TERMS AND CONDITIONS FOR MARTELLO’s RESIDENTIAL AND COMMERCIAL ENVIRONMENT REPORTS
“Beneficiaries” means those persons, as relevant, referred to in Condition 5.1;
“Conditions” means these terms and conditions;
“Customer” means the party that places the Order, not being a Search Provider;
“Buyer” means the client of the Customer for whom the Customer has procured the Report;
“Information Access Regime” means any of the Freedom of Information Act 2000, Environmental Information Regulations 2004 and other associated legislation and guidance;
“Martello” means the trading name of MyNestBox Limited, registered in England under company number 12550869;
“Order” means an electronic, written or other request from the Customer made directly to Martello or through the Reseller for the Report;
“Property” means the property specified in the Order;
“Report” means a Martello Environment Report prepared by Martello in respect of the Home;
‘’Reseller’’ means any entity authorised by or contracted with Martello and through which the Customer may place an Order.
“Search Provider” means a third party provider of conveyancing searches;
“Site” means Martello’s website at www.martello.app
1.1 The Customer agrees that by placing an Order it accepts these Conditions.
1.2 Following receipt of the Order, Martello agrees to supply the Report to the Customer promptly after receiving a correctly completed Order.
1.3 These Conditions govern the relationship between Martello, the Customer and the Buyer. The Customer and the Buyer will be deemed to have accepted these Conditions and to be legally bound by them if and when the Customer pays the charge for the Report at the rate set out by the Reseller or on the Site.
1.4 These Conditions will prevail at all times to the exclusion of all other terms and conditions which the Customer and / or the Buyer may purport to apply.
1.5 These Conditions, together with the recommended retail prices set out on the Site and price and delivery details as set out by the Reseller, will comprise the whole of the agreement by Martello to supply the Report to the Customer.
1.6 Martello may modify these Conditions at its sole discretion, with immediate effect and without prior notice. Any modification of these Conditions will be posted on the Site. For avoidance of doubt, each modification of these Terms shall apply to the Orders placed after such modification.
2.1 The Customer shall rely on its own skill and judgement in determining the suitability of the Report for its own purpose and use.
2.2 Before placing an Order the Customer will carefully check that the correct address and details relating to the Property are provided to Martello;
2.3 Martello acknowledges that in providing the Report it owes a duty of care to the Customer and to the Beneficiaries.
2.4 Martello shall use all reasonable care, skill and diligence in the preparation of the Report.
2.5 The Customer acknowledges and agrees that the Report is provided on the following basis:
2.5.1 Martello does not warrant the accuracy or completeness of information and data supplied in the Report, as such information and data are derived from third party sources;
2.5.2 Martello does not claim that these sources represent an exhaustive or comprehensive list of all sources that might be consulted;
2.5.3 Martello does not guarantee that all risks, features and (where relevant) past and current uses which may affect the Property will be identified in the Report;
2.5.4 in preparing the Report, Martello shall not verify the data or information by a physical inspection of the Home, unless previously agreed in writing;
2.6 The Customer shall on receipt of the Report carry out a reasonable inspection to satisfy itself that there are no apparent defects or failures with respect to the description and location of the Property and shall promptly inform Martello if they are or should reasonably be aware of any such defect or failure.
3.1 Martello shall be liable, subject to Condition 3.2, to the Customer and the Beneficiaries only, for loss caused by the negligence of Martello in its mapping of the Customer’s plan of the Property onto the Martello system or in its interpretation of information or mapping supplied by third parties.
3.2 Subject to Condition 3.6, Martello shall not be liable in any other circumstances to the Customer and the Beneficiaries, including, without limitation:
3.2.1 for any error in the Report resulting from inaccuracy, corruption or omission of information and data provided by a third party, the Customer or any Beneficiary, or from computer malfunction or corruption of data whilst in the course of processing, except to the extent that Martello should reasonably have been alerted to such error;
3.2.2 for loss of profits, loss of contracts or other indirect or consequential loss or damage resulting from any error or omission by Martello in the provision of the Report;
3.2.3 for any physical damage to or loss of the Customer’s and / or the Beneficiaries's tangible property arising in any way out of any act or omission by Martello whether such loss or damage arises under contract, tort (including negligence) or otherwise;
3.2.4 if the Report is designed for property used for residential purposes, but is relied upon for property used for commercial purposes, or if the Report is relied upon for property more extensive than the Home;
3.2.5 for any errors, omissions or misstatements in or delays in the provision of any third party service, data, software, information, content, functionality, risk models, risk assessments, professional opinions and the like used directly or indirectly or to any extent in relation to the production, content, creation or distribution of the Report; or
3.2.6 for any insurance policy purchased in connection with any risk identified in the Report. Independent advice should be sought as to which insurance policy is suitable.
3.3 Any party, other than the Customer or the Beneficiaries, who relies on the Report does so entirely at its own risk, including, without limitation, any insurers. Martello accepts no responsibility and shall not be liable to any such party for any loss caused as a result of reliance upon the Report.
3.4 Time shall not be of the essence in respect of the provision of the Report, except where it has agreed in writing a deadline with the Customer, provided always that Martello shall not be liable for any delay, interruption or failure in performance of its obligations arising from circumstances outside its control, including, without limitation: war, flood, riot, Act of God, strike or other labour dispute, suspension or delay of service at public registries, lack of power, telecommunications failure or overload or computer malfunction.
3.5 Martello's aggregate liability arising out of the provision of the Report in contract, negligence or otherwise, for damages or loss sustained or incurred by the Customer and the Beneficiaries shall be limited (except in relation to fraud, death or personal injury) to an aggregate amount in respect of each Report not exceeding £10 million. For the avoidance of doubt, if multiple parties make use of the Report, the limit referred to above applies to all users of that Report in aggregate.
3.6 Martello’s liability under the Conditions for the Report shall cease upon the expiry of six years from the date when the Customer or any of the Beneficiaries became aware that it may have a claim in respect of the Report, provided always that there shall be no liability at the expiration of twelve months from the date of the Report. For the avoidance of doubt, any claims in respect of which proceedings are notified to Martello prior to the expiry of the time periods referred to in this Condition shall survive the expiry of those time periods.
3.7 Martello shall maintain professional indemnity insurance in respect of its liability under these Conditions for the period of liability provided for by Condition 3.6, provided that such insurance is available at commercially reasonable rates (and in such case then at the next highest limit which is available in the market at commercially reasonable rates).
3.8 Martello holds an amount of 10 million pounds (£10,000,000.00) on each and every claim or loss, excluding defence costs. In any event, and notwithstanding anything contained in these Conditions, Martello’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising in any way in relation to the Reports (except in relation to death or personal injury) will not exceed an aggregate amount of 10 million pounds (£10,000,000.00) per claim or per series of connected claims in all cases.
3.9 Details of Martello’s professional indemnity insurance shall be made available to the Customer on request.
3.10 Nothing in these Conditions shall exclude Martello’s liability for fraud or for death or personal injury caused by Martello’s negligence or breach of its statutory duty.
4.1 The Customer and the Beneficiaries acknowledge that all intellectual proprietary rights in respect of the data and information contained in the Report, including copyright and design rights, are and shall remain the property of Martello or any third party that has supplied information or data used to create the Report, as appropriate, and these Conditions do not grant or purport to grant, assign, or transfer any such rights.
4.2 The Customer and the Beneficiaries are each entitled to make up to six copies only of the Report. Copies of the Report may be provided for information purposes only to a person who is considering whether to acquire or hold an interest in the Property or to provide funding in relation to the Home. Further copies may not be made in whole or in part without the written permission of Martello who shall be entitled to make a charge for each additional copy.
4.3 The Customer shall (and shall procure that the Beneficiaries shall):
4.3.1 not remove, suppress or modify any trademark, copyright or other proprietary marking belonging to Martello or any third party from the Report;
4.3.2 not create any product which is derived directly or indirectly from the information and data contained in the Report or combine the Report with or incorporate the Report into any other information, data or service; and
4.3.3 not re-format, add to or otherwise change any data or material contained in the Report.
4.4 Conditions 4.3.2 and 4.3.3 shall not prevent the Customer and those Beneficiaries who are acting in a professional capacity from providing written advice based upon the Report to other Beneficiaries.
4.5 The Customer and the Beneficiaries shall notify Martello of any requirement to disclose, publish or disseminate any information contained in the Report in accordance with the Information Access Regime;
4.6 The mapping contained in the Report is protected by Crown Copyright and must not be used for any purpose outside the context of the Report.
5.1 Subject to Condition 5.2, the Customer may without further charge make the Report available to:
5.1.1 the Buyer;
5.1.2 any other person for whom the Customer acts in a professional capacity in relation to the Report;
5.1.3any person who acquires or holds an interest in the Property or the entity which holds or acquires an interest in the Home, except that nothing shall entitle any such person to recover twice (whether directly or indirectly) in respect of the same loss or seek recovery in respect of any loss relating to any period after such entity ceases to hold its interest or to have potential liability for the Property(whichever is the later) (unless otherwise agreed in writing by the parties);
5.1.4any person who provides funding to the Buyer or to a person referred to in Condition 5.1.3 for the purchase of the Property in respect of which the Report applies; and
5.1.5any person acting in a professional capacity in relation to the Property for the Buyer or for any person referred to in Conditions 5.1.3.
5.2 The Beneficiaries shall be entitled to rely on the Report as if it was addressed to them and any such person shall be entitled to enforce each of these Conditions as if they were named in the Order, provided always that the person to whom the Report is made available accepts these Conditions.
5.3 The Report is to be used solely for the benefit of the Customer and the Beneficiaries.
5.4 The Report and any information provided by the Customer to Martello in contemplation of the preparation of the Report shall be treated as confidential information.
5.5 Martello agrees not to disclose or publish any statement relating to such confidential information to any third party without the prior written consent of the Customer.
6.1 The Customer shall pay Martello's charges for the Report at the rate set out by the Reseller or on the Site, including any Value Added Tax which may be payable.
6.2 The Customer shall pay Martello’s charges for the Report without any set off, deduction or counterclaim and within 30 days of the date of Martello's invoice or the Reseller’s invoice as applicable.
6.3 If the Customer fails to make any payment on the due date, Martello shall be entitled to charge interest on overdue amounts at 2% per annum above the bank rate set by the Bank of England (as varied from time to time) from the due date until payment in full is made (whether before or after judgement)
6.4 Martello shall be entitled, at its sole discretion, to increase its charges once in any 12 month period and the placing of any further Order for a Report either directly from Martello or via the Reseller shall be deemed acceptance of any revisions to Martello’s charges.
6.5 The Customer shall be entitled free of charge to cancel an Order which it makes directly with Martello at any time before the Report to which the Order relates has been issued to the Customer. If the Customer makes an Order via the services of a Reseller, the Reseller may not cancel the Order without Martello’s prior written consent.
7.1 These Conditions comprise the entire agreement between the parties and no statement given orally or in writing shall be deemed incorporated unless executed in writing by a Director of Martello and signed by the Customer.
7.2 Each of the Conditions and sub conditions of these Conditions is distinct and severable. If any of them shall be determined to be invalid, illegal or unenforceable, the remainder of these Conditions shall continue to be enforceable.
7.3 Any time or indulgence granted by Martello or the Customer or delay in exercising any of its rights under these Conditions shall not prejudice or affect Martello's or the Customer’s rights or operate as a waiver of them.
7.4 Neither Martello nor the Customer shall assign its rights or obligations pursuant to these Conditions.
7.5 These Conditions shall at all times be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English courts.
7.6 Except as otherwise provided in these Conditions, a person who is not a party to any contract to which these Conditions apply shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of such contract.
8.1 Details of any complaints the Customer may have concerning Martello’s services should be sent to https://www.martello.app/complaints