Last Updated: November, 2019 Welcome to Movebubble, operated by Movebubble Ltd. (the “Company” or “Movebubble”). A company registered in England and Wales under registration number 08257717 with its registered office at 66 - 67 Newman Street, W1T 3EQ
BUILD TO RENT OPERATOR SUBSCRIPTION TERMS
- Order of Precedence
- In the event of any conflict between the provisions of the Front Sheet and these Terms and Conditions, the provisions of these Terms and Conditions shall take precedence.
- Subscription Period
- The Agreement will commence on the Commencement Date and continue for the Initial Period.
- Subject to clauses [3,] 2.4 and 2.5 at the end of the Initial Period the Agreement will continue for the First Renewal Period and automatically renew for further Renewal Periods thereafter, unless otherwise terminated by either Party in accordance with the terms of the Agreement.
- [BTR Operator may terminate the Agreement during the Initial Period by giving not less than thirty (30) days' written notice to Movebubble, such notice not to expire until on or after 23:59 hours GMT on the final day of the first three (3) Months or six (6) Months of the Initial Period.]
- BTR Operator may terminate the Agreement during the First Renewal Period or a Renewal Period thereafter by giving not less than ninety (90) days' written notice to Movebubble prior to the end of a Renewal Period, and in the event such notice is served, the Agreement will terminate at 23:59 hours GMT on the final day of the First Renewal Period or then current Renewal Period (as applicable).
- Notwithstanding the other provisions of this clause 2 and without prejudice to Movebubble's rights under clause 16, Movebubble may terminate the Agreement at any time by providing not less than thirty (30) days' written notice to BTR Operator, and in the event such notice is served, the Agreement will terminate at 23:59 hours GMT on the final day of such notice.
- Rights to Access and Use the Platform
- In consideration of BTR Operator paying the Subscription Fees, BTR Operator shall have a right to access and use the Platform in accordance with the terms of the Agreement from the Activation Date for the Subscription Period.
- BTR Operator acknowledges that its right to access and use the Platform and its functionality is limited to the following activities:
- [advertising Properties to Movebubble Prospective Renters;
- responding to enquiries from Movebubble Prospective Renters in connection with a Property;
- booking viewings of a Property with a Movebubble Prospective Renter;
- negotiating the terms of a rental agreement for a Property with a Movebubble Prospective Renter; and
- entering into a tenancy agreement with a Movebubble Prospective Renter in respect of a Property],
together the "Subscription Activities".
- BTR Operator’s right to use the Platform is also subject to the following restrictions and obligations:
- BTR Operator shall not, and shall procure that its Personnel shall not, use the Platform for any activity which breaches any applicable laws and/or any third party rights or which would place Movebubble in breach of any applicable laws and/or any third party rights;
- BTR Operator shall ensure that only its Personnel have access to and use of the Platform in connection with this Agreement and shall prevent any unauthorised access to and use of the Platform by any third party;
- BTR Operator shall not upload, post, otherwise transmit or provide access to data through the Platform which is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, infringes any third party's IPR, breaches any obligations of confidence, which is hateful, or racially, ethnically or otherwise objectionable;
- BTR Operator shall comply with any additional requirements, including guides, acceptable and fair use policies, and instructions, regarding use of the Platform which are notified to it from time to time;
- BTR Operator shall not lease, rent or resell the rights to use the Platform or allow anyone other than Personnel to use or benefit from the Platform; and
- BTR Operator shall not reproduce, copy, disassemble, decompile, reverse translate or in any other manner decode the Platform, except as permitted by applicable law.
- BTR Operator shall at all times be responsible and liable for all acts and omissions of its Personnel in connection with the Platform and compliance with the Agreement.
- BTR Operator Obligations
- BTR Operator shall, and shall procure that its Personnel shall:
- provide Movebubble with particulars of a Property on a non-exclusive basis for inclusion on the Platform in order to advertise such Properties to Movebubble Prospective Renters;
- use reasonable endeavours to work in a cohesive, constructive and professional manner, and at all times in accordance with Good Industry Practice, to deliver the Subscription Activities to Movebubble Prospective Renters in a timely manner;
- provide to Movebubble the accurate location of a Property (whether via the Platform or otherwise), for the purposes of making the location available to Movebubble Prospective Renters for a viewing of a Property;
- [BTR Operator shall provide contact details of its Personnel involved in carrying out a viewing of a Property with a Movebubble Prospective Renter to enable Movebubble or the Movebubble Prospective Renter to contact the relevant Personnel where necessary to confirm or change an appointment for a Property viewing or make an enquiry about such Property.]
- BTR Operator shall ensure that it has all rights, permissions, consents and licences necessary to supply BTR Operator Materials to Movebubble via the Platform or otherwise, and shall ensure that such BTR Operator Materials are accurate, complete and up to date.
- BTR Operator shall comply with any additional third party terms and conditions or any restrictions which are applicable to any information or data supplied to Movebubble (including BTR Operator Materials) in connection with the Agreement.
- Movebubble's Obligations
- Movebubble shall use reasonable endeavours to provide the following services to BTR Operator as part of BTR Operator's Subscription:
- make the Platform available for BTR Operator to facilitate BTR Operator in carrying out the Subscription Activities;
- use, modify, adapt and upload the particulars of a Property supplied by BTR Operator and any other BTR Operator Materials in respect of a Property, in order to advertise such Properties on the Platform to Movebubble Prospective Renters;
- [work directly with Movebubble Prospective Renters and BTR Operator to facilitate fulfilment of viewings of a Property by a Movebubble Prospective Renter],
together the "Services".
- Movebubble shall:
- use reasonable care and skill to perform the Services and shall perform the same in accordance with applicable law; and
- use reasonable endeavours to meet any performance and delivery dates for the Services as agreed between the Parties, but such dates are estimates and time will not be of the essence.
- Movebubble's Restrictions
- Movebubble shall not:
- produce any marketing material for BTR Operator or use BTR Operator Material on any marketing material for the promotion and/or delivery of Movebubble's services to Movebubble Prospective Renters or any other person without the consent of BTR Operator, save that Movebubble may advertise Properties on the Platform in accordance with any information or data supplied to Movebubble (including BTR Operator Materials); and
- without BTR Operator's prior written consent, make or give any representations or warranties concerning the Property or the services provided by BTR Operator (including the Subscription Activities) which are not contained in the BTR Operator Materials supplied to Movebubble.
- For the avoidance of doubt, by entering into the Agreement, Movebubble shall not be restricted from providing additional or alternative services to:
- those offered by Movebubble to a Movebubble Prospective Renter; or
- those the same or similar to the Subscription Activities,
at any time during the duration of the Agreement and thereafter.
- Performance of the Platform
- BTR Operator acknowledges and accepts that the Platform is provided "as is" and, to the maximum extent permitted by applicable law, all conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
- Throughout the Subscription Period, Movebubble does not represent, warrant or undertake that the Platform will be completely error-free, or will meet BTR Operator's requirements. BTR Operator acknowledges that the Platform has not been developed to meet BTR Operator's individual requirements.
- Movebubble reserves the right to enhance or update the Platform, and the way in which the Platform operates, at any time during the duration of the Agreement. Movebubble shall use reasonable endeavours to ensure any such enhancement or update does not have a materially adverse effect on BTR Operator's ability to access and use the Platform, save that nothing shall prevent Movebubble from making any enhancements or updates to the Platform or the way in which the Platform operates for the purposes of compliance with applicable law or as may be required to prevent any threat or disturbance to the availability of the Platform.
- Movebubble may suspend all or part of the Platform and/or Services at any time as may be required to carry out routine or emergency maintenance of the Platform from time to time. Movebubble shall use reasonable endeavours to minimise disruption to BTR Operator while carrying out such maintenance.
- Analysis of Use of the Platform
- BTR Operator acknowledges and agrees that Movebubble may assess, analyse, aggregate, review and examine BTR Operator's use of the Platform with Movebubble's other customer's use of the Platform (including Movebubble Prospective Renters' use), to observe and/or generate findings, trends and outputs in relation to the use of the Platform by any and all of Movebubble's customers, for its internal business purposes only.
- Subscription Fees and Payment Terms
- BTR Operator shall pay the Subscription Fees in accordance with the provisions set out in the Front Sheet.
- If BTR Operator fails to make payment of an amount when due, without affecting any other right or remedy available to it, Movebubble shall be entitled to charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment, at a rate of [3-5%] a year above Barclays Bank PLC base rate from time to time, or other such lower amount that is the maximum rate permitted by applicable law.
- All amounts payable under the Agreement are stated exclusive of VAT which shall be added to the applicable amount at the appropriate rate and shall be paid by BTR Operator together with the applicable amount.
- Movebubble may, without prejudice to any other rights it may have, set off any liability of BTR Operator to Movebubble against any liability of Movebubble to BTR Operator.
- Movebubble may increase the Subscription Fees once each Year to reflect annual changes in the Index by providing not less than thirty (30) days' notice in writing to BTR Operator, such increase to take affect from the day after the expiry of such notice.
- Intellectual Property Rights
IPR in BTR Operator Materials
- BTR Operator and its licensors shall retain all right, title and interest in BTR Operator Materials made available to Movebubble by BTR Operator in connection with the Agreement.
- Subject to clause 1, BTR Operator grants to Movebubble a worldwide, fully paid-up, royalty free, non-exclusive, non-transferable licence for the duration of the Agreement to use, copy and modify BTR Operator Materials only to the extent necessary and for the purpose of providing the Platform and the Services to BTR Operator and performing Movebubble's other obligations under the Agreement, and for no other purpose whatsoever.
IPR in Software
- Movebubble and its licensors shall retain all right, title and interest in the Platform.
- Movebubble grants to BTR Operator a non-exclusive, worldwide, paid-up, royalty-free and non-transferable licence to use the Platform for its sole business purposes to carry out the Subscription Activities and such licence shall be limited to the duration of the Subscription Period.
- Movebubble warrants that it owns, or has all necessary rights, authorisations and licences in respect of, all IPR used in the Platform to enable BTR Operator to use the Platform in accordance with the Agreement.
Know-how and works generated under the Agreement
- All right, title and interest in the IPR in:
- the Know-how gained by Movebubble through providing the Platform; and
- any works created, developed or produced as a result of the activities permitted under clause 1,
shall vest in Movebubble upon the creation of such Know-how and works.
- Data Processing
Independent controllers of Renter Profile Data
- Movebubble will disclose Renter Profile Data to BTR Operator to process strictly for the Permitted Purpose.
- The Parties acknowledge that Movebubble is a controller of the Renter Profile Data it discloses to BTR Operator, and that BTR Operator will process the Renter Profile Data as a separate and independent controller strictly for the Permitted Purpose. In no event will the Parties process the Renter Profile Data as joint controllers.
Independent controllers of Renter Chat and Viewings Data
- BTR Operator will obtain Renter Chat and Viewings Data from Movebubble Prospective Renters as a result of, and for the sole purpose of, carrying out the Subscription Activities. BTR Operator shall not obtain, via its use of the Platform, any personal data from a Movebubble Prospective Renter that is not strictly necessary to carry out the Subscription Activities.
- The Parties acknowledge that BTR Operator is a controller of the Renter Chat and Viewings Data, that is available to, or which it makes available to, Movebubble as a result of carrying out the Subscription Activities, and that Movebubble will process the Renter Chat and Viewings Data as a separate and independent controller for its own internal business purposes. In no event will the Parties process the Renter Profile Data as joint controllers.
The Parties obligations as independent controllers
- Each Party shall be individually and separately responsible for complying with the obligations that apply to it as a controller under Applicable Data Protection Law. In particular (including without limitation):
Renter Profile Data
- Movebubble shall be responsible for complying with all necessary transparency and lawfulness requirements under Applicable Data Protection Law in order to disclose the Renter Profile Data to BTR Operator for it to process Renter Profile Data for the Permitted Purpose;
- BTR Operator shall be separately and independently responsible for complying with Applicable Data Protection Law in respect of its processing of Renter Profile Data it receives from Movebubble;
Renter Chat and Viewings Data
- BTR Operator shall be responsible for complying with all necessary transparency and lawfulness requirements under Applicable Data Protection Law in order to obtain the Renter Chat and Viewings Data and to disclose the same to Movebubble; and
- Movebubble shall be separately and independently responsible for complying with Applicable Data Protection Law in respect of its processing of Renter Chat and Viewings Data it receives from BTR Operator.
- BTR Operator shall implement appropriate technical and organisational measures to protect the Renter Data from and against a Security Incident.
- BTR Operator may, at its election, appoint third party processors to process Renter Data for the Permitted Purpose, provided that such processors: (a) agree in writing to process Renter Data in accordance with BTR Operator's documented instructions; (b) implement appropriate technical and organisational security measures to protect the Renter Data against a Security Incident; and (c) otherwise provide sufficient guarantees that they will process the Data in a manner that will meet the requirements of Applicable Data Protection Law.
- BTR Operator shall not process any Renter Data (nor permit any Renter Data to be processed) in a territory outside of the EEA unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law.
- In the event that BTR Operator receives any Correspondence related to (a) the disclosure of the Renter Profile Data by Movebubble to BTR Operator for the Permitted Purpose; or (b) the Renter Chat and Viewings Data obtained via BTR Operator's use of the Platform, it shall promptly inform Movebubble giving full details of the same, and the Parties shall cooperate reasonably and in good faith in order to enable Movebubble to respond to the Correspondence in accordance with any requirements under Applicable Data Protection Law (unless Movebubble requires BTR Operator to respond to the Correspondence, in which case BTR Operator shall respond to the Correspondence on Movebubble's instructions).
Movebubble's obligations as processor of Renter Data and BTR Operator Personnel Data
- The Parties acknowledge and agree that for the purposes of the Agreement, unless otherwise stated in this clause 11, BTR Operator is the controller and Movebubble is the processor of Renter Data and BTR Operator Personnel Data processed in connection with the provision of the Services (as further described in clause 14). The Parties shall comply with their respective obligations under all relevant Applicable Data Protection Law.
- Where Movebubble is acting as a processor of Renter Data and BTR Operator Personnel Data, Movebubble:
- shall process Renter Data and BTR Operator Personnel Data as is necessary to perform its obligations under the Agreement and in accordance with the documented instructions of BTR Operator, except where otherwise required by any EU (or any EU Member State) law applicable to Movebubble. Movebubble shall inform BTR Operator if it becomes aware that BTR Operator's processing instructions infringe Applicable Data Protection Laws;
- shall ensure that any person it authorises to process Renter Data and BTR Operator Personnel Data is subject to a duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process Renter Data and BTR Operator Personnel Data who is not under such duty of confidentiality;
- shall implement appropriate technical and organisational measures to protect Renter Data and BTR Operator Personnel Data from a Security Incident, having regard to the measures set out in Article 32 of the GDPR;
- may, subject to clause 11(e), appoint third party subprocessors to process Renter Data and BTR Operator Personnel Data provided that such appointment complies with clause 11.11(a) and such subprocessors provide sufficient guarantees that they will process the Renter Data and BTR Operator Personnel Data in a manner that will meet the requirements of Applicable Data Protection Law by entering into a contract containing the same or similar terms to those set out in this clause 11.11. Movebubble shall be liable for any breach of this clause 11.11 that is caused by an act or omission of any third party subprocessor appointed by Movebubble;
- shall, if it intends to change a third party subprocessor (including appointing a new third party subprocessor after the Commencement Date), notify BTR Operator and give BTR Operator [fourteen (14) days'] prior written notice before the new third party subprocessor processes any Renter Data and BTR Operator Personnel Data. If by the expiry of such notice:
- BTR Operator does not notify Movebubble in writing of any objections to the proposed appointment, BTR Operator shall be deemed to have consent to the appointment of the new third party subprocessor; or
- BTR Operator does notify Movebubble in writing of any objections to the proposed appointment (which must be made on reasonable grounds relating to BTR Operator's compliance with Applicable Data Protection Laws), Movebubble shall not use such new third party subprocessor to process Renter Data and BTR Operator Personnel Data until reasonable steps have been taken to address BTR Operator's objections and BTR Operator has been provided with a reasonable written explanation of the steps taken to address BTR Operator's objections;
- may transfer Renter Data and BTR Operator Personnel Data outside of the EEA provided that Movebubble takes such measures as are necessary to ensure the transfer is in compliance with the Applicable Data Protection Laws;
- upon becoming aware of a Security Incident, shall inform BTR Operator without undue delay and shall provide such information and cooperation as BTR Operator may require in order for BTR Operator to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) the Applicable Data Protection Laws. Movebubble shall further take such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep BTR Operator informed of all material developments in connection with the Security Incident;
- provide reasonable cooperation and assistance to BTR Operator to conduct a data protection impact assessment in accordance with the Applicable Data Protection Laws, including, if necessary, to assist BTR Operator to consult with the relevant supervisory authority; and
- shall, in the event that Movebubble receives any Correspondence related to its processing of Renter Data and BTR Operator Personnel Data in its capacity of a processor, promptly inform Movebubble giving full details of the same, and the Parties shall cooperate reasonably and in good faith in order to enable BTR Operator to respond to the Correspondence in accordance with any requirements under Applicable Data Protection Law.
- Upon the termination or expiry of the Agreement, Movebubble shall at BTR Operator's request return to BTR Operator or destroy all Renter Data and BTR Operator Personnel Data (including all copies thereof) in its possession, or received in the course of the performance of the Agreement, save that this requirement shall:
- be without prejudice to any requirements to retain Renter Data and BTR Operator Personnel Data for compliance with legal or contractual obligations; and
- not apply to any Renter Data Movebubble is processing in its capacity as a controller.
- Movebubble shall permit BTR Operator (or its appointed third party auditors, provide such auditors are subject to a statutory or contractual duty of confidentiality) to audit Movebubble's compliance with clause 11, and shall make available to BTR Operator all information, systems and staff necessary for BTR Operator (or its third party auditors or a supervisory authority) to conduct such audit. Movebubble acknowledges that BTR Operator (or its third party auditors or a supervisory authority) may enter its premises for the purposes of conducting this audit, provided that BTR Operator gives Movebubble [ten (10) Business Days] prior notice of its intention to audit, conducts its audit during Movebubble's normal business hours (as notified to BTR Operator), and takes all reasonable measures to prevent unnecessary disruption to Movebubble's operations, and in any case shall carry out such audit within three (3) Business Days. BTR Operator will not exercise its audit rights more than once in any twelve (12) calendar month period, except if and when required by instruction of a supervisory authority.
- The Parties acknowledge and agree that:
- the subject matter and duration of the processing is: the performance of the Services by Movebubble to BTR Operator in accordance with the terms of the Agreement, subject the clause 12;
- the nature and purpose of the Processing is: to facilitate the BTR Operator carrying out the Subscription Activities for the purposes of securing new tenants for the Properties;
- the type of Personal Data is: name, email address, mobile number, job title, place of work, photograph, conversation history, response rating, details of the Property to be viewed by the Movebubble Prospective Renter, date and time of viewing and if viewing was successful; and
- the categories of data subjects is: Movebubble Prospective Renters and BTR Operator Personnel.
- This clause 11 shall survive termination or expiry of the Agreement. Upon termination or expiry of the Agreement.
- Each Party agrees, where it is the recipient of any Confidential Information:
- to keep Confidential Information secret and confidential;
- to use Confidential Information solely for the purposes of exercising its rights or performing its obligations under the Agreement and not for any other purpose; and
- that it shall not disclose or make available any Confidential Information to any person, except as expressly permitted in the Agreement or as specifically permitted by the discloser in writing.
- The restrictions in clause 1 shall not apply in respect of any Confidential Information which:
- at the time of disclosure or subsequently enters into the public domain, other than as a result of a breach of any obligations of confidentiality by the recipient;
- has been received from a third party not under any confidentiality obligation to the discloser in respect of such information;
- was already in the possession of the recipient at the time of disclosure by or on behalf of the discloser and in relation to which the recipient does not owe a separate obligation of confidentiality to the discloser; or
- is independently developed by the recipient or its representatives who had no access to the discloser's Confidential Information.
- The recipient may disclose Confidential Information to its officers, directors, employees, contractors, agents and professional advisors and those who require access to such Confidential Information in order to exercise its rights or perform its obligations under the Agreement.
- The recipient shall be entitled to disclose Confidential Information to the extent required to do so by law, regulation (whether governmental or of a regulatory body or authority) or order of a court of competent jurisdiction. Where such a disclosure is necessary, the recipient shall so far as legally permitted, promptly notify the discloser of the same in writing prior to disclosure.
- Nothing in the Agreement shall prevent Movebubble from using Know-how gained during the course of the provision of the Platform and the Services in the furtherance of its own business, provided that in using such Know-how, such Party shall not:
- breach its obligations of confidentiality under the Agreement or under agreements with third parties; or
- infringe the IPR of the other Party or any third party.
- Movebubble shall have the right at all times to use non-personal and operational information generated from the Platform for its own internal business purposes, provided that doing so will not disclose the Confidential Information of BTR Operator to any third party.
- BTR Operator shall not, through its access to and use of the Platform, introduce any Destructive Code into the Platform.
- BTR Operator shall ensure that it implements and maintains adequate information security practices in accordance with Good Industry Practice across its networks, hardware, software, equipment and infrastructure, including any of the same that interoperate with the Platform ("BTR Operator IT Environment"), to prevent any Destructive Code from entering, or being introduced into, the Platform throughout the duration of the Agreement.
- BTR Operator shall ensure that any BTR Operator Materials uploaded, posted, otherwise transmitted or provided to Movebubble via the Platform or otherwise is free from any Destructive Code.
- Nothing in the Agreement limits or excludes liability:
- for death or personal injury caused by negligence;
- for fraud or fraudulent misrepresentation;
- for any statutory implied terms or any other liability that cannot be limited or excluded by applicable law; or
- under the indemnity in clause 2.
- Subject to clause 1, neither Party shall be liable to the other Party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
- loss of profits and/or revenue;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of use or corruption of software;
- wasted expenditure; or
- any indirect, consequential and/or special loss or damage.
- Subject to clauses 1 and 14.2, [Movebubble's/each Party's] total liability under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not, in aggregate in each Year, exceed 125% of the Subscription Fees paid or payable under the Agreement in that Year.
- All warranties, conditions, terms and undertakings express or implied (including without limitation by statute, custom or usage, a course of dealing, or common law) as to Movebubble's performance of its obligations under the Agreement are, to the fullest extent permitted by applicable law, excluded from the Agreement.
- Movebubble shall indemnify and keep indemnified BTR Operator from and against any and all losses, damages, costs, expenses and any other liabilities of whatever nature suffered, incurred or sustained by BTR Operator in connection with any claim which is brought against BTR Operator as a result of the provision of the Platform or performance of the Services infringing the IPR of any third party, other than to the extent this is as a result of or caused by any BTR Operator Material.
- BTR Operator shall indemnify and keep indemnified Movebubble from and against any and all losses, damages, costs, expenses and any other liabilities of whatever nature suffered, incurred or sustained by Movebubble in connection with any claim which is brought against Movebubble as a result of BTR Operator Material infringing the IPR, proprietary or privacy rights of any third party or as a result of BTR Operator's or its Personnel's breach of clause 3 or 4.4.
- Suspension and Termination for Cause
- Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
- the other Party commits a material breach of any term of the Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
- the other Party is the subject of an Insolvency Event; or
- the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- Without affecting any other right or remedy available to it, if BTR Operator fails to pay any amount due under the Agreement on or before the due date for payment:
- Movebubble shall be entitled to suspend access to and use of the Platform and/or performance of the Services; and/or
- and if BTR Operator remains in default not less than seven (7) days, Movebubble may terminate the Agreement with immediate effect by giving written notice to BTR Operator.
- Without affecting any other right or remedy available to it, if BTR Operator is in breach of clause 3, 6, or 7, Movebubble may suspend access to and use of the Platform and performance of the Services and/or terminate the Agreement, with immediate effect by giving written notice to BTR Operator.
- Consequences of Termination
- On termination of the Agreement:
- BTR Operator's right to access and use the Platform shall immediately cease;
- Movebubble's obligation to provide the Services shall immediately cease;
- BTR Operator shall immediately pay to Movebubble all of Movebubble's outstanding unpaid invoices and interest and, in respect of amounts payable for which no invoice has been submitted, Movebubble may submit an invoice, which shall be payable immediately; and
- no right to a refund of payments made in advance pursuant to the terms of the Agreement shall arise.
- The following clauses shall continue in force upon termination of the Agreement: clauses 1 (Order of Precedence), 9 (Subscription Fees and Payment Terms) 10 (Intellectual Property Rights), 11 (Data Protection), 12 (Confidentiality), 14 (Liability), 15 (Indemnities), 17 (Consequences of Termination), 18 (Publicity), 19 (Non-Solicitation), 21 (Anti-Bribery and Modern Slavery), 22 (Dealings), 23 (Notices), 24 (General) and 26 (Interpretation).
- Termination of the Agreement shall not affect any rights, remedies or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
- BTR Operator agrees that Movebubble may publicise that BTR Operator is a customer of Movebubble and shall be entitled to refer to BTR Operator and use BTR Operator's logo on Movebubble's website and in other marketing materials and announcements.
- BTR Operator shall only use Movebubble's name or IPR as expressly set out in the Agreement.
Neither Party shall, without the prior written consent of the other, at any time from the date of the Agreement or for 6 months following the termination of the Agreement, solicit or entice away from the other Party or employ or attempt to employ any person who is, or has been, engaged as an employee or contractor of the other Party with whom such Party had material contact in connection with the Platform or the Services.
- Events Outside of Control
- Neither Party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events or circumstances beyond its reasonable control, including, strikes, lock-outs or other industrial disputes, failure of utility services, transport, telecoms networks or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law, order, rule, regulation or direction, accident, breakdown of hardware, fire, flood, storm or default of suppliers or subcontractors.
- Nothing in clause 1 shall relieve BTR Operator from its obligation to pay the Subscription Fees when due.
- Anti-Bribery and Modern Slavery
Each Party will comply with applicable anti-bribery laws, including the Bribery Act 2010 and Modern Slavery Act 2015, and maintain and comply with its own policies in relation to the same.
- Assignment and Other Dealings
- BTR Operator shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and/or obligations under the Agreement.
- Movebubble may at any time assign, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and/or obligations under the Agreement.
- Subject to clause 2, any notice or other communication given to a Party under or in connection with the Agreement shall be in writing and delivered by hand, by first-class post or a next Business Day delivery service at its registered office set out in the Front Sheet (or other such address notified by a Party pursuant to clause 23.4 from time to time), or by email to the email address set out in the Front Sheet (or other such email address notified by a Party pursuant to clause 23.4 from time to time).
- Any notice served by a Party intending to terminate the Agreement shall be in writing and delivered by hand, by first-class post or a next Business Day delivery service at its registered office set out in the Front Sheet (or other such address notified by a Party pursuant to clause 4 from time to time).
- Any notice or communication shall be deemed to have been received:
- by hand, on signature of a delivery receipt or at the time the notice is delivered;
- by first-class post or a next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
- by email, at the time of transmission provided this is between 9.00 am and 5.00 pm on a Business Day.
- Either Party may change its address for notices (physical or email address) by giving notice to the other Party in accordance with this clause 23.
- Dispute Resolution
- In the event of any dispute arising out of in connection with the Agreement between the Parties ("Dispute"), the Parties shall endeavour to resolve the Dispute in accordance with this clause 24, as follows:
- the Party raising the Dispute shall notify the other Party in writing setting out the substance of the Dispute and BTR Operator Representative and Movebubble Representative shall meet to discuss such notice within ten (10) Business Days of the other Party receiving such notice;
- BTR Operator Representative and Movebubble Representative shall attempt to work together to resolve the Dispute and if no resolution is found and/or agreed between the Parties within five (5) Business Days, then BTR Operator Representative and Movebubble Representative shall escalate the Dispute for resolution to their respective senior managers; and
- if the Dispute remains unresolved for a further ten (10) Business Days following escalation of the Dispute to BTR Operator Representative's and Movebubble Representative's respective senior managers, then the Parties shall refer the Dispute for mediation under the Centre for Effective Dispute Resolution (CEDR) rules then in force.
- Nothing in this clause 24 shall prevent a Party from taking action or making a claim against the other Party in the English courts.
- No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- The Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each Party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other Party or any other person except as expressly set out in the Agreement in respect of which its sole remedy shall be for breach of contract.
- Nothing in this Agreement shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
- If any provision of the Agreement is declared by any competent court or body to be illegal, invalid or unenforceable, or if any enactment is passed that renders any provision of the Agreement illegal, invalid or unenforceable this shall not affect or impair the legality, validity or enforceability of the remaining provisions of the Agreement.
- No variation of the Agreement shall be effective unless it is made in writing and signed by a duly authorised representative of each of the Parties.
- The Parties do not intend that any term of the Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to the Agreement.
- The Agreement may be executed in any number of counterparts, each of which will constitute an original, but which will together constitute one agreement.
- The Agreement and any dispute or claim arising out of or in connection with its subject matter or formation (including any non-contractual disputes or claims) shall be governed by and shall be construed in accordance with English law. The Parties submit to the exclusive jurisdiction of the English courts for all purposes arising out of and in connection with the Agreement and any dispute or claim referred to in this clause 9.
- Definitions and Interpretation
- In these terms and conditions the following terms shall have the following meanings:
"Activation Date" means the date (specified in the Front Sheet) on which Movebubble first makes the Platform available to BTR Operator for the Subscription Activities;
"Applicable Data Protection Law" means all worldwide data protection and privacy laws and regulations applicable to the personal data in question, including, where applicable, EU Data Protection Law;
"BTR Operator" has the meaning given to it in the Front Sheet and is the build-to-rent operator named as such in the Front Sheet;
"BTR Operator IT Environment" has the meaning given to it in clause 13.2;
"BTR Operator Material" means any information, material, data provided or made available by BTR Operator in connection with the Platform or Services, including any Property particulars;
"BTR Operator Personnel Data" means the personal data of BTR Operator Personnel (including without limitation, name, job title, place of work and photograph) and the scores attributed to a BTR Operator Personnel in respect of its responses rates when interacting with a Movebubble Prospective Renter via the Platform;
"Business Day" means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
"Commencement Date" means the date (specified at the top of the Front Sheet) on and from which the Parties agree to be bound by the terms and conditions of the Agreement;
"Confidential Information" means any information provided by or on behalf of one Party to the other in connection with the Agreement, whether before or after the date of the Agreement and whether or not such information is marked or designated as confidential (including information relating to trade secrets, IPR, know-how, improvements, techniques, specifications, processes, manuals, services, software, business methods, finances, pricing, business plans, marketing plans, development plans, customers and suppliers) and any other information that would be deemed as confidential or proprietary in nature by a reasonable business person, whether in oral, visual, electronic or any other medium, form or format;
"Correspondence" means any correspondence, enquiry or complaint from a data subject, regulator or other third party, including without limitation any request from a data subject to exercise any of its rights under the Applicable Data Protection Laws;
"Destructive Code" means any item, software, device or code which is intended by any person to, or which is likely to, or which may: (a) impair or prevent the operation of any software or computer systems; (b) cause loss of, or corruption or damage to any software or computer systems or data; (c) prevent access to or allow unauthorised access to any software, computer system or data; or (d) damage the reputation of Movebubble, including any computer virus, Trojan horse, worm, software bomb, authorisation key, licence control utility or software lock;
"Dispute" has the meaning given to it in clause 24;
"EEA" means European Economic Area;
"EU Data Protection Law" means:
- Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data (the "Directive");
- Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the "GDPR");
- the Data Protection Act 2018;
- the EU e-Privacy Directive (Directive 2002/58/EC); and
- any and all applicable national data protection laws made under or pursuant to (i), (ii), (iii) and (iv),
in each case as may be amended or superseded from time to time;
"Front Sheet" means the cover page headed 'Front Sheet' appended to these Terms and Conditions;
"Good Industry Practice" means standards, practices, methods and procedures conforming to applicable laws and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances;
"Index" means [Index of Labour Costs per Hour, which is made available at: https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/bulletins/indexoflabourcostsperhourilch/apriltojune2019experimentalstatistics (as updated from time to time)]
"IPR" means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, trade names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
"Insolvency Event" means in relation to a person, where that person ceases or threatens to cease to carry on business, is unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters any composition with creditors generally (or a meeting of creditors of that person is held or an arrangement or composition with or for the benefit of its creditors is proposed, or an order is made or resolution passed for that person to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or that person undergoes any similar or equivalent process in any jurisdiction or undergoes any other arrangement which affects the rights of creditors;
"Know-how" means techniques, ideas, processes, methods and other know-how;
"Maintenance Release" means a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version;
"Mobile Application" means a form of the Software made available by Movebubble via a mobile application named ['Movebubble Partners'] which may be downloaded via Google Play (https://movebubble.onelink.me/1267399920/b796b6fd) and Apple Inc.'s App Store (https://movebubble.onelink.me/1267399920/b796b6fd), as may be updated by Movebubble from time to time and/or notified to BTR Operator;
"Month" means a calendar month commencing on the Activation Date or each calendar month thereafter commencing on the monthly anniversary of the Activation Date;
"Movebubble Prospective Renter" means a person seeking to find and rent a residential property who has subscribed to the consumer version of Movebubble's mobile application which is based on the Software and who intends to benefit from one or more of the Subscription Activities;
"New Version" means any new version of the Software which from time to time is publicly marketed and offered for purchase by way of licence or otherwise by Movebubble in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
"Platform" means the Mobile Application and Web Application, and any other such platform based on the Software, as may be updated by Movebubble from time to time and/or notified to BTR Operator;
"Permitted Purpose" means the purposes of carrying out the Superscription Activities (or as otherwise agreed in writing by the Parties);
"Personnel" means in respect of a Party, its employees, officers and directors;
"Property" means a residential property managed and operated by BTR Operator;
"Renter Chat and Viewings Data" means the personal data of Movebubble Prospective Renters which is obtained by BTR Operator as a result of carrying out the Subscription Activities (including without limitation, Movebubble Prospective Renters responses to BTR Operator Personnel as a result of the activity specified in clause 3.2(b) and details of the Property to be viewed by the Movebubble Prospective Renter, date and time of viewing and if the viewing was successful);
"Renter Data" means Renter Chat and Viewings Data and Renter Profile Data;
"Renter Profile Data" means the personal data of Movebubble Prospective Renters (including without limitation, name, email addresses, mobile number, job title, place of work and photograph);
"Security Incident" means the accidental or unlawful destructions, loss, alteration, unauthorised disclosure of, or access to, the Renter Data;
"Services" has the meaning given to it in clause 5.1;
"Software" means the computer applications created, developed and/or produced by Movebubble, including any Maintenance Release(s) in respect of the same;
"Subscription Activities" has the meaning given to it in clause 3.2;
"Subscription Fees" means the fees payable by BTR Operator in respect of the access to and use of the Platform as set out in the Front Sheet;
"Subscription Period" means the Initial Period, First Renewal Period and each Renewal Period thereafter (unless or until the Agreement is terminated in accordance with provisions of clause 2);
"Terms and Conditions" means clauses 1 to 26 of the Agreement set out in this document headed 'Terms and Conditions';
"Web Application" means a form of the Software made available by Movebubble via a website application which may be accessed at https://partners.movebubble.com/, as may be updated by Movebubble from time to time and/or notified to BTR Operator; and
"Year" means a period of 12 months commencing on the Activation Date or each 12 month period thereafter commencing on the anniversary of the Activation Date.
- In these terms and conditions:
- the defined terms "Agreement", "BTR Operator Representative", "First Renewal Period", "Initial Period", "Movebubble", "Movebubble Representative" and "Renewal Period", have the meanings given to them in the Front Sheet;
- "controller", "data subject", "personal data", "processing", (and "process" and "processed" shall be construed accordingly) "processor", "special categories of personal data" and "supervisory authority" shall have the meanings given to them in EU Data Protection Law;
- a reference to a person includes a natural person, corporate or body, whether or not having separate legal personality;
- a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision;
- clause headings shall not affect the interpretation of the Agreement;
- unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
- unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
- any words following the terms "including", "including without limitation", "include", "in particular", for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
- "written" or "in writing" includes email