MOVEBUBBLE PARTNER SUBSCRIPTION AGREEMENT
TERMS AND CONDITIONS
2.1 The Agreement will commence on the Commencement Date and continue for the Initial Period.2.2 Subject to clauses 3 and 4 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.
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 Partner, and in the event such notice is served, the Agreement will terminate at 23:59 hours GMT on the final day of such notice.
3. Rights to Access and Use the Platform
3.1 In consideration of Partner paying the Platform Fees and, where applicable, the Success Fees, (Minimum of 1%) Partner 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.
3.2 Partner acknowledges that its right to access and use the Platform and its functionality is limited to the following activities:
(a) advertising Properties to Movebubble Prospective Renters;
(b) responding to Property Enquiries from Movebubble Prospective Renters;
(c) booking Viewings of a Property with a Movebubble Prospective Renter;
(d) negotiating the terms of a rental agreement for a Property with a Movebubble Prospective Renter;
(e) entering into a tenancy agreement with a Movebubble Prospective Renter in respect of a Property, and
(f) confirming Approval via the Movebubble Partner Mobile Application as soon as the rental of a Property is agreed and receiving the First Month’s Rental after deduction of the Success Fees where applicable.
together the "Subscription Activities".
3.3 Partner’s right to use the Platform is also subject to the following restrictions and obligations:
(a) Partner 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;
(b) Partner 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;
(c) Partner 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;
(d) Partner 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;
(e) Partner 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;
(f) Partner shall not reproduce, copy, disassemble, decompile, reverse translate or in any other manner decode the Platform, except as permitted by applicable law; and
3.4 Partner 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.
4. Partner Obligations
4.1 Partner shall, and shall procure that its Personnel shall:
(a) 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;
(b) 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;
(c) 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;
(d) supply the Partner Services at all times in accordance with the Partner Terms and Conditions and all applicable law;
(e) confirm Approval via the Movebubble Partner Mobile Application as soon as the rental of a Property to a Movebubble Prospective Renter has been agreed and the Partner has completed all of its checks and entered into a tenancy agreement in accordance with the Partner Terms and Conditions and all applicable laws; and
(f) permit Movebubble (or its appointed third party auditors, provide such auditors are subject to a statutory or contractual duty of confidentiality) to check its relevant books and records to audit Partner's compliance with clause 19.2, and shall make available to Movebubble all information, systems and staff necessary for Movebubble (or its third party auditors) to conduct such audit. Partner acknowledges that Movebubble (or its third party auditors) may enter its premises for the purposes of conducting this audit, provided that Movebubble gives ten (10) Business Days prior notice of its intention to audit, conducts its audit during Partner's normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Partner's operations.
(g) If at any time during the term of this Agreement, a Movebubble Prospective Renter brings to our attention a lower monthly rental price, that is listed directly with the Partner, Subsidiaries or affiliated channels, than the price presented on the Movebubble Sites, the Partner agrees to Approve the lower price for the Movebubble Prospective Renter, if satisfactory evidence has been provided by the Movebubble Prospective Renter that the Partner’s Property is identical and under similar terms and conditions elsewhere.
4.2 Partner 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.
4.3 Partner shall ensure that it has all rights, permissions, consents and licences necessary to supply Partner Materials to Movebubble via the Platform or otherwise, and shall ensure that such Partner Materials are accurate, complete and up to date.
4.4 Partner 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 Partner Materials) in connection with the Agreement.
5. Movebubble's Obligations
5.1 Movebubble shall use reasonable endeavours to provide the following services to Partner as part of Partner's Subscription:
(a) make the Platform available for Partner to facilitate Partner in carrying out the Subscription Activities;
(b) use, modify, adapt and upload the particulars of a Property supplied by Partner and any other Partner Materials in respect of a Property, in order to advertise such Properties on the Platform to Movebubble Prospective Renters;
(c) to set up and facilitate the secure third party account for the benefit of the Partner into which the Movebubble Prospective Renter pays the Reservation Fee and gives pre-authorisation on their accounts for the transmission of the First Month’s Rental to Movebubble to hold on behalf of the Partner and to be released to the Partner on Approval after deduction of the Success Fees,
together the "Services".
5.2 Movebubble shall:
(a) use reasonable care and skill to perform the Services and shall perform the same in accordance with applicable law; and
(b) 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.
6. Movebubble's Restrictions
6.1 Movebubble shall not:
(a) produce any marketing material for Partner or use Partner 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 Partner, save that Movebubble may advertise Properties on the Platform in accordance with any information or data supplied to Movebubble (including Partner Materials); and
(b) without Partner's prior written consent, make or give any representations or warranties concerning the Property or the services provided by Partner (including the Subscription Activities) which are not contained in the Partner Materials supplied to Movebubble.
6.2 For the avoidance of doubt, by entering into the Agreement, Movebubble shall not be restricted from providing additional or alternative services to:
(a) those offered by Movebubble to a Movebubble Prospective Renter; or
(b) those the same or similar to the Subscription Activities,
at any time during the duration of the Agreement and thereafter.
7. Performance of the Platform
7.1 Partner 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.
7.2 Throughout the Subscription Period, Movebubble does not represent, warrant or undertake that the Platform will be completely error-free, or will meet Partner's requirements. Partner acknowledges that the Platform has not been developed to meet Partner's individual requirements.
7.3 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 Partner'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.
7.4 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 Partner while carrying out such maintenance.
8. Analysis of Use of the Platform
8.1 Partner acknowledges and agrees that Movebubble may assess, analyse, aggregate, review and examine Partner'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.
9. Platform Fees, Success Fees and Payment Terms
9.1 Partner shall pay the Platform Fees and Success Fees in accordance with the provisions set out in the Front Sheet.
9.2 If Partner 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 4% 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.
9.3 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 Partner together with the applicable amount.
9.4 Movebubble may, without prejudice to any other rights it may have, set off any liability of Partner to Movebubble against any liability of Movebubble to Partner.
9.5 Movebubble may increase the Platform Fees and Success Fees once each Year to reflect annual changes in the costs of operating the Platform by providing not less than thirty (30) days' notice in writing to Partner, such increase to take affect from the day after the expiry of such notice.
10. Intellectual Property Rights
IPR in Partner Materials
10.1 Partner and its licensors shall retain all right, title and interest in Partner Materials made available to Movebubble by Partner in connection with the Agreement.
10.2 Subject to clause 10.1, Partner 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 Partner Materials only to the extent necessary and for the purpose of providing the Platform and the Services to Partner and performing Movebubble's other obligations under the Agreement, and for no other purpose whatsoever.
IPR in Software
10.3 Movebubble and its licensors shall retain all right, title and interest in the Platform.
10.4 Movebubble grants to Partner 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.
10.5 Movebubble warrants that it owns, or has all necessary rights, authorisations and licences in respect of, all IPR used in the Platform to enable Partner to use the Platform in accordance with the Agreement.
Know-how and works generated under the Agreement
10.6 All right, title and interest in the IPR in:
(a) the Know-how gained by Movebubble through providing the Platform; and
(b) any works created, developed or produced as a result of the activities permitted under clause 8.1,
shall vest in Movebubble upon the creation of such Know-how and works.
11. Data Processing
Independent controllers of Renter Profile Data
11.1 Movebubble will disclose Renter Profile Data to Partner to process strictly for the Permitted Purpose.
11.2 The Parties acknowledge that Movebubble is a controller of the Renter Profile Data it discloses to Partner, and that Partner 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
11.3 Partner 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. Partner 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.
11.4 The Parties acknowledge that Partner 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
11.5 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
(a) 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 Partner for it to process Renter Profile Data for the Permitted Purpose;
(b) Partner 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
(c) Partner 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
(d) 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 Partner.
11.6 Partner shall implement appropriate technical and organisational measures to protect the Renter Data from and against a Security Incident.
11.7 Partner 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 Partner'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.
11.8 Partner 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.
11.9 In the event that Partner receives any Correspondence related to (a) the disclosure of the Renter Profile Data by Movebubble to Partner for the Permitted Purpose; or (b) the Renter Chat and Viewings Data obtained via Partner'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 Partner to respond to the Correspondence, in which case Partner shall respond to the Correspondence on Movebubble's instructions).
Movebubble's obligations as processor of Renter Data and Partner Personnel Data
11.10 The Parties acknowledge and agree that for the purposes of the Agreement, unless otherwise stated in this clause 11, Partner is the controller and Movebubble is the processor of Renter Data and Partner Personnel Data processed in connection with the provision of the Services (as further described in clause 11.14). The Parties shall comply with their respective obligations under all relevant Applicable Data Protection Law.
11.11 Where Movebubble is acting as a processor of Renter Data and Partner Personnel Data, Movebubble:
(a) shall process Renter Data and Partner Personnel Data as is necessary to perform its obligations under the Agreement and in accordance with the documented instructions of Partner, except where otherwise required by Applicable Data Protection Law law applicable to Movebubble. Movebubble shall inform Partner if it becomes aware that Partner's processing instructions infringe Applicable Data Protection Laws;
(b) shall ensure that any person it authorises to process Renter Data and Partner 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 Partner Personnel Data who is not under such duty of confidentiality;
(c) shall implement appropriate technical and organisational measures to protect Renter Data and Partner Personnel Data from a Security Incident, having regard to the measures set out in Article 32 of the GDPR;
(d) may, subject to clause 11.11(e), appoint third party subprocessors to process Renter Data and Partner 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 Partner 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;
(e) shall, if it intends to change a third party subprocessor (including appointing a new third party subprocessor after the Commencement Date), notify Partner and give Partner twenty-eight (28) days' prior written notice before the new third party subprocessor processes any Renter Data and Partner Personnel Data. If by the expiry of such notice:
(i) Partner does not notify Movebubble in writing of any objections to the proposed appointment, Partner shall be deemed to have consent to the appointment of the new third party subprocessor; or
(ii) Partner does notify Movebubble in writing of any objections to the proposed appointment (which must be made on reasonable grounds relating to Partner's compliance with Applicable Data Protection Laws), Movebubble shall not use such new third party sub processor to process Renter Data and Partner Personnel Data until reasonable steps have been taken to address Partner's objections and Partner has been provided with a reasonable written explanation of the steps taken to address Partner's objections;
(f) may transfer Renter Data and Partner 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;
(g) upon becoming aware of a Security Incident, shall inform Partner without undue delay and shall provide such information and cooperation as Partner may require in order for Partner 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 Partner informed of all material developments in connection with the Security Incident;
(h) provide reasonable cooperation and assistance to Partner to conduct a data protection impact assessment in accordance with the Applicable Data Protection Laws, including, if necessary, to assist Partner to consult with the relevant supervisory authority; and
(i) shall, in the event that Movebubble receives any Correspondence related to its processing of Renter Data and Partner 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 Partner to respond to the Correspondence in accordance with any requirements under Applicable Data Protection Law.
11.12 Upon the termination or expiry of the Agreement, Movebubble shall at Partner's request return to Partner or destroy all Renter Data and Partner 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:
(a) be without prejudice to any requirements to retain Renter Data and Partner Personnel Data for compliance with legal or contractual obligations; and
(b) not apply to any Renter Data Movebubble is processing in its capacity as a controller.
11.13 Movebubble shall permit Partner (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 11.11, and shall make available to Partner all information, systems and staff necessary for Partner (or its third party auditors or a supervisory authority) to conduct such audit. Movebubble acknowledges that Partner (or its third party auditors or a supervisory authority) may enter its premises for the purposes of conducting this audit, provided that Partner gives Movebubble twenty (20) Business Days prior notice of its intention to audit, conducts its audit during Movebubble's normal business hours (as notified to Partner), 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. Partner 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.
11.14 The Parties acknowledge and agree that:
(a) the subject matter and duration of the processing is: the performance of the Services by Movebubble to Partner in accordance with the terms of the Agreement, subject the clause 11.12;
(b) the nature and purpose of the Processing is: to facilitate the Partner carrying out the Subscription Activities for the purposes of securing new renters for the Properties;
(d) the categories of data subjects is: Movebubble Prospective Renters and Partner Personnel.
11.15 This clause 11 shall survive termination or expiry of the Agreement. Upon termination or expiry of the Agreement.
Party agrees, where it is the recipient of any Confidential Information:
(a) to keep Confidential Information secret and confidential;
(b) 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
(c) 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.
12.2 The restrictions in clause 12.1 shall not apply in respect of any Confidential Information which:
(a) 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;
(b) has been received from a third party not under any confidentiality obligation to the discloser in respect of such information;
(c) 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
(d) is independently developed by the recipient or its representatives who had no access to the discloser's Confidential Information.
12.3 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.
12.4 The recipient shall be entitled to disclose Where such a
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. disclosure is necessary, the recipient shall so far as legally permitted, promptly notify the discloser of the same in writing prior to disclosure.
12.5 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:
(a) breach its obligations of confidentiality under the Agreement or under agreements with third parties; or
(b) infringe the IPR of the other Party or any third party.
12.6 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 Partner to any third party.
13.1 Partner shall not, through its access to and use of the Platform, introduce any Destructive Code into the Platform.
13.2 Partner 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 ("Partner IT Environment"), to prevent any Destructive Code from entering, or being introduced into, the Platform throughout the duration of the Agreement.
13.3 Partner shall ensure that any Partner Materials uploaded, posted, otherwise transmitted or provided to Movebubble via the Platform or otherwise is free from any Destructive Code.
14.1 Nothing in the Agreement limits or excludes liability:
(a) for death or personal injury caused by negligence;
(b) for fraud or fraudulent misrepresentation;
(c) for any statutory implied terms or any other liability that cannot be limited or excluded by applicable law; or
(d) under the indemnity in clause 15.2.
14.2 Subject to clause
14.1, 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:
(a) loss of profits and/or revenue;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software;
(g) wasted expenditure; or
(h) any indirect, consequential and/or special loss or damage.
14.3 Subject to clauses 14.1 and 14.2, Movebubble'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.
14.4 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.
15.1 Movebubble shall indemnify and keep indemnified Partner from and against any and all losses, damages, costs, expenses and any other liabilities of whatever nature suffered, incurred or sustained by Partner in connection with any claim which is brought against Partner 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 Partner Material.
15.2 Partner 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 Partner Material infringing the IPR, proprietary or privacy rights of any third party or as a result of Partner's or its Personnel's breach of clauses 4, 11, 12, 13 and 19.
16. Suspension and Termination
16.1 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:
(a) 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;
(b) the other Party is the subject of an Insolvency Event; or
(c) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.2 Without affecting any other right or remedy available to it, if
Partner fails to pay any amount due under the Agreement on or before the due date for payment:
(a) Movebubble shall be entitled to suspend access to and use of the Platform and/or performance of the Services; and/or
(b) and if Partner remains in default not less than seven (7) days, Movebubble may terminate the Agreement with immediate effect by giving written notice to Partner.
16.3 Without affecting any other right or remedy available to it, if Partner 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 Partner.
17. Consequences of Termination
17.1 On termination of the Agreement:
(a) Partner's right to access and use the Platform shall immediately cease;
(b) Movebubble's obligation to provide the Services shall immediately cease;
(c) Partner 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
(d) no right to a refund of payments made in advance pursuant to the terms of the Agreement shall arise.
17.2 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).
17.3 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.
18.1 Partner agrees that Movebubble may publicise that Partner is a customer of Movebubble and shall be entitled to refer to Partner and use Partner's logo on Movebubble's website and in other marketing materials and announcements.
18.2 Partner shall only use Movebubble's name or IPR as expressly set out in the Agreement.
19.1 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.
19.2 Partner undertakes to Movebubble that it will not, during the Term and for 12 months thereafter:-
(a) Directly or indirectly solicit or endeavour to entice away from Movebubble any customer or prospective customer with a view to providing goods or services to that customer directly and not through Movebubble unless where a customer is already an existing customer of the Partner; and
(b) Launch or operate a business similar to Movebubble in competition with the business of Movebubble (a “Competing Business”). If and to the extent the Partner operates a Competing Business as at the Commencement Date it shall disclose the identity of such Competing Business to Movebubble and shall, in relation to such Competing Business, undertake to Movebubble that it will not market or promote such Competing Business to customers or prospective customers of Movebubble; and
(c) Circumvent or attempt to circumvent the application of this Agreement (and the payment of the Success Fees) by entering or attempting to enter into arrangements in respect of a Property with an Introduced Movebubble Prospective Renter otherwise than via the Platform.
20. Events Outside of Control
20.1 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.
20.2 Nothing in clause 20.1 shall relieve Partner from its obligation to pay the Subscription Fees when due.
21. 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.
22. Assignment and Other Dealings
22.1 Partner 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.
22.2 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.
23.1 Subject to clause
23.2, 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).
23.2 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
23.4 from time to time).
23.3 Any notice or communication shall be deemed to have been received:
(a) by hand, on signature of a delivery receipt or at the time the notice is delivered;
(b) 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
(c) by email, at the time of transmission provided this is between 9.00 am and 5.00 pm on a Business Day.
23.4 Either Party may change its address for notices (physical or email address) by giving notice to the other Party in accordance with this clause
24. Dispute Resolution
24.1 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:
(a) the Party raising the Dispute shall notify the other Party in writing setting out the substance of the Dispute and Partner Representative and Movebubble Representative shall meet to discuss such notice within ten (10) Business Days of the other Party receiving such notice;
(b) Partner 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 Partner Representative and Movebubble Representative shall escalate the Dispute for resolution to their respective senior managers; and
(c) if the Dispute remains unresolved for a further ten (10) Business Days following escalation of the Dispute to Partner 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.
24.2 Nothing in this clause 24 shall prevent a Party from taking action or making a claim against the other Party in the English courts.
25.1 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.
25.2 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.
25.3 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.
25.4 Nothing in this Agreement shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
25.5 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.
25.6 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.
25.7 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.
25.8 The Agreement may be executed in any number of counterparts, each of which will constitute an original, but which will together constitute one agreement.
25.9 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 25.9.
26. Definitions and Interpretation
26.1 In these terms and conditions the following terms shall have the following meanings:
“Approval” means approval by the Partner of the Movebubble Prospective Renter in respect of the rental of a certain Property triggering the release of the First Month’s Rental to the Partner after deduction of the agreed Success Fees. Such approval to be given via the Partner Mobile Application without delay and as soon as practicable.
"Activation Date" means the date (specified in the Front Sheet) on which Movebubble first makes the Platform available to Partner for the Subscription Activities;
"Applicable Data Protection Law" means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
"Partner" has the meaning given to it in the Front Sheet and is the build-to-rent operator named as such in the Front Sheet;
"Partner IT Environment" has the meaning given to it in clause 13.2;
"Partner Material" means any information, material, data provided or made available by Partner in connection with the Platform or Services, including any Property particulars;
"Partner Personnel Data" means the personal data of Partner Personnel (including without limitation, name, job title, place of work and photograph) and the scores attributed to a Partner 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;
“Competing Business” has the meaning set out in clause 19.2
"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:
(a) 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");
(b) 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");
(c) the Data Protection Act 2018;
(d) the EU e-Privacy Directive (Directive 2002/58/EC); and
(e) 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;
“First Month’s Rental” means the specified charge for the first month of rental in respect of a Property as set out in the tenancy agreement and notified to Movebubble for collection (less the sum being held as the Reservation Fee) on Approval.-
"Front Sheet" means the cover page headed 'Front Sheet' appended to these Terms and Conditions which sets out the particulars of the contract applicable to the Partner including, but without limitation, the applicable Activation Date, Initial Term and details of the relevant Platform Fees and Success Fees;
"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;
"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 in which that person has any presence or assets or undergoes any other arrangement which affects the rights of creditors;
“Introduction” the introduction via the Movebubble Platform of Movebubble Prospective Renters to the Partner for the purpose of renting Properties represented by the Partner and the purchase of complementary services where agreed by Movebubble. Introduce, Introduces and Introduced shall be interpreted accordingly;
"Know-how" means techniques, ideas, processes, methods and other know-how;
“KPI” means the key performance indicators that represent basic level for expected practice to meet the Partner obligations in delivering the Partner Services;
"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 Partner;
"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 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;
“Movebubble Subscription Agreement” means the Front Sheet including any schedules attached to it together with these Terms and Conditions as amended from time to time;
"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;
“Partner Marks” means all trade marks, trade names and services marks, trade dress, logos, urls (where applicable) or identifying slogans of the Partner, whether registered or not;
“Partner Terms and Conditions” the terms and conditions of supply that the Partner requires the Movebubble Prospective Renter and its other customers to sign up to from time to time to access the Partners Services;
“Partner Services” the services of the Partner accessed via the Movebubble Platforms by Movebubble Prospective Renters in facilitating their Viewings, Offer or in any other interaction provided to the Movebubble Prospective Renter with regard to their Property search that the Partner provides. Any such Partner Services will be provided by the Partner to Movebubble Prospective Renters in accordance with the Partner Terms and Conditions and the laws applicable to property searches and rentals in the United Kingdom or such other jurisdiction as may be applicable from time to time;
"Platform or Movebubble 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 Partner;
"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;
“Plan” means the plan incorporating the Subscription Service Fee and/or Success Fee or combination of the two relating to the Movebubble Services applicable to the Partner set out on the Front Sheet as determined by Movebubble and based on factors including but not limited to relative size, reach and profile of the Partner and the predicted volume of Property Enquiries;
"Property" means a residential property managed and operated by Partner that is available for let to renters in the Territory and represented by the Partner acting with the authority and requisite legal permissions from the landlord or his authorised representative;
“Property Enquiry” communication via the Movebubble Platform from a Movebubble Prospective Renter to the Partner in respect of a Property that requires a return communication from the Partner to the Movebubble Prospective Renter in a timely manner;
“Relevant Contract” a contract for the supply of Partner Services (whether in writing, oral or based on a course of dealings) entered into during the Term between the Partner and a Movebubble Prospective Renter
"Renter Chat and Viewings Data" means the personal data of Movebubble Prospective Renters which is obtained by Partner as a result of carrying out the Subscription Activities (including without limitation, Movebubble Prospective Renters responses to Partner 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);
“Reservation Fee” the refundable fee taken from a Movebubble Prospective Renter in registering his or her interest in renting a Property and paid into a designated third party account for the benefit of the Partner. Such Reservation Fee shall automatically be converted into part payment of the First Monthly Rental due upon Partner Approval;
"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;
“Success Fees” means the applicable, non-refundable commission fees for Introductions made via the Platform and paid by the Partner to Movebubble by way of deduction of the First Monthly Rental upon Approval.
"Subscription Activities" has the meaning given to it in clause 3.2;
"Platform Fees" means the subscription fees payable by Partner in respect of the access to and use of the Platform facilitating the Introduction of Movebubble Prospective Renters 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';
“Viewings” the established practice where Movebubble Prospective Renters inspect a Property that they are interested in letting before they enter into a formal arrangement or tenancy agreement.
"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 Partner;
“Website” the Movebubble consumer facing website located at www.movebubble.com or such other url or urls as Movebubble may nominate from time to time; 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.
26.2 In these terms and conditions:
(a) the defined terms "Agreement", "Partner Representative", "First Renewal Period", "Initial Period", "Movebubble", "Movebubble Representative" and " Renewal Period", have the meanings given to them in the Front Sheet;
(b) "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;
(c) a reference to a person includes a natural person, corporate or body, whether or not having separate legal personality;
(d) 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;
(e) the Schedules form part of the Movebubble Subscription Agreement and shall take effect as if set out in the full body of the Agreement. Any reference to this Agreement includes the Schedules;
(f) clause headings shall not affect the interpretation of the Agreement;
(g) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
(h) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
(i) 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 (j) "written" or "in writing" includes email.