this Agreement to Us on an exclusive basis. Under the terms of this Agreement, this prevents You from providing such information to all third parties on a formal basis in a data format which would include but is not limited to spreadsheet, database, hard-disk and the like.
(d) You shall notify Us immediately in the event that You receive a request for information on a formal basis from any third party including any valuation company or market research company.
13.1 You agree that We will be able to review documentation to support data provided via a series of spot checks conducted at Your office (the Transactional Data Audit). Under this Agreement You consent to the following:
(a) A maximum of 12 annual Transactional Data Audits including presentation of copy of signed MOU, title deed, buyer and seller documentation and transfer documentation.
(c) Our Representatives can request the review of documentation to support up to 3-4 pieces of transactional data per Transactional Data Audit.
13.2 We will view documentation but are not permitted to retain any documentation or copies thereof.
14.1 You shall use all reasonable endeavours to ensure the accuracy and completeness of the Property Data provided pursuant to this Agreement. However, it is acknowledged by the parties that no representation or warranty as to the accuracy and completeness of the Data is provided by You.
15.1 A party may terminate this Agreement to the other party:
(a) by giving  days' prior written notice; or
(b) immediately by written notice to the other party if:
(i) the other party commit a material or persistent breach of this Agreement which it fails to remedy (if remediable) within [seven] days after the service on the other party of written notice requiring it to do so;
(ii) an insolvency event happens in relation to that other party (whether or not notified);
(iii) You have agreed to act as a Data Provider, are using the free version of the Property Monitor and:
(A) do not provide Property Data for inclusion in Property Monitor at least once every two weeks; or
(B) the Property Data is persistently inaccurate; or
(iv) We become aware of unusual or suspicious usage patterns in relation to Property Monitor, including multiple log-ins to Property Monitor at the same time or in unusual locations)
15.2 Upon termination for any reason:
(a) all rights granted to You under this Agreement in relation to the licence to use Property Monitor shall immediately cease;
(b) You must cease all activities authorised by this Agreement; and
(c) You must immediately delete or remove the Property Monitor from all computer equipment in your possession and immediately destroy or return to Us (at our option) all copies of the Property Monitor and the Documentation then in Your possession, custody or control and, in the case of destruction, certify to the Us that you have done so.
15.3 In the event of termination pursuant to Clause 15.1(b)(iii)(A), this Agreement may be reinstated provided that You recommence providing Property Data and all outstanding Property Data for the period between the date on which the You ceased providing Property Data and the date of reinstatement is provided.
15.4 In the event of termination pursuant to Clause 15.1(b)(iii)(B), any reinstatement of this Agreement will be at the sole discretion of the Service Provider.
16.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
16.3 No waiver of any of the provisions of this Agreement shall be effective unless made in writing and signed by an authorised official of each of the parties to this agreement.
17.1 The parties acknowledge that the breach or threatened breach of this Agreement by a party may result in irreparable injury to the other party and that, in addition to its other remedies, the other party shall be entitled to injunctive relief from any court of competent jurisdiction to restrain any threatened or continued breach of this agreement.
18.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any legal partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
19.1 A person who is not a party to this Agreement shall not have any rights under or in connection with it.
20.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of United Arab Emirates.
20.2 Any dispute connected with the formation, performance, interpretation, nullification, termination or invalidation of this Agreement or arising from, or related to, this Agreement in any manner whatsoever shall be referred to the exclusive jurisdiction of the courts of the Dubai International Financial Centre.
Except as otherwise provided in this Agreement, no Party may assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement or any document referred to in it.
22.1 This Agreement constitutes the whole Agreement between the parties and supersedes all previous Agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or incorrectly) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.